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Marcon Erectors, Inc. - Order, December 31, 2000

Order, December 31, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 27 and 17 of the Environmental Conservation Law,
Article 12 of the Navigation Law and Parts 372, 373, 376, 612, 613 of
Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York by

DOUGLAS GIAMBRONE AND
MARCON ERECTORS, INC.,
File No. 97-66

Respondents.

ORDER

DEC Case No. R9-4454-97-11

WHEREAS:

  1. Pursuant to Section 622.12 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation duly served a Motion for Order without Hearing on Douglas Giambrone and Marcon Erectors, Inc., ("Respondents"). Respondents Answer was duly served on July 7, 2000, all as more fully recorded in Administrative Law Judge ("ALJ") Molly T. McBride's Summary Hearing Report (attached).
  2. This matter concerns Respondents being charged with sixteen alleged violations of the Federal Resource Recovery Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901, as administered by the Department pursuant to Environmental Conservation Law ("ECL") Article 27, Collection, Treatment and Disposal of Refuse and Other Solid Waste; ECL Article 17, Water Pollution Control, and Article 12 of the Navigation Law; and 6 NYCRR Parts 372, 373, 376, 612 and 613.
  3. I adopt the recommendation of the ALJ to grant Staff's Motion for Order without Hearing. Further, I adopt the ALJ's recommendation with respect to penalty and remediation. The ALJ's analysis of the evidence and the pertinent penalty guidance and the arguments thereon, will not be disturbed based on the facts on this record. Accordingly, I concur with the ALJ that the Respondents pay a $135,000 penalty and complete the clean up of the site.

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

  1. Pursuant to 6 NYCRR 622.12, the Motion for Order without Hearing is granted.
  2. Respondents Giambrone and Marcon Erectors, Inc., shall pay a civil penalty of One Hundred Thirty Five Thousand ($135,000) dollars within 60 days of service of this Order.
  3. Within thirty (60) days of service of the Order, Respondents shall:
    1. remove and properly dispose all hazardous waste which is stored on the site and submit disposal receipts with 10 days of Respondents receipt of same;
    2. discontinue the practice of placing on the ground hazardous waste removed from any ASTs prior to placement in a suitable container for off-site disposal;
    3. discontinue the practice of mixing hazardous waste B002 from a source other than a spill, with any substance to conform with land disposal restrictions; and
    4. comply with the requirement of 6 NYCRR 373.3-10(g) including removing and disposing of the tank system and submit disposal receipts to Staff within 10 days of receipt of same.
  4. All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 9 Director, 270 Michigan Ave., Buffalo, New York 14203-2999.
  5. The provisions, terms and conditions of this order shall bind the Respondent, its agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
_________________________________
By: John P. Cahill, Commissioner

Dated: Albany, New York
December 31, 2001

TO: Douglas Giambrone
Marcon Erectors, Inc.
1 Howell Street
Buffalo, New York 14207

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 27 and 17
of the Environmental Conservation Law, Article 12
of the Navigation Law and Title 6 of the Official Compilation of Codes, Rules
and Regulations of the State of New York

by

DOUGLAS GIAMBRONE AND
MARCON ERECTORS, INC.,

97-66

Respondents.

SUMMARY REPORT ON
MOTION FOR ORDER
WITHOUT HEARING

DEC Case No.

R9-4454-97-11

Procedural Background

The New York State Department of Environmental Conservation ("DEC Staff") commenced this action by service on or about February 22, 2000 of a Motion for Order without Hearing pursuant to Title 6 of the New York Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") section 622.12. Staff submitted the following affidavits in support of the motion: affidavit of Francine Gallego, DEC Environmental Engineer I, sworn to on February 17, 2000; and affidavit of Thomas Corbett, Environmental Chemist II, sworn to on February 17, 2000; affidavit of Maurice Moore, Love Canal Treatment Facility Operator, sworn to on February 22, 2000. Respondents served an Answer dated May 22, 2000 and the affidavit of Douglas Giambrone sworn to on May 18, 2000 in opposition to the motion. Staff's Motion was also served on the Office of Hearings and Mediation Services and was assigned to Administrative Law Judge ("ALJ") Helene Goldberger and subsequently, ALJ Edward Buhrmaster. Staff, with permission of ALJ Buhrmaster, served a Reply to the Respondents' Answer on or about July 7, 2000. Respondents requested of ALJ Buhrmaster the opportunity to respond to the Staff's Reply. That request was denied by ALJ Buhrmaster on July 17, 2000 based on his finding that Staff's Reply was limited to addressing Respondents' affirmative defense and arguments made in their opposing papers and advanced no new theories. The matter was subsequently transferred to ALJ Molly T. McBride due to the caseload of ALJ Buhrmaster.

A contested motion for order without hearing shall be granted, if upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant granting summary judgment under the Civil Practice Law and Rules of New York ("CPLR") in favor of any party. 6 NYCRR 622.12(d) CPLR 3212 allows for the granting of summary judgment when no issue of fact remains.

BACKGROUND

DEC Staff has brought action against the Respondents alleging 16 violations of the Federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901, administered under Environmental Conservation Law ("ECL") Article 27 and 6 NYCRR Parts 372, 373, 376 and two violations of the Navigation Law of the State of New York. The United States Environmental Protection Agency ("EPA") has delegated authority to the New York State DEC to administer the RCRA program. DEC Staff seeks an Order without hearing pursuant to 6 NYCRR 662.12 based upon Respondents' non-compliance with statutory and regulatory requirements regarding the storage and disposal of hazardous waste.

Staff's Position

The violations alleged by DEC Staff in its complaint involve property owned by Respondent Douglas Giambrone and leased by Respondent MarCon Erectors, Inc., ("MarCon"). MarCon is owned entirely by Respondent Giambrone. The property has three above ground storage tanks ("AST") located on it. The site held the three ASTs prior to Respondent Giambrone's purchase of the property in 1980. DEC Staff received a spill complaint regarding the property in 1995. Through its site visits, contact with Respondents, and its investigation, DEC Staff learned that the ASTs contained petroleum product that was placed in the tanks by a former owner, Ashland Oil Company ("Ashland").

DEC Staff alleges that in 1985 Respondents caused the top of the largest AST to be cut away, leaving the stored material open to the environment. During the years following that action, the DEC Staff alleges that the hazardous waste in the ASTs entered the environment. DEC Staff alleges that Respondents improperly stored, treated and generated waste and never reported waste spills as required by the ECL and the regulations. The DEC Staff also alleges that Respondents never followed the required clean-up procedures when the spills occurred. It was determined that the material in the ASTs is hazardous waste as defined in New York law.

DEC Staff acknowledges that Respondents attempted to remediate the site after being advised by DEC Staff of their responsibilities with the property. However, DEC Staff alleges that additional violations occurred during the clean-up process, including additional spills and mismanagement of the hazardous waste.

Respondents' Position

Respondents state that the violations alleged have not been proven. The main thrust of Respondent's defense is that the waste on the site had been "permanently disposed" of by the former owner Ashland. Respondents also take the position that RCRA is not applicable here.

Respondents claim that they did not operate a waste facility so they can not be held to the same standards and have the same liability as those who did operate such a site. Further, they question the source of the polychlorinated biphenyls ("PCB"s) contamination found at and around the subject property.

FINDINGS OF FACT

After a review of the pleadings and papers submitted herein by the parties, I find that the following facts are not in dispute:

  1. Douglas Giambrone ("Giambrone") owns a certain parcel of property commonly known as One Howell Street in Buffalo, New York ("property"). He purchased the property on October 29, 1980.
  2. MarCon is a custom window and door installation company. Mr. Giambrone is MarCon's president and chief executive officer. Shortly after he purchased the property, Respondent Giambrone leased that property to MarCon.
  3. Mr. Giambrone purchased the property from B. Hoffman Roofers Inc., a business engaged in commercial and residential roofing. Hoffman purchased the property from Ashland in 1971.
  4. The property was formerly operated by Ashland as a distribution facility for home heating oil.
  5. At the time of this motion two 10,000-gallon horizontal ASTs resting on supports and the bottom of a 25,000-gallon vertical AST measuring about 20-30 feet in diameter by 2-3 feet high were located on the property.
  6. The ASTs are located behind cracked concrete barriers. The floor of the containment area is largely covered with soil and vegetation, making an inspection difficult. The containment area is not operated to prevent any migration of wastes or accumulated liquid out of the system to the soils, ground water or surface water.
  7. The two 10,000-gallon ASTs are rusty and open at one end.
  8. The 25,000-gallon AST has been cut down to a height of about three feet, so that it stands uncovered. The Respondents cut off the 25,000-gallon AST top in 1985, after they were asked by the City of Buffalo to paint the AST for aesthetic reasons. The Respondents determined that painting the AST would be a short-term solution and would necessarily involve repainting in the future. Therefore, they cut off its top rather than incur future painting and related maintenance costs.
  9. This open AST allows waste to flow directly into the containment area. Since the AST was cut down to a 2-3' height, 565 inches of precipitation have fallen in the Buffalo area where the property is located. The precipitation had to enter the AST after the top was removed in the mid-1980's. The resulting mix of precipitation and AST contents has necessarily overflowed the AST or left the AST through the sidewalls.
  10. The cut area around the circumference of the AST is uneven. The waste is 6 inches from the top in some areas of the 25-30 feet diameter AST and level with the top in other areas. There is insufficient space in the opened 25,000 gallon AST to protect against spills from wave or wind action.
  11. Most of the base of the cut-down, open-top 25,000-gallon AST is covered with vegetative growth, so it cannot be determined whether the AST contains a bottom or rests on the ground surface. The AST has broken seams and cracks in its side walls.
  12. Soil samples taken in and outside of the containment area in 1997 contained PCB levels at varying amounts from 7 parts per million ("ppm") to 230 ppm. Tests conducted in 1997 revealed that PCB levels were detected in the three ASTs at levels from 186 ppm to 259 ppm. Recommended soil cleanup is 1 ppm as per the Department's Recommended soil cleanup objectives from Technical and Administrative Guidance Memorandum, HWR-94-4046.
  13. The ASTs were not marked with the start of accumulation of waste date, neither were they marked with the words "Hazardous Waste" as required by the regulations.
  14. When Mr. Giambrone purchased the property in 1980, he was made aware of the ASTs and Ashland's use of the property by B. Hoffman Roofers. The Respondents have never used the ASTs.
  15. On September 28, 1995, the DEC Staff received a spills complaint concerning leakage of an unknown material from the storage ASTs to the ground. The complaint was not made by the Respondents.
  16. Francine Gallego, a Department engineer, inspected the site the day the complaint was made. Ms. Gallego observed that the area around the ASTs was contaminated with spilled petroleum product and that sludge remained in the open-top 25,000 gallon AST.
  17. Ms. Gallego informed Respondent Giambrone that he would have to clean the ASTs and spillage according to a Department-approved schedule. Following her inspection, she checked with the Department's petroleum bulk storage unit and was advised that none of the ASTs were registered.
  18. On October 18, 1995, Ms. Gallego sent Respondent Giambrone a letter about clean-up requirements. She wrote that:
    • All contaminated material would have to be removed and stored onsite in a rolloff or on plastic;
    • The contaminated material would have to be sampled and analyzed for benzene and ignitability, to determine if it is hazardous;
    • This analysis would have to be done by a state-certified laboratory and the results furnished to the Department by the laboratory; and
    • If the material tested as hazardous, the Department would have to be contacted for further information before proceeding with clean-up.
  19. Ms. Gallego's letter also advised Respondent Giambrone that he had unregistered ASTs, and that he had to either register and maintain them according to standards in the Department's petroleum bulk storage regulations, or close them in accordance with the regulations.
  20. Ms. Gallego's letter requested that a work schedule be furnished by December 15, 1995. None was, and there was no other response to the letter. Ms. Gallego sent Respondent Giambrone another letter dated January 12, 1996, enclosing the prior letter and requesting a response by January 31, 1996.
  21. On January 24, 1996, Respondent Giambrone called and told Ms. Gallego he was planning to have the material analyzed and would then submit a remediation plan and contact the Department with more information.
  22. On March 8, 1996, Paul Mathias, Respondents' attorney, wrote a letter to Ms. Gallego stating that the ASTs and containment system were being inspected to determine whether they contained any hazardous material and to determine if this material could leak from the containment system. The letter also indicated that he and Respondent Giambrone were soliciting prospective bids for the possible removal and disposal of the storage ASTs.
  23. On April 29, 1996, Ms. Gallego wrote a letter to Respondent Giambrone asking for an update by May 16, 1996 on the status of work at the site. She noted that all three of the ASTs would need to be cut open and cleaned and the sludge inside them properly disposed of, and that the oil spillage around the ASTs would need to be removed and disposed of also.
  24. On May 24, 1996, Ms. Gallego received a letter from Mr. Mathias indicating that he had scheduled an on-site meeting about remediation with Russ Savage, an environmental consultant with Nature's Way, and that Mr. Mathias would contact her after the meeting. He did not.
  25. Ms. Gallego sent letters to Respondent Giambrone and Mr. Mathias on September 24, and November 1, 1996, requesting updates. On October 18, and November 18, 1996, she received copies of letters from Mr. Mathias to Mr. Savage, in which Mr. Mathias sought Mr. Savage's assistance in completing a work plan.
  26. On November 22, 1996, Respondent Giambrone called Ms. Gallego to say that he would have a contract with a company to remove the ASTs by the beginning of January 1997.
  27. Hearing nothing further from Respondent Giambrone, Ms. Gallego sent him a letter dated February 6, 1997, providing him, as a party potentially responsible for the spill at the property, an opportunity to remediate. If Respondent Giambrone declined the opportunity, Ms. Gallego wrote, the Department would do the work with its own contractor, and if Respondent Giambrone were then determined to be responsible for the spill, he, and possibly his insurance company, would be responsible for the cost.
  28. Ms. Gallego requested a decision from Respondent Giambrone by March 4, 1997. She sent the February 6, 1997 letter to the One Howell Street address by certified mail, return receipt requested. Despite three delivery attempts, Respondent Giambrone did not claim the letter, so it was re-sent by regular mail on March 3, 1997.
  29. On March 4, 1997, Ms. Gallego received a March 3, 1997 letter from Mr. Giambrone indicating that the ASTs contained non-hazardous residue heating oil, which would be removed to either a waste oil burning facility or a licensed landfill. By a letter dated March 5, 1997, Ms. Gallego advised Respondent Giambrone that this proposal was acceptable, but that he would also have to dispose of all contaminated material around the ASTs, cut the ASTs open and clean them out, and dispose of the ASTs as scrap. Ms. Gallego requested a response by March 31, 1997, to verify that these things would be done. When no response was received, Ms. Gallego wrote to Respondent Giambrone again on April 8, 1997, requesting that he answer her March 5 letter by May 7, 1997.
  30. On April 23, 1997, Ms. Gallego and her supervisor, Robert Leary, inspected the property. No one was present and no work had been done there with regards to clean-up. She again sent a letter to Respondent Giambrone on August 28, 1997 identifying both Respondents Giambrone and MarCon as potentially responsible parties and setting forth the options of investigating and remediating the site or signing a right of entry form allowing DEC Staff to manage the site.
  31. On September 4, 1997 Respondent Giambrone contacted Ms. Gallego to inform her he had hired Safety-Kleen to perform the clean-up work at the site. Safety Kleen advised Ms. Gallego shortly thereafter that work would commence the following week.
  32. Ms. Gallego again visited the site on September 12, 1997 to view the clean-up. Safety-Kleen's subcontractor, National Vacuum was on-site cleaning out the 10,000 gallon ASTs.
  33. A September 15, 1997 inspection revealed that the two 10,000 gallon ASTs were cleaned out, although not to the standards dictated in 6 NYCRR 373.2.
  34. Safety-Kleen contacted Ms. Gallego on September 16, 1997 requesting a hauler's permit to haul waste without a generator's identification. It was then that DEC Staff learned that the material at the site tested as a "hazardous waste". It met the criteria as a hazardous waste as it was a solid waste that contained PCBs at a level over 50 ppm.
  35. DEC Staff learned at that time, for the first time, that results from sites tested revealed PCB at levels of 186 ppm & 259 ppm in the 10,000 gallon ASTs and 214 ppm in the 25,000 gallon tank. A copy of the results are contained in Exhibit 21 of Gallego affidavit.
  36. Ms. Gallego and her supervisor Mr. Leary visited the site on September 17, 1997. No one was on the property; however, roll-off containers used to haul waste were present. On a September 18, 1997 site visit, the roll-offs were gone and no one was present. Ms. Gallego learned that the roll-offs were sent to Chemical Waste Management for disposal. DEC Staff requested that Safety-Kleen provide receipts for the disposal and a remediation plan.
  37. At a September 22, 1997 site visit a National Vacuum employee reported to DEC Staff that due to the hardness of the material in the ASTs, water had to be mixed with it to remove the material.
  38. The slurry that resulted in the two 10,000 gallon ASTs was so liquified that it had to be mixed with sawdust and woodchips to be cleaned out. Ms. Gallego observed what appeared to be recent spills of this substance on the ground at the site on September 22, 1997. Respondents did not report this spill either.
  39. Ms. Gallego also observed that sludge from the ASTs had seeped under the retaining wall. Ms. Gallego stated that the seepage occurred over a long period of time, likely dating to 1985 when the Respondents cut down the tank.
  40. The two roll-off containers containing the material removed from the two 10,000 gallon ASTs were rejected by CWM. The waste was no longer suitable for landfill disposal because liquid, sawdust and woodchips had been added.
  41. Mr. Leary informed Respondents by letter dated September 22, 1997 that contamination was evident around the 25,000 gallon AST and outside of the concrete retaining wall. A request was again made for a remediation plan.
  42. Ms. Gallego visited the site on September 25, 1997. She observed that a fence around the site was pushed in and access to the contaminated site was now possible.
  43. By letter dated October 3, 1997 Respondents submitted analytical data regarding the waste at the site and advised DEC Staff that a third contractor, Arric, had been hired to dispose of remaining materials. The data submitted to DEC Staff indicated PCB levels as high as 16,000 ppm in the 25,000 gallon AST. DEC Staff advised Respondents that a remediation plan was still necessary.
  44. Ms. Gallego visited the site on October 9, 1997 and observed that the 25,000 gallon AST contained material that was black, solid and oily. A gray slurry was observed in two roll-off containers on-site. These contained waste removed from the 25,000 gallon AST. No markings were on the containers noting the date that accumulation began.
  45. Tank tightness testing results were never submitted to DEC Staff. The open top AST remained uncovered at the last DEC Staff inspection in 1999. The contaminated soil had not been cleaned up from the site as of the last DEC Staff inspection in 1999.

CONCLUSIONS OF LAW

RCRA Applicability

There are three elements that must be established in order to find a violation of RCRA. These elements are as follows:

  1. Respondent is a "person" AND "owner" or "operator" of a facility within the meaning of RCRA (6 NYCRR 370.2).
  2. Respondent treated, stored, or disposed of hazardous waste at the facility.
  3. Respondent does not have a permit for the treatment, storage, or disposal of the hazardous waste.(1)

Element One

Examining the elements separately, I find that the Respondents meet the criteria established under that first element. The Respondents meet the definition of "person" in 6 NYCRR 370.2. It is defined to include a person(Giambrone) and corporation(MarCon) as well as others. In addition to meeting the "person" definition, the Respondent Giambrone meets the definition of "owner". An owner is defined as a person who owns any facility subject to regulation under 6 NYCRR Parts 370-374 & 376.(2) Respondent MarCon meets the definition of "operator" which reads: "...means the person who is responsible for the overall operation of a hazardous waste management facility ."(3) This property meets the definitions of "facility" as defined and regulated under the regulations in 6 NYCRR parts 370-374 and 376 as detailed further herein.

I conclude that the first element is established.

Element Two

The second element examines whether the Respondents treated, stored or disposed of hazardous waste at the facility. Respondents argue that the Department has failed to prove that the Respondents engaged in any of these three activities. I disagree and find that DEC Staff has met its burden of proof in establishing that the property was used by the Respondents for the "storing, treating or disposing" of hazardous waste.

First, the material in the ASTs has been shown to be "hazardous waste" as defined in 6 NYCRR 371.4(e). All solid wastes containing 50 ppm by weight ... or greater of PCBs are a hazardous waste. As detailed by DEC Staff in its motion papers, petroleum oil or other liquid containing 50 ppm or greater of PCBs but less than 500 ppm PCBs is assigned hazardous waste number B002.(4) PCB wastes including contaminated soil, solids and sludges are assigned hazardous waste number B007(5). As stated herein, the materials at Respondents' property met these criteria for B002 and B007 waste. Respondents have not disputed that hazardous waste determination.

It is not disputed that Ashland had left the three ASTs containing petroleum at this property when it sold the property. Respondents argue that the waste at issue was permanently disposed of by Ashland several years before Giambrone's ownership of the property. I find that this is not a viable defense. First, DEC Staff correctly argues that Respondents have offered no proof of Ashland's permanent disposal. Respondents ask us to assume this with no proof to support the assumption. Respondents allege that the actions of Ashland in placing the material in a concrete containment area and selling the property is sufficient to establish "permanent disposal." Second, DEC Staff also argues that this type of storage is not permitted for permanent disposal of hazardous waste. Respondents provide no legal authority to refute this. Lastly, Respondents contention that the waste was permanently disposed of is destroyed by Respondents own actions in cutting down the one AST. Therefore, Respondents argument of permanent disposal is rejected.

DEC Staff has sufficiently established and, Respondents have not disputed, that waste was present in the ASTs at the property. Accordingly, I find that the Respondents "stored" hazardous waste at the site since the purchase of the property in 1980.

Respondents cite United States v. WCI Steel, Inc., supra, in support of their argument that they did not treat, store or dispose of hazardous waste at the site. However, their, argument is not persuasive. WCI involved a steel making operation that had a RCRA Part B permit but allegedly operated outside the permit guidelines. This decision fails to support the Respondents' defense and Respondents fail to state why the case is contrary to the DEC Staff's arguments. The Court in WCI did not state that the RCRA program is limited to cases where a permit has been issued. I see no other argument to be made from that case that could be used to support the Respondents. WCI did examine sampling methodology. However, Respondents do not question the sampling methods used by the DEC Staff or its own contractors' sampling methods.

Respondents do not deny the existence of the waste at the site, they merely attempt to argue that the waste was "permanently" disposed of. As stated above, I disagree with the argument that the waste was "permanently" disposed of. I find that Respondents "stored" hazardous waste at the site.

Respondents do not dispute the allegations of DEC Staff that Safety-Kleen treated the waste by mixing water, sawdust and wood chips with the waste at the site. I find that the waste was treated at the site by the act of mixing it with water, sawdust and wood chips. By adding water to the PCB waste, the B007 waste was converted to B002 waste, petroleum oil or other liquid containing 50 ppm or greater of PCBs.

Disposal is defined in Part 370.2 as " ... the abandonment, discharge, deposit, injection, dumping, spilling, leaking, or placing any solid waste including hazardous waste, into or onto any lands or waters of the State so that such waste or hazardous waste or any related constituent thereof, may enter the environment, or be emitted to the air, or discharged to any waters, including ground waters, thereof...." Examining this definition with the facts of this case, I find that Respondents have disposed of hazardous waste at this site. DEC Staff has demonstrated that the waste was allowed to enter the environment by the Respondents in several ways, including removing the top of the 25,000 gallon container. The areas tested for PCBs included sites both inside and outside of the containment area, up gradient of the site and down gradient of the site. PCBs were present inside the ASTs, inside the containment area and outside the containment area. The results showed significantly higher levels of PCBs down gradient. Further, the observations of DEC Staff Gallego and Moore confirm that waste was visible both inside and outside the containment area. Respondents have offered no other explanation nor provided any expert opinion or authority that would allow one to conclude that the contamination at the site was from any source other than the ASTs. I therefore find that the waste from the ASTs entered the areas in and around the containment area.

Respondents fail to acknowledge their involvement with the waste at this site. Respondents significantly altered what they alleged to be a "permanent disposal" facility by cutting off the majority of the 25,0000 gallon tank and leaving the hazardous waste directly exposed to the environment. It bears noting that both of the 10,000 gallon ASTs had ends that were rusted open. Surely even a lay person could determine that there is no "permanent disposal" of any type of waste in such a container. Stains were visible on the concrete and soil in the area surrounding the ASTs leading to the reasonable conclusion that the contents of the ASTs spilled out into the surrounding area. The contamination was visible with the naked eye. Accordingly, I find that Respondents did dispose of waste as well.

Respondents meet the second element for RCRA to be applicable.

Element Three

The third point in determining if RCRA is applicable is whether Respondents have a permit for the treatment, storage, or disposal of hazardous waste. This point is conceded by Respondents.

Based upon a review of the facts of this case with the elements for RCRA, I determine that the provisions of RCRA, as implemented by the ECL, are applicable.

Liability for Property

Respondents have argued that the waste was placed at the site by Ashland Oil, the former owner, and as such, they have no liability for it. The case law cited by DEC Staff in its moving papers establishes that the Respondents are liable. DEC Staff cites several cases that clearly indicate that the Respondents are the responsible parties under RCRA, although they may not have initially placed the waste at the site. The first case cited by DEC Staff is In the Matter of Bil-Dry Corporation, U.S. EPA Administrative Decision, Docket No. RCRA-III-264. The Court in Bil-Dry found that although a former property owner was responsible for placing hazardous waste on the site, the current owner had the responsibility for the management of the hazardous waste at the site. The Respondent in Bil-Dry was found to be liable for the leaking that occurred from underground storage tanks ("USTs"). The Court noted the significance of the length of time that Respondent owned the property, 15 years, before a spill was reported. The Court indicated that such a long period of time provided Respondent with ample opportunity to locate the USTs and properly manage and handle them. The Respondent denied knowledge of the USTs until the spill was reported and the court disregarded that argument. Here, Respondents admit knowing of the ASTs and admit their actions in cutting down the 25,000 gallon AST. The length of time of ownership, the knowledge of the ASTs themselves, and the involvement of cutting down one tank provided Respondents with ample opportunity to learn of the nature of the waste on the site and "properly manage and handle them (ASTs)" (Bil-Dry, id)

The Court in In Re Rybond, Environmental Appeals Board, RCRA (3008) Appeal No. 95-3, 6 E.A.D. 614 examined the responsibility of an absentee owner whose tenant places ASTs and waste on the property without the owner's knowledge. The Court held, "By their terms, the laws apply to owners and operators." (Rybond at 630) The Court examined federal law as well as applicable Pennsylvania law and determined that an owner with no knowledge of the waste can be held liable under the provisions of RCRA. The Court examined the applicable definitions under Pennsylvania Law to see if Rybond met those terms. Once the Court determined that Rybond met the definitional terms, it examined whether Pennsylvania law provides relief from liability for an absentee landlord and found no such authority.(Rybond at 632) Respondents cite no such authority in this case and after examining applicable laws and regulations, no such exemption or protection from liability is found in New York Law.

Respondents argue that U. S. v. Price, 523 F. Supp 1055 (N.J. 1981) supports their defense that they are not liable as the current owner since the waste was placed by a former owner. I disagree with that reading of Price. In Price, the Court examined the defense raised by a current owner that since it did not own the land at the time of the landfill use, it could not be held responsible for violations resulting from that landfill that occurred during its ownership. The Court held, "The idea that ownership imposes responsibility for hazardous conditions on one's land is certainly not novel." (Price, id citing Vertac Chem. Corp., 489 F.Supp 877). The Court in Price noted the responsibility of a property owner to become aware of any hazardous conditions on its property. Subsequent owners can be held liable for hazardous waste that was on its property when it purchased the property. (Price at 1071) The Price Court did hold that this may not apply in cases where the subsequent owner could not reasonably be expected to have actual knowledge of the presence of hazardous waste at such facility or site and of its potential release. (Price at 1073) However, when an owner shows a "studied indifference to hazardous conditions that now exist" they are in fact disposing of waste. (Price at 1073)

Contrary to Respondents' arguments, one of the defendants in Price was a subsequent owner who was not in the waste business. Although there were several respondents named, the current owners were also named and those owners (real estate agents) were not in the landfill business. Respondents ask us to assume that the only reason that the Court broadly interpreted the statute to include those respondents was because the Court was seeking monetary contributions from as many sources as possible to remediate this site. I can not make such an assumption. The Court never stayed this nor even suggested this in its opinion. Also, Respondents suggest that the court held the current owners in Price liable because of the amount of waste on the site. Again, I can not make such an assumption.

Respondents also argue that since waste has not been brought to the site since it took title in 1980, it is not the responsible party. Again, this is not a viable defense. This issue was addressed by the United States Court Appeals, Fourth Circuit, in its decision in Environmental Defense Fund, Inc. v. James Lamphier, et al, 714 F. 2d., 331 (1983). In Lamphier, the Respondents argued against the applicability of RCRA by demonstrating that no waste had been brought to the site after the effective date of RCRA, November, 1980. (Lamphier at 335) The Court held that although waste had not been brought to the site, it was "immaterial where he(respondent owner) continued to store substances deposited at the farm prior to that date." (Lamphier at 335) (emphasis added)

Respondents have already acknowledged that they knew of the presence of the ASTs on the property when the property was purchased from B. Hoffman. Respondents stated that the former owner acknowledged that the ASTs remained from Ashland. More importantly, Respondents were responsible for cutting down a storage tank that contained petroleum and allowing it to be open to the environment. Once they took such an action, they became responsible to investigate what the actual conditions on the property were. (Price at 1073) They could no longer claim ignorance and lack of responsibility.

Respondents have cited Zands v. Nelson, 779 F.Supp. 1254 (S.D. Cal 1991) for the proposition that there must be more than ownership to incur liability. As stated herein, Respondents were more actively involved than just owning the property. Further, Zands involved a citizens suit claim and the RCRA provisions applicable in that case are not applicable here. For the same reasoning, I find no merit in the Respondents arguments based upon the ruling in First San Diego Properties v. Exxon Corporation, 859 F.Supp. 1313 (S.D. Cal.1994).

Waste Generation

I also find that the Respondents were generators of hazardous waste as defined in both the applicable State and Federal rules and regulations.

Respondents' actions in removing the top of the storage tank and allowing the waste inside to be exposed to the elements are acts that constitutes generating waste. 6 NYCRR 372.2 defines generator as "... as person, by site, whose acts or process produces hazardous waste as defined in section 371 of this Title, or whose first act causes hazardous waste to become subject to regulation." In this case, the Respondents meet the definition of generator. Respondents both "produce hazardous waste" (cutting down tank and allowing waste to enter the environment) and "first cause hazardous waste to become subject to regulation". Prior to the act by the Respondents of cutting down the 25,000 gallon tank, there was no active involvement with the waste on the part of Respondents.

However, if one were to accept the arguments of Respondents that they do not meet the criteria of "generator" as defined in 6 NYCRR 372.2, Respondents would still meet the definition of "generator" by virtue of their storage of the waste at the site in excess of 90 days. 45 Federal Regulation ("FR") 72024 defines "generator" to include one who allows the hazardous waste to remain in a unit for more than 90 days after the unit ceases to be operated for the purpose of storing or transporting product or raw materials or manufacturing. Respondents acknowledge that the waste was in the ASTs well in excess of 90 days and in fact for at least 17 years when DEC Staff first became aware of it. Respondents make no claim that they were continuing to "store" the waste or "transport" the waste. So, the definitional requirements of 45 FR 72024.01 have been met.

Based upon the definition of generator under the FR and the regulations of the State of New York, I find that the Respondents generated hazardous waste at this site.

PCB Source

Respondents challenge the DEC Staff's position that the PCB contamination can be traced to the Respondents' property, and more specifically the ASTs area. I do not find this argument persuasive. The DEC Staff motion is supported by the affidavit of Maurice Moore, DEC Love Canal Treatment Facility Operator. The Moore affidavit details results of soil sample testing conducted. Soil was collected from various locations in and around the containment area. Soil samples, collected both inside and outside of the property, indicate the presence of PCBs. The highest PCB levels detected in the soil samples were reported in samples collected adjacent to the cracks in the containment structure which were adjacent to the 25,0000 gallon AST. PCB contamination was also found at high levels in all three ASTs. Soil samples confirmed that PCB contamination "... is widespread within the containment area." (Moore affidavit at page 5) The highest levels were found immediately around the ASTs. Respondents' contractors also submitted test results to DEC Staff that confirmed the finding that the waste in the ASTs is the source of the PCB contamination at the site.

Respondents have submitted no proof to refute the findings contained in the Moore affidavit. Accordingly, based upon the affidavits submitted with regard to this motion, I find that the Respondents' argument is without merit.

DISCUSSION

I will examine the eighteen causes of action contained in the Complaint. Sixteen of the eighteen relate to violations of RCRA and the implementing New York State statutes and regulations and the remaining two address violations of the Navigation Law of the State of New York. I find that DEC Staff has met its burden of proof with respect to fourteen causes of action and I find that it is not necessary to address four of the causes of action.

As stated above, I have determined that RCRA is applicable. DEC Staff has the burden of proof with respect to the causes of action pled in the complaint and, with respect to the affirmative defenses, the Respondents carries the burden of proof. As detailed later herein, I find that none of the affirmative defenses have merit.

First Cause of Action

The first cause of action relates to a violation of 6 NYCRR 373.2(a)(2), which requires a person who generates hazardous waste to determine if the waste is hazardous. DEC Staff asserts that the Respondents failed to make any such determination. I find that Respondents have generated hazardous waste at this site, as stated earlier in this Ruling. Therefore, we must examine the issue of whether the Respondents made a determination that the waste was hazardous. Respondents have not shown, nor even alleged that they made the necessary determinations as to the waste at the site.

Therefore, I find that DEC Staff has proven the material allegations of the first cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the first cause of action.

Second Cause of Action

The second cause of action alleges a violation of 6 NYCRR 373.2(a)(8)(ii) which requires the date upon which the period of accumulation of waste begins to be clearly marked on the (storage container) and visible for inspection. The affidavits of DEC Staff demonstrate that the roll-off containers contained no such markings. Respondents have not disputed this allegation. I find that DEC Staff has proven the material allegations of the second cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the second cause of action.

Third Cause of Action

The third cause of action alleges a violation of 6 NYCRR 373-1.2(c) which prohibits the construction or operation of a new hazardous waste management facility without a permit. There is no dispute that Respondents had no permit. I have already determined that the Respondents were operating a hazardous waste management facility as defined in 6 NYCRR 370.2(89). I find that DEC Staff has proven the material allegations of the third cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the third cause of action.

Fourth Cause of Action

The DEC Staff alleges in its fourth cause of action that the Respondents violated 6 NYCRR 373-3.3(b) which requires that facilities be maintained and operated in a manner which minimizes the possibility of a fire, explosion, or any unplanned release of hazardous waste constituents to air, soil or surface water which could threaten human health or the environment.

Again, Respondents have not specifically addressed the allegations contained herein in their opposing papers. It has been shown by DEC Staff that the waste at this site was hazardous in that it tested for PCB's in excess of 50ppm. Also, this waste was found to be in the soil surrounding the ASTs as well as in other areas both on and off of the Respondents' property. This is sufficient to constitute a violation of 6 NYCRR 373-3.3(b). I find that DEC Staff has proven the material allegations of the fourth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the fourth cause of action.

Fifth Cause of Action

The DEC Staff alleges, as and for its fifth cause of action, that the Respondents violated 6 NYCRR 373-3.9(d)(3) which requires that containers holding hazardous waste be marked with the words "Hazardous Waste" and with other words identifying their contents. The Respondents do not deny this allegation. I find that DEC Staff has proven the material allegations of the fifth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the fifth cause of action.

Sixth Cause of Action

The DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(b) which requires the owner or operator of a hazardous waste management facility with an existing tank system that does not have adequate secondary containment to obtain and keep on file a written assessment reviewed and certified by an independent, qualified professional engineer registered in the State of New York that attests to the tank system's integrity. Respondents have not alleged that they had any secondary containment nor have they submitted proof of a written assessment reviewed and certified by an independent, qualified professional engineer registered in New York State that attests to the tank's integrity. I find that DEC Staff has proven the material allegations of the sixth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the sixth cause of action.

Seventh Cause of Action

The seventh cause of action alleges that Respondents violated 6 NYCRR 373-3.10(d)(2) which "requires that tanks storing hazardous wastes be provided with a secondary containment system designed, installed or operated to prevent any migration of wastes or accumulated liquids out of the system to the soil, groundwater or surface water at any time during the use of the tank system." The requirements for such a secondary containment system are detailed within section 373-3.10 (d). Those requirements apply to the tank system in place on the Respondents' property. More specifically, section 373-3.10(d)(1)(vi) requires the system for "tank systems that store or treat materials that become hazardous wastes after the effective date of these regulations within the time intervals required in subparagraphs (i)-(v) of this paragraph." These regulations became effective on January 1, 1995 and the time intervals referred to address tanks older than 15 years of age, as well as other time limits.

I find that DEC Staff has met its burden of proof with respect to the material allegations of the seventh cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the seventh cause of action.

Eighth Cause of Action

The DEC Staff alleges, as and for its eighth cause of action against the Respondents, that the Respondents violated 6 NYCRR 373-3.10(d)(3) which sets forth the minimum requirements for a secondary containment system. Respondents do not dispute that no such system existed. As stated above, a secondary containment system was required at this site. I have already found that no such system existed and found that the motion should be granted with respect to the "Seventh" cause of action. It is unnecessary to address this cause of action.

Ninth Cause of Action

The DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(d)(5)(ii)(b), (c), (d), and (f) which requires that "a vault system used for secondary containment of tanks storing hazardous wastes must be designed or operated to prevent run-on or infiltration or precipitation into the secondary containment system unless the collection system has sufficient capacity to contain run-on or infiltration and must be constructed with chemical resistant water stops at all joints, provided with an exterior moisture barrier or be otherwise designed or operated to prevent migration of moisture into the vault." As stated above, a secondary containment system was required at this site. I have already found that no such system existed and found that the motion should be granted with respect to the "Seventh" cause of action. It is unnecessary to address this cause of action.

Tenth Cause of Action

DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(d)(6) which requires that ancillary equipment in tank systems be provided with full secondary containment except for a few exceptions that are not applicable here. As stated above, a secondary containment system was required at this site. I have already found that no such system existed and found that the motion should be granted with respect to the "Seventh" cause of action. It is unnecessary to address this cause of action.

Eleventh Cause of Action

The DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(d)(9)(ii) which requires annual leak tests for ASTs or an internal inspection or other tank integrity examination by an independent engineer. Respondents have not claimed to have completed any such testing. I find that DEC Staff has proven the material allegations of the eleventh cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the eleventh cause of action.

Twelfth Cause of Action

The DEC Staff alleges that the Respondents violated 6 NYCRR 373-3.10(e)(2) which requires that an owner or operator of a hazardous waste management facility provide spill prevention and overfill prevention controls to prevent spills and overflows from tanks used to store or treat hazardous wastes, including maintenance of sufficient freeboard in uncovered tanks to prevent overtopping by wave or wind action or by precipitation. The Respondents have openly acknowledged that they cut down the 25,000 gallon tank to a height of approximately 2-3 feet and allowed it to remain open without any type of protection, clearly in violation of the above section. I find that DEC Staff has proven the material allegations of the twelfth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the twelfth cause of action.

Thirteenth Cause of Action

DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(e)(3) which requires that the owner or operator of a hazardous waste management facility comply with the requirements of 6 NYCRR 373-3.10(g) when a leak or spill has occurred in the tank system. Respondents have not alleged that they did comply with those requirements. I find that DEC Staff has proven the material allegations of the thirteenth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the thirteenth cause of action.

Fourteenth Cause of Action

DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(e)(4) which requires that the owner or operator of a hazardous waste management facility mark all tanks used for storage or treatment of hazardous wastes with the word "Hazardous Waste" and with such other words that identify the contents of the tanks. No such markings are alleged to have been made on the three ASTs or the roll-off containers. I find that DEC Staff has proven the material allegations of the fourteenth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the fourteenth cause of action.

Fifteenth Cause of Action

DEC Staff alleges that Respondents violated 6 NYCRR 373-3.10(g) which requires that a tank system, from which there has been a leak or spill, be removed from service immediately and the owner or operator must satisfy the spill response requirements set forth in 6 NYCRR 373-3.10(g). Respondents have made no claim that the ASTs were removed from service, they do not dispute the presence of leaks and/or spills, and they make no claim to have followed the spill response requirements referenced by DEC Staff. DEC Staff pled this violation in the "Thirteenth" cause of action. It is unnecessary to address this cause of action.

Sixteenth Cause of Action

DEC Staff alleges that Respondents violated 6 NYCRR 376.4(f)(1)(i) that provides that waste B002 from any source other than a spill, may not be stabilized or mixed with any substance to conform with provisions of 40 Code of Federal Rules ("CFR") 761. Respondents have acknowledged, through their contractor Safety-Kleen, that they mixed the waste on the site with water, wood chips and saw dust. I find that the section is applicable and that DEC Staff has proven the material allegations of the sixteenth cause of action and there has been no question of fact raised by the Respondents. The motion should be granted with respect to the sixteenth cause of action.

Seventeenth & Eighteenth Causes of Action

DEC Staff alleges that Respondents violated sections 173 & 175 of the Navigation Law of the State of New York. Section 173 prohibits the discharge of petroleum resulting in oil entering "into the waters of the state or onto lands from which it might flow or drain into said waters". Navigation Law section 172(8). DEC Staff alleges that Respondents discharged the petroleum contained in the ASTs thereby violating section 173. Section 175 requires a person who does discharge to immediately notify DEC Staff. While a strict interpretation of the Navigation Law would seem to preclude its application to this case, a review of case law reveals otherwise.

Respondents, in their Answer, "denies knowledge or information sufficient to form a belief regarding the truth or falsity of said allegations, and therefore denies same." Respondents have failed to offer any defense or argument against the applicability of these sections or provide an argument as to how they did not violate these sections.

The Navigation Law of New York State has been construed liberally by the courts and the administrative agencies of this State. One might assume from reading section 173 of the Navigation Law that the discharge would have to be into the waters or in the immediate area of the waters of the State thereby ensuring that it would travel to the waters of the State. However, that section has been interpreted much more broadly. Administrative decisions as well as the Supreme Court of this State determined that "...judicial notice can be taken of the common knowledge that oil can seep through the ground into the surface and groundwater water ...thereby causing ecological damage." (6) PCBs were detected at the site in the soil near the ASTs. There is no requirement that it be proven by DEC Staff that groundwater was contaminated.(7) So long as the discharge was into the soil, there is a violation of Navigation Law section 173 for the reasons enumerated in Merrill and Mt. Hope Asphalt.

It has been established sufficiently that the hazardous wastes at this site were found to have contaminated the soil and area outside of the ASTs. Therefore, there is a sufficient foundation to establish that Navigation Law sections 173 & 175 have been violated. Section 175 deals with the reporting requirements when a spill occurs. Respondents do not dispute the fact that they did not report any spill of the waste to the DEC Staff. The motion should be granted with respect to the seventeenth and eighteenth causes of action.

Affirmative Defenses

Respondents have alleged fifteen affirmative defenses in their Answer. The motion for order without hearing can not be granted unless it is established that the defenses asserted, as a matter of law, have no merit. The Respondents have the burden of proof with respect to said affirmative defenses. "The burden which the Defendant must bear regarding an affirmative defense is the real burden of proof, that is the ultimate burden of proof by a preponderance of the evidence."(8)

In addition to having the burden of proof, Respondents must also plead the defenses with particularity. CPLR 3013 states: Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. So, with regard to each affirmative defense, I have examined it for each of the above requirements. Is the defense pled with sufficient particularity and has each affirmative defense been proven by a preponderance of the evidence. I will address each affirmative defense separately.

The first affirmative defense is that the complaint fails to state a cause of action. The above stated requirement of CPLR 3013 applies to a complaint as well as an answer. The complaint, as served by DEC Staff, is sufficiently particular to give the court and Respondents notice of the violations alleged in all eighteen causes of action. Additionally, this affirmative defense does not identify any particular cause or causes of action that Respondents allege fail to state a cause of action. The Respondents' opposing papers do not provide any further support for this affirmative defense. I find that the Respondents have not met their burden of proof with respect to the first affirmative defense.

The second affirmative defense alleges that one or more of the causes of action asserted in the motion, are barred, in whole or in part, by applicable statutes of limitations in that the statutes do not allow for the assessment of penalties before May 11, 1993. Respondents' Answer does not identify which causes of action are time barred and the papers of Respondents also fail to address this defense with any more specificity or with legal or factual support. Therefore, I find that Respondents have not met their burden of proof with regards to the second affirmative defense.

The third affirmative defense is that "one or more of the causes of action is barred by the doctrine of laches because the Department fails to take the proper actions in a timely fashion in order to put itself in a superior litigation position." The common law rule is that laches can not be imputed to a sovereignty, and that the equitable doctrine of laches may not be interposed as a defense against a state when acting in a governmental capacity to enforce a public right or protect a public interest.(9) Even if that principle were not applicable here, laches requires a showing of delay with prejudice. Respondents have not demonstrated how they were prejudiced nor have they even identified delay with any sort of particularity. Therefore, I find that Respondents have not met their burden of proof with regards to the third affirmative defense.

The fourth affirmative defense alleges that the action is barred by the doctrines of estoppel and waiver. Respondents allege that since the Department initially treated this as an oil spill and were pursuing voluntary clean-up, they may now only seek remedial relief. Again the Respondents do not identify any specific cause or causes of action that they believe this defense applies to. Estoppel can occur through action or inaction. If estoppel through an action is claimed, there are three elements that must be met: (1) a duty to speak; (2) a failure to speak; (3) damage to another party directly due to this silence. Estoppel by silence or inaction "... must amount to bad faith and be of such a nature as to induce another to alter his or her position so that it becomes unconscionable to permit the person remaining silent to enforce his or her right. "(57 NY Jur 2d §17)

Again, Respondents provide no specific or detailed arguments to how this defense would apply to this case or what the specific action or inaction may have been committed by DEC Staff. In examining the facts as presented, it does appear that DEC Staff was forthright with Respondents from the beginning. In the findings of fact herein, I found that DEC Staff had made numerous site visits after receiving the initial spill call. DEC Staff put Respondents on notice in 1997 of their duties and obligations with regard to this site and what the ramifications were should they fail to meet those obligations. I find no failure of DEC Staff to speak nor damage to Respondents as a result of any silence.

There is no question that DEC Staff attempted to resolve this matter with the Respondents by way of a voluntary clean-up. Respondents were slow to act on clean-up and did not follow the proper course once they began to take action. Respondents were provided with every opportunity to complete this matter without the necessity of an action. If there was any delay, it was attributable to the actions of the Respondents, not DEC Staff. Therefore, I find that Respondents have not met their burden of proof with regards to the fourth affirmative defense with respect to estoppel. Waiver is also not a valid affirmative defense. As noted by DEC Staff in its Reply, public officers may not waive law enforcement and any such act to do so would not be binding upon the public. (57 NY Jur 2d §77)

The fifth affirmative defense pled by Respondents is "one or more of the causes of action are barred by the doctrine of unclean hands in that once the Department discovered the presence of hazardous waste they decided to change their agenda and treat this as a RCRA penalty situation". As stated above, equitable doctrines do not apply to a sovereignty.(10)

Even if one were to accept the defense as being applicable, I find that Respondents have not met their burden of proof with regards to this defense as they have not provided any support for it and the facts do not support the proposition. I find that DEC Staff did not change the tenor of their actions with respect to Respondents' site when they learned of the presence of PCBs. The facts show that DEC Staff continued to work with the Respondents and their contractor to ensure a proper clean-up after the PCBs were detected. Therefore, I find that Respondents have not met their burden of proof with regards to the fifth affirmative defense.

The sixth, seventh and eighth affirmative defenses essentially allege that the actions of Safety-Kleen should not be attributable to the Respondents, that liability found against Respondents should be passed through to Safety-Kleen and that as Safety-Kleen has paid a civil penalty, there is no need for further penalties.

Respondents again fail to provide either through case law, statutes or regulations, legally sufficient support for these defenses. These affirmative defenses asserted are vague and appear to be meritless. Respondents provide no explanation as to why Safety-Kleen's involvement would relieve them of liability. No specific violations or actions are attributed to Safety-Kleen by Respondents. I find that Respondents have failed to meet their burden of proof with respect to these three causes of action.

The ninth affirmative defense states that Respondents should not be held responsible for RCRA violations for events that took place prior to the enactment of RCRA. DEC Staff is not seeking any such penalties and this affirmative defense is without merit. DEC Staff is addressing those actions and events that occurred during Respondents' ownership of the property, after the enactment of RCRA.

The tenth affirmative defense alleges that, as DEC Staff is seeking declaratory relief, the matter is "not ripe for adjudication in that proper procedures should now be followed". Respondents provide no specificity with regards to this argument and provide no legal support for this defense. Therefore, I find that Respondents have not met their burden of proof with regards to the tenth affirmative defense.

The eleventh and twelfth affirmative defenses argue that "one or more parties are strictly, jointly and severally liable for civil penalties..." and that DEC has no right to recover from MarCon. Also, that the damages were caused by unauthorized illegal treatment and/or improper disposal for which Respondents are not responsible. These defenses are not pled with the sufficient particularity called for in the CPLR. In any event, I will address the merits of the alleged defenses. Respondents attempt to relieve themselves of liability by virtue of the fact that although Respondent Giambrone owns the property and Respondent MarCon leases the property, they did not place the waste at the site and they did not conduct the actual clean-up. These are not valid arguments. As stated above, one need not be the party who placed the waste at the site to be held responsible. The owner is also responsible for the actions of any contractor who took action at the site.

DEC Staff correctly cites the U.S. District Court decision in U.S. v. Valentine, 38 ERC 2086 which held that "joint and several liability is the rule in RCRA cases." Respondents contend that since Valentine involved alleged RCRA violations related to the endangerment provisions, strict liability may only be applied in those cases. I disagree with that interpretation of the Court's ruling. I also disagree with the Respondents' interpretation of the decision in United States v. Allegan Metal Finishing Co., 696 F.Supp 275 (D.Mich.1988). Respondents claim that the court in Allegan applied the strict liability principles only because the defendant was in the business of intentionally disposing of hazardous waste. While the Court acknowledges the significance of "hazardous discharges that are merely accidental"(13) it clearly stated that it would not read into the statute a state of mind requirement. The Allegan court cited Fishel v. Westinghouse Electric Corp, 617 F.Supp 1531 (M.D. Pa. 1985) when addressing the "accidental discharge" issue. Fishel involved a CERCLA claim and the Court held the defendant liable for discharges that occurred as a result of run off from a lagoon even though the defendant did not intend the discharges. (Fishel at 1534) Based upon the nature of the claims addressed in Allegan and Fishel and the rulings of the courts in those cited cases, I find that they do not support the arguments put forth by the Respondents.

U.S. v. Production Plated Plastics, Inc. 742 F.Supp 956 (W.D.Mich.,1990) held, "RCRA is a remedial strict liability statute which is construed liberally.( Production Plated citing United States v. Aceto Agricultural Chemical Corps, 872 F. 2d. 1317, 1383 (8th Circuit), 1989)". Respondents cite U.S. v. Price, id for the proposition that strict liability only applies to the endangerment provisions of RCRA. Price does not state this proposition and Respondents do not present any further authority for that principle.

I disagree with Respondents' interpretation of the rulings in Price and Valentine as more fully stated above. I find that Respondents have not met their burden of proof with regards to these affirmative defenses.

The thirteenth affirmative defense alleges that the site is an Inactive Waste Disposal Site as defined in ECL section 27-1301(2): "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 and any inactive area or structure on the National Priorities List established under the authority of 42 U.S.C.A. Section 9605. DEC Staff agrees that it is inactive. However, Respondents offers no further explanation, argument or authority as to how that affects their liability here. I find it irrelevant that the site is an Inactive Waste Disposal Site. I find that Respondents have not met their burden of proof with regards to the thirteenth affirmative defense.

The fourteenth and fifteenth affirmative defenses seem to apply to the Navigation Law causes of action. It is clear from reading case law and decisions from agencies in New York that the Navigation law sections pled here are liberally applied. The Respondents have not presented evidence that there was no spill of petroleum and have not refuted the position of DEC Staff that petroleum was spilled onto the ground area surrounding the ASTs and further into the property of the Respondent Giambrone. The only defense of Respondents is that if any spill did occur, "... other parties are responsible under ECL Article 27, Title 13 and the New York Navigation Law...". This defense is not even superficially argued and presented and I find that no credible evidence has been presented to support such a defense.

The final affirmative defense challenges the applicability of 6 NYCRR sections 12 and 613 "as these define petroleum". Again, this defense not been presented in any detail or with any factual and/or legal support offered. I find that no credible evidence has been presented to support such a defense.

Liability

The Commissioner's Civil Penalty Policy provides that the starting point for any penalty calculation should be a computation of the potential statutory maximum for all provable violations. DEC Staff calculates that without including the per diem daily penalty that can be assessed for the continuing violations, the RCRA violations would total $775,000. The maximum penalty for the two Navigation Law violations is $25,000 each, without considering a penalty of $25,000 for each day the violation continues. The maximum penalty for the 18 causes of action is $825,000, again, without including the per diem daily penalties that could be assessed.

The Civil Penalty Policy recommends that Administrative Law Judges and prosecuting representatives of the DEC consider this guidance in "recommending penalty terms for all Orders executed by or for the Commissioner of the Environmental Conservation.".(14) It is apparent that DEC Staff is not seeking the maximum penalty that could be assessed since it has not included the per diem penalty authorized by the statute.

In determining the appropriate penalty one must take into account the underlying enforcement philosophy and the pertinent elements contained in the Civil Penalty Policy. The enforcement philosophy is and has been, "to punish the violator and deter future violations." The punishment must be appropriate based upon the facts of each case. "...if a violator is recalcitrant, is totally or relatively unresponsive to DEC enforcement action, negotiates in bad faith or seeks to delay resolution of the violation, a penalty at a higher end of the range is warranted."(15) Staff's motion papers indicate that the Respondents' actions do not warrant a penalty at the higher end of the range of penalties available.

Overall, the Respondents, while failing to take the proper actions to remediate the site in a timely, efficient, and proper manner, have shown a willingness to cooperate with Staff. For example, the Gallego affidavit contains numerous references to Respondents attempts to work with Staff to clean up the site. Although the record is clear that Respondents had difficulty achieving the desired results, such results were more attributable to incompetence and inexperience than willful neglect. It is noted that in some instances Respondents attempts to clean up the site, while seemingly proper, often times proved to be more harmful than if Respondents had done nothing.(16)

It is against this backdrop that the RCRA penalty matrix and the Oil Spill penalty matrices were used to calculate the penalty. These matrices are more thoroughly detailed in DEC Staff's motion and will be briefly mentioned here for completeness. Staff evaluated each of the violations of the regulations against the potential for harm (minor, moderate, major) and the extent of deviation from the regulations. The penalty assessment by Staff was also formulated, in part, on the "Gravity Component" addressed in the Civil Penalty Policy. Staff examined the impact to the environment and human life with regards to each violation alleged. They then applied those elements to the range of penalties available for each of the violations, resulting in a recommended penalty judgment.

In those instances where DEC Staff found the potential for harm and/or the extent of deviation to be "major", the requested penalty was the maximum allowed under the matrix. A finding of minor or moderate resulted in a penalty less than the high end of the penalty range but never was the lowest end of the penalty range recommended.

Based upon the facts presented and the arguments thereon, and the penalty analysis provided by Staff, I conclude Staff's penalty calculation is reasonable.

RECOMMENDATION

I recommend that Staff's motion for order without hearing be granted. I further recommend that the civil penalty proposed by the Staff be assessed against Respondents in the amount of $135,000 and that said penalty be paid by Respondents within 60 days of service of the Commissioner's Order.

I further recommend that Respondents:

  1. remove and properly dispose of all hazardous waste which has been stored on-site within 60 days of the Commissioner's Order and submit disposal receipts within 10 days of receipt of same.
  2. discontinue the practice of placing on the ground hazardous waste removed from any ASTs prior to placement in a suitable container for off-site disposal;
  3. discontinue the practice of mixing hazardous waste B002 from a source other than a spill, with any substance to conform with land disposal restrictions;
  4. comply with the requirement of 6 NYCRR 373.3-10(g) including remove and dispose of the tank system and submit disposal receipts to DEC Staff within 10 days of receipt of same.

/s/
Molly T. McBride
Administrative Law Judge

1. United States v. WCI Steel, Inc. 72 F.Supp 810 (N.D. Ohio 1999) citing United States v. T & S Brass and Bronze Works, Inc. 681 F.Supp 314 (D.S.C. 1988); United States v. Conservation Chemical Co., 733 F.Supp 1215 (N.D. Ind.1989)

2. 6 NYCRR 370.2(135)

3. 6 NYCRR 370.2(134)

4. Environmental Protection Agency Hazardous Waste Number

5. Environmental Protection Agency Hazardous Waste Number

6. Merrill Transport Co., v. State of New York 464 N.Y.S. 2d 249 (3rd Dept. 1983)

7. (Merrill at 42, See also, Matter of Mt. Hope Asphalt Corp, Decision & Order of Commissioner dated September 7, 1995.

8. Fisher v. Stewart Motor Corporation, 226 NYS 2d 549

9. Cortlandt Nursing Home v. Axelrod, 66 NY 2d 169

10. (11)

11. (12)

12.

13. (Allegan at 287)

14. Civil Penalty Policy dated June 20, 1990, page 1

15. Civil Penalty Policy dated June 20, 1990, page 2.

16. Respondents hired Safety-Kleen to conduct the site remediation.

Safety-Kleen committed additional violations, placing Respondents in a worse position by its' actions. Additionally, DEC Staff acknowledges receiving communications between Respondents and other contractors demonstrating Respondents attempts to complete site remediation.

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