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Matt, Jr., John L. - Ruling, July 25, 2003

Ruling, July 25, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Environmental Conservation Law Article 17 and Parts 612 and 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York by

RULING ON MOTION FOR ORDER WITHOUT HEARING

DEC Case No. R6-19991228-108

JOHN L. MATT, JR.,
Respondent

July 25, 2003

PROCEEDINGS

The Staff of the Department of Environmental Conservation ("DEC Staff") moved for an order without hearing against John L. Matt, Jr. (the "Respondent"), Post Office Box 536, Utica, New York, 13502, concerning alleged violations at a petroleum bulk storage facility located at 166 North Genesee Street, Utica, New York. The motion was served upon Mr. Matt by certified mail, return receipt requested, with a letter dated May 2, 2003.

The motion states that the Respondent failed to renew the registration of his petroleum bulk storage facility and failed to tightness test or permanently close the unprotected underground storage tanks located at the facility, thereby violating sections 612.2(a)(2) and 613.5(a)(1) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). The motion states that the uncontrovertable facts shown in affidavits and exhibits attached to the motion demonstrate that the alleged violations occurred. The motion seeks an order from the Commissioner finding these violations, assessing a civil penalty, and ordering such other and further relief as may be justified. The notice of motion states that penalties up to $25,000.00 per day per violation may be imposed against the Respondent pursuant to Environmental Conservation Law ("ECL") 71-1929 if the alleged violations are found.

The motion, dated May 2, 2003, was made pursuant to 6 NYCRR 622.12(a), which provides that, "In lieu of or in addition to a notice of hearing and complaint, the department staff may serve, in the same manner, a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence." The motion was accompanied by an affidavit of Donald I. Johnson, an Environmental Engineer I in the DEC's Region 6 Office, and an affidavit of Randall C. Young, Esq., Assistant Regional Attorney for DEC Region 6. Mr. Young represents the DEC Staff in this matter.

John A. Longeretta, Esq., of the Longeretta Law Firm, Utica, submitted a response on behalf of the Respondent on June 10, 2003. The response consisted of a transmittal letter and an affidavit by the Respondent. The affidavit refers to an "Exhibit A" but no such exhibit was attached with the copy of the affidavit that was received by the DEC Office of Hearings and Mediation Services. Counsel for the Respondent provided a copy of Exhibit A on July 22, 2003.

POSITIONS OF THE PARTIES

The DEC Staff

The DEC Staff alleged that the Respondent violated 6 NYCRR 612.2(a)(2) by allowing the registration of his facility to expire twice, and that the DEC has not received any information showing that the Respondent has permanently closed the tanks at the facility. The DEC Staff also alleged that the Respondent violated 6 NYCRR 613.5(a)(1) by failing to cause the tanks to be tightness tested within five years of their last previous test. The DEC Staff alleged that no material facts are in dispute and that the Respondent has had several opportunities to demonstrate compliance but has not done so.

In its motion for order without hearing, the DEC Staff requested that the Commissioner impose civil penalties in the amounts of at least $1,500.00 for failure to renew the registration in a timely manner, at least $6,000.00 for failure to cause tightness testing of the tanks within five years of the last test performed on the tanks, and an additional penalty of $4,000.00 which would be suspended provided the Respondent complies with the requirements of the order (a total of $11,500.00, $4,000.00 of which would be suspended). In its brief, however, the DEC Staff requested that the Commissioner impose a total civil penalty of $16,000.00, with at least $8,000.00 to be paid and the remainder suspended pending Respondent's compliance.

The Respondent

The Respondent argued that he has not had petroleum on site for some 16 years, that the facility is not being used for the sale or distribution of petroleum, and that "the operation of such facility was closed in 1987." He stated that the tanks or facility were tested twice; the wording of his affidavit suggests that one of these tests occurred in 1987. The Respondent stated that one of the tanks is buried on property that is owned by Matt & Matt Holding Corp., not by the Respondent. The Respondent admitted that he had identified himself as owner of the facility and had taken certain actions with regard to the tank registration program as specified in Mr. Johnson's affidavit.

In addition to his statements regarding the alleged violations, the Respondent's affidavit contained statements about his attempt to sell the facility, an environmental study related to the planned sale in which a spill was allegedly created by other persons, demolition of a building on the site by the City of Utica, and a violation allegedly created by the City of Utica's demolition team. The Respondent requested that the motion for order without hearing "be denied due to third party involvement, and dismissed in its totality."

Regulatory Standards Allegedly Violated

6 NYCRR Section 612.2(a)(1) and (2) require that, for existing facilities, "Within one year of the effective date of these regulations, the owner of any petroleum storage facility having a capacity of over 1,100 gallons must register the facility with the department. This shall include any out-of-service facility which has not been permanently closed... Registration must be renewed every five years from the date of the last valid registration until the department receives written notice that the facility has been permanently closed or that ownership of the facility has been transferred."

6 NYCRR Section 613.5(a)(1) provides, in relevant part, that, "The owner of any underground petroleum storage tank and connecting piping system must have the tank and pipes periodically tested for tightness as shown in Table 1 of this subdivision...Any tank and piping system which is due for an initial test within the first year of the effective date of these regulations or any tank which is of unknown age must be tested within two years of the effective date of these regulations....Retesting of all tank and piping systems must be completed no later than every five years from the date of the previous test."

Two additional provisions of the petroleum bulk storage regulations that are relevant here are the definition of "storage facility" and of "owner" (6 NYCRR 612.1(c)(10) and (18)). A facility or storage facility means "one or more stationary tanks, including any associated intra-facility pipelines, fixtures or other equipment, which have a combined storage capacity of over 1,100 gallons of petroleum at the same site. A facility may include aboveground tanks, underground tanks or a combination of both. Pipelines which enter or leave the site and nonstationary tanks are not a part of the facility." An owner means "any person who has legal or equitable title to a facility."

Motions for Orders Without Hearing

6 NYCRR Section 622.12 governs motions for order without hearing in DEC enforcement hearings. Among other provisions, this regulation states that, "A contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgement under the CPLR [Civil Practice Law and Rules] in favor of any party. Likewise, where the motion includes several causes of action, the motion may be granted in part if it is found that some but not all such causes of action or any defense thereto is sufficiently established. Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the [C]ommissioner pursuant to section 622.18 of this Part." (6 NYCRR 622.12(d)).

This section further provides that, "The motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing..." (6 NYCRR 622.12(e)).

A recent Decision and Order of the Commissioner discussed the showing the parties must make in a motion for order without hearing and in the replies to such a motion, and the evaluation of these filings (see Richard Locaparra, d/b/a L&L Scrap Metals, DEC Case No. 3-20000407-39, Final Decision and Order of the Commissioner [June 16, 2003]). This discussion was summarized in a subsequent ruling by Administrative Law Judge Daniel P. O'Connell (see QP Service Station Corporation et al., DEC Case No. R2-20021001-319, Ruling on Motion for Order Without Hearing [July 8, 2003]), as follows:

The party moving for summary judgment has the burden of establishing "his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b])" (Friends of Animals v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). The moving party carries this burden by submitting evidence sufficient to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). The affidavit may not consist of mere conclusory statements but must include specific evidence establishing a prima facie case with respect to each element of the cause of action that is the subject of the motion. Similarly, a party responding to a motion for summary judgment may not merely rely on conclusory statements and denials but must lay bare its proof (see Hanson v. Ontario Milk Producers Coop., Inc., 58 Misc 2d 138, 141-142 [Sup Ct. Oswego County 1968]). The failure of a responding party to deny a fact alleged in the moving papers constitutes an admission of the fact (see Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 [1975]).

Ruling

As discussed further below, there are no substantive issues of fact in dispute sufficient to require a hearing on the alleged violation of 6 NYCRR 613.5 (tank tightness testing). With regard to this violation, the DEC Staff has submitted proof of the alleged violation by its affidavits and the exhibits accompanying them. The Respondent's affidavit admits or does not deny the material facts in the DEC Staff's proof. The facts asserted by the Respondent in his affirmative defenses are not relevant to elements of the alleged violation of 6 NYCRR 613.5, nor of the other alleged violation. The motion for order without hearing should be granted on the issue of liability for this violation.

The motion for order without hearing is denied with respect to the alleged violation of 6 NYCRR 612.2 (registration). Although the DEC Staff demonstrated certain facts relevant to this alleged violation, and the Respondent did not show the existence of a substantive dispute about these facts, the DEC Staff did not submit specific evidence establishing that the Respondent allowed his registration to expire and failed to renew it as required. At the same time, the Respondent did not submit evidence that he had renewed his registration. In situations such as this, neither party has established its entitlement to judgement as a matter of law on this violation and a hearing will take place on the allegation (see Locaparra, at 7 - 9).

The DEC Staff's affidavits and brief contain proof and argument in support of the requested civil penalty and the Respondent's papers have not raised any triable issue of fact relevant to the amount of the civil penalty that would be imposed if the alleged violations are proved nor made arguments on this question. The DEC Staff's papers, however, identify two different proposed penalties, as described above (at page 2). The DEC Staff also did not associate the proposed suspended penalty, or parts of it, with one or both of the alleged violations, and it is possible that the Respondent may be found liable for only one of the alleged violations. There will need to be an opportunity for argument by the parties about the proposed penalty.

A hearing report will be forwarded to the Commissioner pursuant to 6 NYCRR 622.18 after the record is developed on the one issue identified above about the alleged violation of 6 NYCRR Part 612.2 and after an opportunity for written or oral argument concerning the penalty.

Ruling: The motion for order without hearing is granted with regard to the Respondent's liability for the violation of 6 NYCRR 613.5. The motion is denied with regard to the alleged violation of 6 NYCRR 612.2. The Respondent's request to dismiss the claim is also denied. A hearing will be convened on the alleged violation of 6 NYCRR 612.2. The parties will have the opportunity to submit arguments about the proposed penalty. The facts contained in the Findings of Fact below are established for all purposes in the hearing.

FINDINGS OF FACT

  1. The Respondent, John L. Matt, Jr., is the owner of a petroleum bulk storage facility (the "Facility") located at 166 North Genesee Street, Utica, New York. The facility is a former retail gasoline station/carwash. The Respondent's October 29, 1992 petroleum bulk storage application describes the facility as "not in use (in process of selling)."
  2. The tanks at the Site are unprotected underground tanks with a capacity exceeding 1,000 gallons. There are three tanks, which are described on the April 11, 1994 petroleum bulk storage registration certificate as being steel/carbon steel tanks with capacities of 5,000, 10,000 and 10,000 gallons.
  3. The DEC issued a petroleum bulk storage registration certificate for the Facility, which certificate expired on November 13, 1997. On or about August 14, 2000, the DEC Staff served on the Respondent a Notice of Hearing and Complaint alleging violations of 6 NYCRR 612.2(a)(2) and 613.5(a)(1). The Respondent submitted an answer, in which, among other assertions, he admitted DEC Staff's allegation that he is the owner of the facility. Any outcome of this earlier administrative enforcement action is not in the record.
  4. In early October, 2001, the DEC Staff received an application from the Respondent for renewal of the facility's registration. The application was signed by the Respondent, who identified himself as the owner, and listed the three tanks in the "tank information" section of the application.
  5. The DEC has not received any notice of transfer of ownership of the facility since receipt of the October 2001 registration application. The Respondent attempted to sell the facility but the sale did not take place. The DEC has not received any information showing that the Respondent permanently closed the tanks at the facility.
  6. The tanks at the Facility were tightness tested in April 1992 and on one other date which is not clearly identified but may have been in 1987. The DEC has not received reports indicating that the tanks at the Facility were tested after April 1992. A petroleum bulk storage registration certificate issued to the Respondent in November 1992 listed April 1997 as the "testing due date," but the Respondent has not submitted tightness testing reports showing that the tanks were tested after April 1992.
  7. Tightness testing of petroleum bulk storage tanks usually costs at least $500.00 per tank. The registration fee for this facility, as specified in 6 NYCRR 612.3(a), is $250.00.

DISCUSSION

Hearing on alleged violation of 6 NYCRR 612.2

Although the DEC Staff proved that the Respondent is the owner of the facility and that he is required to have a current petroleum bulk storage registration for the facility, the DEC Staff did not show that his most recent registration expired and that he failed to renew it. In his affidavit, Mr. Johnson states that the DEC received a renewal application from the Respondent on or about October 10, 2001, and cites Exhibit C of his affidavit, presumably as being the renewal application. The pages following the "Exhibit C" label in the affidavit are two pages consisting of section A and section B of a petroleum bulk storage application, plus one page entitled "petroleum bulk storage registration certificate." Mr. Johnson's affidavit does not mention nor authenticate this last page. Although this last page appears to be the Respondent's certificate issued in response to his October 2001 application, this was not proved by any sworn statement of a witness. The affidavit also does not state whether there was any subsequent renewal application nor certificate, and does not address the registration status of the Respondent's facility as of the date of the motion for order without hearing.

The Respondent also did not prove that he did renew his registration, nor that he had a current registration as of the date of the motion. Thus, there is no basis in the existing record to grant a motion for order without hearing in favor of either party. This is quite similar to the situation described in the recent Locaparra Decision and Order. A hearing will be convened regarding the alleged violation of 6 NYCRR 612.2.

Respondent's affirmative defenses

The Respondent's affidavit states that he has not sold petroleum products at the site and that no petroleum products were stored or distributed from the facility for the past 16 years. The DEC Staff, however, did not allege that he was selling petroleum and this fact is not relevant to the allegations in the motion. Petroleum bulk storage facility registrations must be renewed as specified until the Department receives written notice that the facility has been permanently closed or that ownership of the facility has been transferred (6 NYCRR 612.2(a)(2)). The facilities to which this applies include any out-of-service facilities which have not been permanently closed (6 NYCRR 612.2(a)(1)). Permanent closure, in the context of Parts 612 and 613, involves more than the facility no longer being used for sale or distribution of petroleum products. The required procedures for permanent closure are stated in 6 NYCRR 613.9(b), and include measures such as removing liquid and sludge from the tank, making the tank free of petroleum vapors, and filling underground tanks with a solid inert material. Tanks or facilities that have not been closed pursuant to these requirements remain subject to Parts 612 and 613, including the tightness testing and registration requirements (6 NYCRR 613.9(b)(2)).

The Respondent's affidavit stated that the property deed attached with Mr. Young's affidavit does not show "the other property, adjacent to that of the owner, which is where the 5,000-gallon tank is buried." The Respondent's affidavit stated that the other property is in the name of Matt & Matt Holding Corp.

Even if the Respondent does not currently own the land on which the 5,000 gallon tank is buried, this would not be an affirmative defense to the alleged violations, for several reasons. Parts 612 and 613 require that the owner of a facility comply with the registration and tightness testing requirements. A "facility" or "storage facility" is defined in 6 NYCRR 612.1(c)(10) in terms of the tanks and related equipment such as pipelines. The Respondent identified himself as the owner of the facility when he filled out the October 4, 2001 application, which lists three tanks with capacities of 5,000 gallons, 10,000 gallons and 10,000 gallons. The Respondent admitted being the owner of the facility, in his Answer in the August 2000 enforcement matter. In response to the present motion for order without hearing, he admitted that he identified himself as the owner on the October 29, 1992 application.

The DEC proved, and the Respondent did not contest, that DEC has not received any notice or transfer or ownership of the facility since receipt of the October 2001 application. The Respondent's affidavit states that he was trying to sell the facility but that the sale did not take place due to breach of a contract by the prospective buyer and some kind of conspiracy. The circumstances surrounding the attempted sale of the property do not relieve the Respondent from the requirements of Parts 612 and 613, as long as he remains the owner.

Even if the 5,000 gallon tank were on land that, for example, the Respondent rents from another entity, the DEC has proved that he is the owner of the facility. Further, if the Respondent were not the owner of the 5,000 gallon tank, he would still be responsible for registration and tightness testing of the other two tanks.

The Respondent's affidavit also stated that an environmental assessment conducted at the site by Watkins Engineering had caused a spill, and that the City of Utica had demolished the building at 166 North Genesee Street and had illegally broken two fill pipes in the process. The motion for order without hearing does not, however, allege any violations relating to a spill or to the breaking of fill pipes. These events are not relevant to the allegations in the present proceeding.

Further proceedings

A hearing will take place on the issues of when the Respondent's most recent petroleum bulk storage registration expired and whether it was renewed. I will set the date and place for the hearing after contacting counsel for the parties about their schedules. The DEC Utica Sub-Office may be the most convenient location for the hearing.

/s/
Susan J. DuBois
Administrative Law Judge
Albany, New York
July 25, 2003

To: Randall C. Young, Esq.
John A. Longeretta, Esq.

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