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Northeast Environmental Services, Inc. and Millennium Environmental, Inc. - Ruling, January 11, 2002

Ruling, January 11, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Causing, Engaging in or Maintaining a Condition or Activity which presents an Imminent Danger to the Health or Welfare of the People of the New York State or Which is Likely to Result in Irreversible or Irreparable Damage to the Natural Resources of the State, pursuant to Section 71-0301 of the Environmental Conservation Law

- by -

NORTHEAST ENVIRONMENTAL SERVICES, INC AND
MILLENNIUM ENVIRONMENTAL, INC.,
Respondents

Ruling on Motion

DEC Case # R7-2001-38334

Proceedings

This Ruling addresses the penalty phase of the Summary Abatement Order ("Order") that was issued by NYS Department of Environmental Conservation ("Department'") Commissioner Erin P. Crotty on August 16, 2001. The Order was issued pursuant to Environmental Conservation Law ("ECL") section 71-0301. Pursuant to the requirements of ECL 71-0301, the Respondents were given the opportunity to be heard and to present proof that the condition and activities alleged in the Order did not violate the provisions of Title 3 of Article 71 of the ECL. The Respondent Millennium Environmental, Inc. ("MEI") appeared for the hearing scheduled for August 27, 2001 with counsel David Wander, Esq. and by Joseph Wisneski, President. Department Staff appeared by G. Steven Hamilton, Esq., Office of General Counsel, Division of Environmental Enforcement. No appearance was made by Northeast Environmental Services, Inc. ("NES"). It is acknowledged by the Department and MEI that MEI was the owner of the hazardous waste storage and treatment facility in question at the time of the Order. MEI declared it was the owner of NES.

The Respondent MEI executed a written Waiver of Hearing waiving its statutory right to a hearing on August 27, 2001 and, accordingly, the hearing was cancelled.

The Waiver of Hearing was executed as part of a Stipulation wherein MEI stipulated to several points, including the following:

  1. the Commissioner had the authority to issue the Order;
  2. service of the Order was legal and proper under the New York Civil Practice Law and Rules; and
  3. Respondent continues to be in violation of paragraphs IV.A.1-5 and IV.C of the Order.

Pursuant to ECL 71-0301 any violation of the provisions of the Order shall be liable for a civil penalty of not more than $2500.00 for each violation and an additional penalty of not more than $500.00 for each day that the violation continues. By Department's Final Brief dated September 20, 2001 the Department requested that the maximum penalty allowed under the statute be imposed against the Respondents. Respondent MEI has not submitted any response to the Brief. By letter dated September 27, 2001 I directed MEI to submit a response to the penalty request by October 9, 2001. No response has been submitted and no request has been made for an extension of this time.

The Respondent MEI has acknowledged by the executed Stipulation that it was, as of August 27, 2001 in violation of the Order. Therefore, penalties shall be imposed, as per the statute. The only remaining issue is what amount of penalty should be imposed.

Staff has requested that penalties be imposed in the amount of $119,000.00 as of September 20, 2001 (date of the motion) and an additional $500.00 per day for each violation until the violations cease. (Staff's request is the maximum amount of penalty per violation, $2500.00, plus $500.00 per day per violation.) The Summary Abatement Order put the Respondents on notice that they would be subject to the provisions of Article 71 of the ECL if they did not timely initiate and diligently pursue compliance with the Order. Article 71 includes a provision for penalties of $2500.00 per violation and an additional penalty of $500 per day for each day a violation continues. Further, the Department's Final Brief requested the maximum penalty allowed under Article 71 and noted that the Department was seeking the per day penalty for each day that the violations continued. Respondents were adequately advised of the possible penalties that could be incurred for noncompliance with the Order. Still, Respondents allowed the violations to continue and failed to serve any responding papers regrading the request for penalties. I find that the per day penalties are warranted until the date the violations ceased or the date of the final ruling.

Respondent MEI has acknowledged that it violated the following six decretal paragraphs of the Order:

  1. Within 72 hours of issuance of the Order: remove all oxidizers, peroxides, reactives, corrosives, and/or lab pack wastes.
  2. No later than 5 days after issuance of this Order: remove all ignitable waste in drums and, no later than 7 days remove all ignitable waste in tanks.
  3. Within 24 hours of the issuance of this Order: remove all bulging and leaking drums and all wastes from leaking tanks and secondary containment systems.
  4. Within 24 hours of the issuance of this Order: perform all necessary work to bring the groundwater pump and treat system back into full operation and maintain and operate that system.
  5. Within 3 days of the issuance of this Order: install security measures necessary to prevent unknowing entry and minimize the possibility of unauthorized entry, vandalism, and other disturbance of the waste and equipment at the Facility.
  6. Respondents, within 48 hours of the issuance of this Order, shall submit to the Department a description of actions to be performed consistent with its Permit obligations to ensure that the Facility has sufficient and properly trained staff on the premises at all times to perform required maintenance activities that would prevent a recurrence of toxic or hazardous fores and minimize the likelihood of releases to the environment of hazardous waste and/or constituents.

The maximum penalty under the statute that can be imposed is $2500.00 for each of the six violations ($15,000) plus $500.00 per day for each day that each violation continues. As of the date of this Ruling, the violations have occurred for 147 days (6 violations at $500.00 per day times 147 days = $441,000). Therefore, the maximum penalty that could imposed as of January 10, 2002, the date of this Ruling, would be $456,000.00, if all penalties were continuing. However, at least 2 violations have ceased. The date that the violations ceased is unknown at this time. This will be addressed below more fully.

Penalty Calculation

Certain facts presented below must be considered in determining the appropriate penalty. Staff acknowledges that it remedied two of the violations when Respondents failed to do so. Specifically, Respondents were ordered to remove all oxidizers, peroxides, reactives, corrosives and/or lab pack wastes within 72 hours of the issuance of the Order. Staff removed these items after the Respondents failed to timely do so at the Department's expense. Staff does not identify the date on which it took this action. Respondents can not be found to have a continuing violation of that part of the Order after the Department took such action. Any penalty associated with the continuing nature of the violation should end on the day of the removal of those items by the Department. The Department also took the action of removing all bulging and leaking tanks and secondary containment systems after the Respondents failed to do so. The Department has not indicated the date that it took this action so I have no specific date to use to calculate the penalty for the continuing nature of the violation. However, the penalty for this violation should also stop accruing on the date that the Department took this action.

The remaining 4 violations admitted by Respondent MEI in the Stipulation are presumed to be continuing as the Respondents have not claimed otherwise. Therefore, I will examine the violations themselves in determining what penalty would be appropriate.

The Department has a Civil Penalty Policy Enforcement Directive ("Policy") dated June 20, 1990 that is the Department's policy and guidance for determining penalties for violations of the ECL. The Department has two main goals; punish the violator and deter future violations.

The Policy states that the penalty should equal the gravity component, plus the benefit component, plus or minus any adjustments. The benefit component is defined in the Policy as "...an estimate of the economic benefit of delayed compliance, including the present value of avoided capital and operating costs and permanently avoided costs which would have been expended if compliance had occurred when required." In this case, the facility was not operating when the Order was issued.(1) There was no economic benefit derived from a continuing operation. However, Respondents derived a significant economic benefit by not complying with the Order. First, the Respondents delayed (perhaps permanently) the cost of the clean up by its noncompliance. Second, the Department was forced to remove materials from the site at the Department's expense when the Respondents failed to do so.

A specific economic benefit not be calculated to determine what benefit the Respondents derived from their noncompliance. The Respondents have avoided, at least temporarily, significant expense in not taking the ordered action. In reviewing the 6 violations it is clear that to comply would have involved considerable expense for the remediation as well as hiring manpower to perform some of the tasks such as the monitoring.

The Policy also examines the gravity component of the violations. The gravity component examines both the potential for harm and actual harm caused by the violations as well as the importance of the type of violation in the regulatory scheme. As previously noted herein, MEI has admitted to six violations of the Order. All six are serious in nature. Of the six, three ordered the Respondents to remove waste immediately and two involved treatment and monitoring of the waste at the site. These were alleged in the Order as situations that posed "imminent threats to the safety of the area in and around the facility".

There is a history of fires at this facility involving the very materials ordered to be removed according to the Summary Abatement Order. In July, 1999 a chemical reaction fire occurred at the Facility involving a 55 gallon drum of organic peroxide waste. It is alleged in the Order that the drum auto-ignited. The local fire companies did not have the training to manage such a fire and their fire response plans entail going no closer than 2000 feet depending on the wind direction. A similar fire occurred in December, 2000. The type of waste involved in both fires is the type of waste that the Respondents were ordered to remove immediately. The Respondents failure to act as ordered placed those in the nearby community in great danger. This facility is located less than one mile from the Madison County Offices, hundreds of homes and businesses and a County jail that houses over 100 inmates. A fire at this facility has the potential to harm hundreds of local residents. Still the Respondent failed to comply with the Order.

At the time of the Order, the facility was unmanned, making early detection of fires impossible. Also, no one was present monitoring the facility's pump and treat system. The need to have these dangerous conditions remedied immediately was obvious and MEI should have taken the appropriate steps to comply with the Order to protect the community. MEI was in the business of treating and storing hazardous waste and therefore it is safe to assume they were aware of the dangers associated with the waste stored at the facility. The two previous fires certainly put them on notice of specific dangers posed by the waste on site.

Setting aside the potential for harm component of this analysis, the actual harm component was not specified and developed by Staff. It bears repeating that this facility is a hazardous waste treatment and storage facility and the type of waste kept at the site poses an obvious threat to the safety of the nearby community.

Summary abatement proceedings are limited to situations which present "...imminent danger..." or are "likely to cause irreversible or irreparable damage to natural resources..." . By the very nature of the proceeding, it is imperative that such an Order be followed by a respondent unless it can be shown that such an Order should be vacated. No such claim was made here. When there is noncompliance, as here, the potential and actual danger continues and the risk for serious, irreparable or irreversible harm is great.

Recommendation

Due to the gravity of the situation, I recommend the maximum penalty allowed under the statute, $2500.00 for each of these six violations and the maximum of $500 per day for each day the violations continued.

In order to properly calculate the exact penalty that should be imposed, the Department Staff must submit proof of the date that it remedied the two violations as well as the costs incurred by the Department in the actions. I direct Staff to submit information regarding the remaining 4 violations, including whether they are continuing and if not, the date the Order was complied with by Respondent.

Conclusion

I direct that the requested information be submitted by Staff within 10 days from the date of this Ruling.

/s/
Molly McBride
Administrative Law Judge

Albany, New York
January 11, 2002

1 The Facility had been closed as of July 24, 2001 by Order of the Madison County Supreme Court.

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