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Mohawk Tire Storage Facility - Decision and Order, October 18, 1999

Decision and Order, October 18, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Causing, Engaging in or Maintaining a Condition or Activity which Presents an Imminent Danger to the Health or Welfare of the People of New York State or Which is likely to Result in Irreversible or Irreparable Damage to Natural Resources of the State in Violation of Section 71-0301 of the Environmental Conservation Law ("ECL") of the State of New York and of Part 620 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), and the Alleged Violations of ECL Article 27 and 6 NYCRR Part 360, by

Vincent Williamson,
Mohawk Tire Storage Facility, Inc.,
Mohawk Tire Recycling, Inc.,
Mohawk Recycling Co.,
Mohawk Extractive Industries, Inc.,
Mohawk Extractive Industries, Ltd.,
Mohawk Recycling Co., Inc.,
Mohawk Extractive Industries Limited,
Mohawk Industries Inc.,
Mohawk Truck and Equipment Sales, Inc.,
Mohawk Rubber Sales, Inc.,
Kathryn Williamson,
(named individually, but for purposes of this action, collectively referred to as the "Mohawk Respondents")
and
Philip Rechnitzer
Respondents

DECISION AND ORDER OF THE COMMISSIONER

DEC Case No. D5-0001-99-06

and

In the Matter of the Proposed Revocation of Waste Transporter Permit No. 5A-140, Currently Held by Respondents Vincent C. Williamson and Mohawk Tire Recycling, Inc., as well as the Denial of Any Modification and/or Renewal of Said Permit.

WHEREAS:

  1. Pursuant to a Summary Abatement Order and Notice of Hearing dated June 8, 1999, and supplemented on June 11, 1999 and June 18, 1999, the above named Respondents and the Department Staff submitted papers, in lieu of a hearing, to Administrative Law Judge ("ALJ") Robert P. O'Connor for a determination in accordance with 6 NYCRR §§620.3 and 621.14, regarding the Department's proposal to continue and modify the Summary Abatement Order and to revoke Waste Transporter Permit No. 5A-140 and further deny modification/renewal of this Waste Transporter Permit.
  2. ALJ O'Connor reviewed this matter and submitted his Report pursuant to NYCRR §§620.3 and 621.14.
  3. Upon my consideration of ALJ O'Connor's Report and the written filings in this matter, I concur with and adopt the ALJ's Findings of Fact, Conclusions and Recommendation which establish that the Respondents in these matters have failed to contradict any of the factual assertions made by the Department, that the Respondents' operation of a waste tire storage facility poses an imminent danger to the health and welfare of the people of the State and is likely to result in irreversible and irreparable damage to natural resources, and that the two Respondents holding Waste Transporter Permit No. 5A-140 are guilty of violating the Environmental Conservation Law and attendant rules and regulations.
  4. I particularly concur with the ALJ that these Respondents are unsuitable to be permitted to operate a waste tire storage facility and/or to transport regulated, i.e. - waste tires, within the State of New York. In determining the appropriate course of action in these matters, I have taken into account the particular circumstances of these matters as established in the administrative and judicial records compiled in these cases.

NOW, THEREFORE, having considered these matters and being duly advised, it is ORDERED that:

  1. The named Respondents have violated ECL Article 27 and 6 NYCRR Parts 360 and 364 in their operation of a waste tire storage facility and transportation of waste tires within the State.
  2. The Summary Abatement Order, as amended, is continued and modified as sought by the Department Staff, to suspend the proactive terms of the Summary Abatement Order, in order to be consistent with the preliminary injunction order issued by Judge Harold J. Hughes on July 29, 1999.
  3. Waste Transporter Permit N. 5A-140 is revoked and the Respondents' applications for modification and renewal of this permit are denied.
  4. These matters are remanded to the Department Staff for further action pursuant to the ALJ's Report and this Decision and Order.
  5. The provisions, terms and conditions of this Decision and Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.
  6. All communications between the Respondents and the Department concerning this Decision and Order shall be made to the Director, Division of Environmental Enforcement, Attention: Dominick R. Cordisco, Esq., Assistant Counsel, New York State Department of Environmental Conservation, Room 627, 50 Wolf Road, Albany, New York 12233-5500.

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

Dated: Albany, New York
October 18, 1999

To: Carl T. Ferrentino, Esq.
Attorney for the Mohawk Respondents
Feller & Ferrentino
488 Broadway - Suite 512
The Broadway Arcade
Albany, New York 12207

Vincent Williamson
Mohawk Tire Recycling, Inc.
Schoolhouse Lane
Waterford, NY 12188

Mohawk Tire Storage Facility, Inc.
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Mohawk Tire Recycling, Inc.
P.O. Box 234
Waterford, NY 12188

Mohawk Recycling Co.
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Mohawk Extractive Industries, Inc.
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Mohawk Extractive Industries, Ltd.
P.O. Box 234
Waterford, NY 12188

Mohawk Recycling Co., Inc.
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Mohawk Extractive Industries, Limited
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Mohawk Industries, Inc.
P.O. Box 234
Waterford, NY 12188

Mohawk Truck and Equipment Sales, Inc.
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Mohawk Rubber Sales, Inc.
P.O. Box 234
Schoolhouse Lane
Waterford, NY 12188

Kathryn Williamson
P.O. Box 234
Waterford, NY 12188

Philip Rechnitzer, pro se
201 Verbeck Lane
Clifton Park, New York 12065

Dominic R. Cordisco, Esq.
Assistant Counsel
Division of Environmental Enforcement
New York State Department of
Environmental Conservation
50 Wolf Road, Room 627
Albany, New York 12233-5500

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Causing, Engaging in or Maintaining a Condition or Activity which Presents an Imminent Danger to the Health or Welfare of the People of New York State or Which is likely to Result in Irreversible or Irreparable Damage to Natural Resources of the State in Violation of Section 71-0301 of the Environmental Conservation Law ("ECL") of the State of New York and of Part 620 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), and the Alleged Violations of ECL Article 27 and 6 NYCRR Part 360, by

Vincent Williamson,
Mohawk Tire Storage Facility, Inc.,
Mohawk Tire Recycling, Inc.,
Mohawk Recycling Co.,
Mohawk Extractive Industries, Inc.,
Mohawk Extractive Industries, Ltd.,
Mohawk Recycling Co., Inc.,
Mohawk Extractive Industries Limited,
Mohawk Industries Inc.,
Mohawk Truck and Equipment Sales, Inc.,
Mohawk Rubber Sales, Inc.,
Kathryn Williamson, (named individually, but for purposes of this action, collectively referred to as the "Mohawk Respondents") and
Philip Rechnitzer
Respondents,

REPORT OF THE ADMINISTRATIVE LAW JUDGE

DEC Case No. D5-0001-99-06

and

In the Matter of the Proposed Revocation of Waste Transporter Permit No. 5A-140, Currently Held by Respondents Vincent C. Williamson and Mohawk Tire Recycling, Inc., as well as the Denial of Any Modification and/or Renewal of Said Permit.

Background

This action began with the Department Staff's issuance of a Summary Abatement Order and Notice of Hearing in this matter dated June 8, 1999. A Supplemental Summary Abatement Order was issued on June 11, 1999 adding two additional corporate entities as respondents. A Second Supplemental Summary Abatement Order was issued on June 18, 1999 adding three additional corporate entities and one individual as respondents.

In the Summary Abatement Order, the Commissioner found, following investigation by the Department Staff, that the Respondents were causing, engaging in and/or maintaining conditions and activities which in his judgment present an imminent danger to the health or welfare of the people of the State or result in or are likely to result in irreversible or irreparable damage to natural resources, through their ownership and operation of a waste tire facility located in the Towns of Halfmoon and Waterford, Saratoga County, New York. Furthermore, the Mohawk Respondents' activities include the hauling of waste tires around New York State under Waste Transporter Permit No. 5A- 140. Due to numerous instances of noncompliance with the ECL with respect to the hauling of waste tires, the Department Staff notified Respondents Vincent C. Williamson and Mohawk Tire Recycling, Inc. that it intended to revoke Waste Transporter Permit No. 5A-140. Additionally, the Department advised these two Respondents that it would deny renewal or modification of Waste Transporter Permit No. 5A-140 based on such noncompliance. Consequently, due to the imminent threat to the people and environment of the State posed by the Halfmoon/Waterford facility and because of repeated instances of noncompliance regarding the hauling of waste tires, the Commissioner ordered Respondents to discontinue, abate or alleviate such conditions and activities.

Under the provisions of 6 NYCRR §620.3, upon issuance of a summary abatement order, the Department must within 15 days schedule a hearing at which the respondent shall have the burden of proving that the conditions or activities which are the subject of the summary abatement order do not present an imminent danger to the health or welfare of the people of the State, or result in or are likely to result in irreversible or irreparable damage to natural resources.

The Department's rules and regulations also provide for the consolidation of the summary abatement order hearing with any other hearing on the alleged violation(s) of the ECL and/or 6 NYCRR by the named respondent(s).

In the instant case, the required hearing was scheduled to commence on June 22, 1999. At the Respondents' request the hearing was first adjourned to July 12, 1999, and then to August 10, 1999. Since Respondents Vincent C. Williamson and Mohawk Tire Recycling, Inc. had previously requested a hearing regarding the Department's Notice of Intent to Revoke Waste Transporter Permit No. 5A-140 and Denial of Applications for Permit Modification and Renewal, the Summary Abatement Order hearing was, upon the consent of the Parties, consolidated with Waste Transporter Permit Revocation/Denial matter.

On the eve of the second adjourned hearing date, via a telephone conference call among the Department Staff counsel, the attorney for the Mohawk Respondents and the Administrative Law Judge ("ALJ"), the Mohawk Respondents verbally waived their opportunity to formally appear at a hearing to contest the Department Staff's Summary Abatement Order, but rather requested to submit a statement in writing which would provide reasons for the Department Staff to discontinue the Summary Abatement Order. With the concurrence of the Department Staff, the ALJ established a schedule for the submission of written statements in this matter, with the Mohawk Respondents to submit a statement on August 12, 1999, and the Department Staff to submit a response on August 19, 1999, a date subsequently extended to August 23, 1999, upon agreement by the Mohawk Respondents and verbal approval by the ALJ. The respective statements were received on this modified schedule.

Additionally, on July 9, 1999, the Department Staff notified Vincent C. Williamson and Mohawk Recycling Co., pursuant to 6 NYCRR §360-1.4(a), of its intent to withdraw the registered status of the Williamson/Mohawk solid waste management facility, No. 46K02, on the grounds of noncompliance with registration conditions, the ECL and 6 NYCRR Parts 360, 364 and 900 et seq., as set forth in the Summary Abatement Order, affidavits thereto, and the State Supreme Court Action - Index No. 3366-99, as well as in the Department's Notice of Intent to Revoke Waste Transporter Permit No. 5A-140. As provided in 6 NYCRR §621.14(d), Respondents were advised that within 15 days of such notification they could submit a written statement to the Department giving reasons that the registration of the solid waste management facility should not be revoked, or requesting a hearing, or both. The Respondents failed to timely submit such a statement or request for a hearing, thus causing the registration to be withdrawn effective July 24, 1999, following which any continued waste tire recycling activities by these Respondents at their solid waste management facility are considered to be violations of the ECL.

The Mohawk Respondents' Statement

The Mohawk Respondents were represented in this matter by Carl T. Ferrentino, Esq., of the law firm: Feller and Ferrentino, 488 Broadway - Suite 512, The Broadway Arcade, Albany, New York 12207.

In their statement in lieu of hearing, the Mohawk Respondents plead financial inability to properly defend against the factual allegations of the Department Staff regarding the various operations of such Respondents relating to their waste tire facility in the Towns of Halfmoon and Waterford, Saratoga County, New York and their waste tire hauling activities throughout New York State. The Mohawk Respondents maintain that since the State commenced action against them in State Supreme Court in Albany County, the Orders of the Court supercede any administrative orders issuable and/or issued by the Commissioner of Environmental Conservation which bear on the same matters. The Mohawk Respondents contend that any duplication of orders from the Supreme Court and the Department cause confusion about control issues for the site and create a burden for the Mohawk Respondents by requiring them to participate in two separate forums, i.e. - the Supreme Court judicial enforcement process and the Department's administrative enforcement process.

The Mohawk Respondents allege that under the doctrine of primary jurisdiction (Flacke v. Onondaga Landfill Systems, Inc. 69 N.Y.2d 355 Court of Appeals March 31, 1987) the Department can fully discharge its duties under the ECL within the purview of the Orders of the Court. Additionally, they allege that since the Commissioner is the plaintiff in the Supreme Court action and is, therefore, accountable to the Court, it is inappropriate for the Commissioner to issue his own decrees on the very same subject matter. They further seek recusal of the Commissioner in the instant administrative proceeding, as well as recusal of "any prosecuting or enforcement officer of the State that has so contributed to the state's effort to seek assessment of penalties and take enforcement action against the Respondents." Consequently, the Mohawk Respondents seek discontinuance of the Summary Abatement Order, requesting that the Summary Abatement Order be rescinded immediately upon the appointment of the Supreme Court-ordered receiver to oversee the remediation of the waste tire facility.

With respect to Waste Transporter Permit No. 5A-140, the Mohawk Respondents do not contest the authenticity of several of the convictions, but note that many of the tickets listed proceeded by default. The Mohawk Respondents cite People v. Kelley 152 Misc.2d 178, 575 N.Y.S.2d 640, Local Criminal Court, Town of Mendon, Monroe County, Sept. 17, 1991, as a theory of defense, wherein certain charges against defendants for transportation of "a regulated waste," old motor vehicle tires, without a valid permit, were dismissed, since waste tires did not constitute a "regulated waste" as of February 19, 1991, the date of the alleged violations in the Kelley case. The Mohawk Respondents claim that this local court decision strikes at the validity of the underlying regulation used to obtain the convictions relied upon by the Department Staff in the instant matter, and that here, the State is incorrect on the law with respect to the underlying prosecutions used to premise the revocation and denial regarding Waste Transporter Permit No. 5A-140. They claim that where the underlying validity of the rule is in question, revocation and denial is arbitrary.

The Department Staff Response

The Department Staff was represented in this matter by Dominic R. Cordisco, Esq., Assistant Counsel in the Department's Division of Environmental Enforcement, Room 627, 50 Wolf Road, Albany, New York 12233-5500.

In its response papers, the Department Staff make significant note that the Mohawk Respondents do not contest any of the factual allegations which led to both: (1) the Commissioner's June 8, 1999 Summary Abatement Order, and as subsequently amended; and (2) the Department Staff's Notices of Intent to Revoke, Denial of Renewal, and Denial of Modification of the Respondent Mohawk Tire Recycling, Inc.'s Waste Transporter Permit.

The Summary Abatement Order required certain immediate proactive actions on the part of the Mohawk Respondents to be accomplished within five days of the June 8, 1999 Summary Abatement Order, in particular with respect to creating adequate passable access roads for firefighting and emergency response equipment into and within their waste tire facility, to removing waste tires and debris from access roads in the "Upper Mohawk Area" portion of the site, to reducing the size and shape of the tire piles at the facility and to implementing a Fire Safety Plan that complies with 6 NYCRR Part 360. The Department Staff notes that, to date, the Mohawk Respondents have failed to comply with these requirements.

Furthermore, the Mohawk Respondents have not complied with a June 17, 1999 State Supreme Court, Albany County, Order to Show Cause and Temporary Restraining Order which required substantially the same actions regarding the Fire Safety Plan and the opening of access roads and lanes, plus an added requirement to fence the entire site. As a result of this non-compliance, a subsequent Supreme Court action, on July 29, 1999, the Court issued a formal Order Granting Preliminary Injunction and Authorizing Receiver, thereby authorizing the Department to nominate a receiver to undertake the management and ultimate remediation of the site, but not requiring any proactive actions on the part of the Mohawk Respondents.

Due to the potential inconsistency regarding the proactive actions required of the Mohawk Respondents in the Summary Abatement Order, but not required in the Supreme Court Preliminary Injunction Order, the Staff has requested herein that the proactive provisions of the Summary Abatement Order, specifically paragraphs designated "II" and "III" on pages 14-15, be suspended at this time, subject to reinstatement of these provisions by the Commissioner as may be warranted in the future.

Staff states that with the exception of: (a) no further acceptance of waste tires at the site, (b) an exposed natural gas pipeline reburied by Niagara Mohawk Power Corporation, and (c) poor installation of approximately 900 feet (out of approximately 6,000 feet needed) of fencing, the conditions at the site which threaten the environment and the health and safety of nearby residents, schools and businesses continue to exist. Therefore, Staff contends there is no justification for rescinding the remainder of the substantive provisions in the Summary Abatement Order, i.e. - no further acceptance of waste tires or other solid waste at the site; immediate cessation of any and all waste tire transporting activity; granting of full access to the site at all times by Department Staff, Attorney General's Staff, and/or their designees, agents or contractors to monitor and ensure compliance with the Order, with the Mohawk Respondents subject to ECL Article 71 sanctions and further enforcement for any failure to comply.

Additionally, Staff states that, contrary to Mohawk Respondents' interpretation of Flacke v. Onondaga Landfill Systems, Inc., the New York State Court of Appeals specifically found that "DEC did not relinquish its jurisdiction [over a site] by invoking the court's jurisdiction," and further, that "the doctrine of primary jurisdiction, however, is inapplicable here."

The Staff asserts that based upon the evidence adduced in Supreme Court, Albany County, the Mohawk Respondents' claims of financial inability are specious, and further, that such claims are irrelevant with respect to the instant administrative proceeding.

The Staff notes that the Mohawk Respondents' call for recusal of the Commissioner and any enforcement officer who participated in the Supreme Court action is misplaced and unjustified, as these Respondents have made no showing to support any claim of bias and have provided no evidence that the outcome of the administrative enforcement process will be in any way flawed.

Furthermore, the Staff contends that there is ample justification for the Department to revoke and deny any subsequent renewal or modification of Waste Transporter Permit No. 5A-140 held by Respondents Vincent C. Williamson and Mohawk Tire Recycling, Inc. The Staff asserts that such a revocation and denial can be justified solely on the convictions of these two permit holders for waste transporter violations in the Town of Colonie, Albany County; Town of Long Lake, Hamilton County; Town of Waterford, Saratoga County and Town of Marcy, Oneida County, let alone over a dozen pending criminal charges in various other local courts around the state. The Staff claims that these convictions and pending charges are indicative of a pattern of conduct and actions through which these two Respondents repeatedly and intentionally avoided and/or disregarded the regulatory requirements of 6 NYCRR Part 364. The Staff points out again that these two Respondents have not contested any of the factual issues related to the Department's revocation and denial actions for Waste Transporter Permit No. 5A-140.

With respect to the legal defense posed by these two Respondents in attempting to declare the waste transporter program invalid, the Staff counters that: a) such a claim is beyond the scope of an administrative enforcement hearing, and b) the decision in the only case cited as a defense by these Respondents, People v. Kelley, is not only not controlling in a Departmental administrative enforcement hearing, but has been specifically rejected by an appellate court [People v. Kelly (sic), Sphon, and Gentile, Ontario County Court, Hon. Frederick T. Henry, Jr., County Judge, November 6, 1992], where despite the disparity in the spelling of Kelley's name, the defendant is the same person as cited in the Town of Mendon decision. The Staff notes that the ECL explicitly includes waste tires in the definition of regulated wastes, thereby requiring a permit for transportation of such waste tires, and that the appellate court determined the existing regulations are valid and effectively implement the intent of the statute.

In conclusion, the Department Staff seeks continuation of the Summary Abatement Order, as modified pursuant to its request, and the revocation/denial of renewal/modification of the Mohawk Respondents' Waste Transporter Permit No. 5A-140.

Discussion

The Department's implementing regulations in both 6 NYCRR §620.3 and §621.14 provide an opportunity for a respondent in a summary abatement order situation and a permittee in a Department initiated revocation situation, respectively, to submit proof or documentation or a statement with reasons that the actions taken or proposed to be taken by the Department are inappropriate. These provisions allow the respondent or permittee to offer information which could counter or disprove the basis upon which the Department is relying for its actions. Notably, in the instant case, the Mohawk Respondents, in the summary abatement action, and Vincent C. Williamson/Mohawk Tire Recycling, Inc., in the permit revocation action, failed to provide any rebuttal to the factual matters presented by the Department Staff.

The Mohawk Respondents' claim of confusion regarding having to participate in both a Supreme Court action and a Departmental administrative enforcement action is without merit. Both the Order to Show Cause/Temporary Restraining Order issued in State Supreme Court, Albany County on June 17, 1999 and the Order Granting Preliminary Injunction issued by the same Court on July 29, 1999 acknowledge implicitly, if not explicitly, that the conditions at the site are intolerable and not in compliance with the Environmental Conservation Law and its companion Rules and Regulations. There is no bar to the Department proceeding both judicially and administratively against any respondent. Furthermore, as noted by Staff, "DEC (does) not relinquish its jurisdiction [over a site] by invoking a court's jurisdiction." (Flacke v. Onondaga Landfill Systems, Inc. 69 N.Y.2d 355 Court of Appeals March 31, 1987) Accordingly, there is no "confusion" as characterized by the Respondents. Additionally, since "the doctrine of primary jurisdiction . . . is inapplicable," (ibid), there is no rationale for the Commissioner or any of the Department's prosecuting attorneys to recuse themselves in the Summary Abatement Order matter. Moreover, there is no demonstration of any bias whatsoever; therefore, the Respondents' request for recusal is without merit.

With respect to the Mohawk Respondents' contention that waste tires do not constitute a "regulated waste, as per People v. Kelley, they are just plain wrong on the law. The appellate court decision in People v. Kelly(sic), Sphon, and Gentile, is very clear that the decision in the Town of Mendon court in People v. Kelley is not binding on higher level courts in the State of New York, nor on the Department in administrative enforcement proceedings. Moreover, the People v. Kelly(sic), Sphon, and Gentile decision directly addresses the issue of the validity of the Department's implementing regulations for the transportation of waste tires as "regulated waste" pursuant to ECL §§27-0303(4) and (12). Where, as here, the statute clearly defines and includes waste tires as a regulated waste in New York State, there is no necessity to further include an express definition of regulated waste in the language of the implementing regulations in 6 NYCRR Part 364. This decision makes clear the distinction between "waste tires," as defined in the ECL and "scraps, including but not limited to . . . rubber," as defined in 6 NYCRR §364.1(e)(2)(vi). It is also very clear that the exemptions listed in 6 NYCRR §364.1(e)(2)(vi), e.g. - vehicles carrying scraps of rubber, were never intended to exclude truckloads of waste tires from regulation under the ECL and companion Rules and Regulations.

Historically in New York State, waste tires were discarded in "dumps" which were unregulated at the state or federal level, until the enactment of the first meaningful regulatory statute for solid waste management facilities, i.e. - ECL Article 27, Title 7, in 1973. Solid waste regulation by the federal government commenced in 1976 with the passage of the Resource Conservation and Recovery Act (RCRA), which required a state solid waste management plan and the closing of all open dumps or their upgrading to sanitary landfill status, with the application of clean cover material over the emplaced solid waste.

In the 1970's, the State enacted regulations to implement the statute, i.e. - 6 NYCRR Part 360, for the first time mandating among other requirements, a permit to construct, modify and/or operate a solid waste management facility. Waste tires, per se, were not addressed in the statute or regulations, although would have been included in the regulatory definition of "other waste material" as any solid material having served its original intended use which is discarded or disposed of or is physically, chemically or biologically treated prior to disposal. With the Department's revision of the Part 360 regulations, effective December 31, 1988, came the first specific regulations for "Waste Tire Storage Facilities" in Subpart 360-13. Subpart 360-13 was revised slightly with the Department's May 28, 1991 revision of Part 360 and was substantially revised effective October 9, 1993.

Waste tires were included within the definition of regulated waste in ECL §§27-0303(4) and (12), with the 1990 amendments to the ECL, effective January 1, 1991, thus requiring permits for any subsequent transportation of waste tires within the State of New York. Since statutes are passed by the legislature and regulations are promulgated by state agencies only to aid in the implementation of the laws, the language of the statute must take precedence over any regulation enacted by an agency. Application of Krauskopf v. Giannelli, 121 Misc. 2d 186, 187, 467 N.Y.S.2d 542, 543 (Sup. 1983).

The Department's position, as upheld in People v. Kelly(sic), Sphon, and Gentile, is that the ECL is unambiguous regarding the status of waste tires as a regulated waste. Further, prior to the 1990 amendments to the ECL, the Department had in place, in 6 NYCRR Part 364, regulations which effectively implement the statute regarding collection, transport and delivery of regulated waste. Where an amended statute provides clear language on what items are regulated under state law, e.g. - the addition of waste tires to the definition of regulated waste, there is no reason or need to amend existing regulations which are already deemed by the agency to be effective and sufficient in implementing the law. Indeed, the Department has been consistent in applying the requirement of a permit pursuant to ECL § 27-0305 and 6 NYCRR Part 364 for the transportation of waste tires. See, e.g., Matter of Ernest J. Force, Permittee, 1993 WL 393490, (DEC Permit No. 1A-320, decision dated September 30, 1993), and Matter of National Tire Compaction Service, Inc., 1993 WL 267973 (DEC Case No. R6-1172-91-01, decision dated June 18, 1993).

Thus, the Mohawk Respondents' theory of defense regarding the suggested invalidity of the waste transporter regulations is unavailing.

Findings of Fact

  1. The Mohawk Respondents have operated a solid waste management facility, to wit, a waste tire storage facility, in the Towns of Halfmoon and Waterford, Saratoga County, New York containing large piles of tires and various buildings. The facility presently contains an estimated 3,000,000 to 5,000,000 tires.
  2. Many of the tire piles do not comply with the height, width, length and separation distances prescribed in the Department's Waste Tire Storage Facility regulations in 6 NYCRR Subpart 360-13, e.g. - maximum height of 20 feet, maximum base width of 50 feet with a surface area of no greater than 10,000 square feet, minimum separation distance of 50 feet between piles and between piles and rights-of way and other regulatory boundaries. The required separation areas are not free of obstructions, debris and vegetation, rendering them impassable to fire and other emergency response vehicles, particularly after periods of precipitation.
  3. In March 1981, the site suffered a tire fire, causing great plumes of thick, black smoke in the area around the site. Since the advent of the 1988 regulations, the Mohawk Respondents have never complied with the regulatory requirement to develop and have in place an acceptable Fire Safety Plan. There is no adequate water source on or near the site which would enable firefighters to effectively combat any new fire at the site. There is inadequate fire detection and/or firefighting equipment on the site to fight even a small blaze. The site is not properly fenced, allowing access by unauthorized individuals. With a helter, skelter array of millions of waste tires, miscellaneous debris and dried vegetation, as well as being readily accessible to curiosity seekers and/or vandals, the site is susceptible to another conflagration. Due to these conditions, firefighters would be unable to access only a small portion of the millions of tires strewn about the site.
  4. A major east-west electric transmission line crosses the site, as does a natural gas transmission pipeline. Until recently, a portion of the gas main has been exposed above the ground surface where the underlying soil has been eroded. A tire fire at the site could involve the gas main and the electric transmission line, causing interruptions in service of both utilities in the local area and beyond.
  5. The site is proximate to and upgradient from the General Electric silicone manufacturing facility in Waterford, as well as near several residences. The site is downgradient from the Waterford-Halfmoon Junior-Senior High School. A tire fire at the site could expose the 1,500 GE employees, hundreds of students and staff and numerous additional nearby workers and residents to potentially toxic chemical fumes and smoke impacts.
  6. The site slopes from west to east towards the old Champlain Barge Canal and the Hudson River. A tire fire at the site could result in rivulets of molten rubber and petroleum byproducts to flow down slope towards and into the river.
  7. Despite the bonding requirements in the 1988 Waste Tire Storage Facility regulations, the Mohawk Respondents have never provided a bond sufficient to cover remediation of a worst case scenario, e.g. - a tire fire, at the site.
  8. Despite the opportunities to correct numerous regulatory deficiencies at the site and regarding their operations, as provided in Consent Orders issued in 1990 and 1996, any or all of the Mohawk Respondents have failed to bring the site or their operations into compliance with the applicable statutory or regulatory standards.
  9. Respondents Vincent C. Williamson/Mohawk Tire Recycling, Inc. hold Waste Transporter Permit No. 5A-140. These Respondents have been convicted of several violations of the ECL and companion regulations in 6 NYCRR Part 364 for their waste hauling activities. There are presently more than two dozen charges against these Respondents pending in various local criminal courts across the State for similar alleged violations.
  10. The Department Staff has indicated its intention to revoke Waste Transporter Permit No. 5A-140, and to deny any modification and/or renewal of said permit proposed by these two Respondents, on the basis of such Respondents' noncompliance with the ECL and attendant regulations.
  11. The Mohawk Respondents and the two Respondents for the Waste Transporter Permit have not contested either the conditions at the site as described by the Department or the convictions and alleged violations of the ECL and regulations regarding the transport of regulated wastes.
  12. The Summary Abatement Order, as further modified, issued to the Mohawk Respondents contained several proactive actions on the part of the Mohawk Respondents, e.g. - removal of waste tires and debris from all access roads, reduction of the size and shape of the tire piles and development and implementation of an acceptable Fire Safety Plan, all to be done within five days of the issuance of the initial Summary Abatement Order. The Mohawk Respondents failed to comply with these proactive measures.
  13. The initial Orders of the State Supreme Court, i.e. - Order to Show Cause and Temporary Restraining Order issued on June 17, 1999, also required proactive actions by the Mohawk Respondents, e.g. - removal of waste tires and debris from the access roads, submission of an acceptable Fire Safety Plan and fencing of the entire site so as to comply with 6 NYCRR Subpart 360-13. The Mohawk Respondents failed to comply with these proactive requirements of the Court.
  14. Subsequently, the State Supreme Court issued an Order Granting Preliminary Injunction and Authorizing Receiver on July 29, 1999. Acknowledging that the Mohawk Respondents failed to undertake the proactive measures directed by both the Department and the Temporary Restraining Order, the Court directed the Department to nominate a receiver that would manage and ultimately remediate the site.
  15. The Summary Abatement Order proactive measures are now inconsistent with the Preliminary Injunction Order of the Court. Consequently, the Department seeks to modify the Summary Abatement Order to bring it into conformity with the Preliminary Injunction Order, by suspending the proactive measures mentioned in Finding No. 11 above.

Conclusions

  1. The Mohawk Respondents have operated a solid waste management facility, to wit, a waste tire storage facility, in a manner which does not comply with the Environmental Conservation Law and implementing regulations in 6 NYCRR Part 360. Such operation is causing a condition which has placed in jeopardy and poses an imminent danger to the health and welfare of the people of the State and is likely to result in irreversible or irreparable damage to natural resources.
  2. By their actions, as well as lack thereof, the Mohawk Respondents and the two Respondents for the Waste Transporter Permit have amply demonstrated that they are unworthy to be permitted either to operate a waste tire storage facility or to transport regulated waste, i.e. - waste tires, within the State of New York.
  3. These Respondents have provided no evidence or testimony in these matters which would counter or disprove the facts and circumstances described by the Department.
  4. A Summary Abatement Order is not necessarily meant to be a static document. As circumstances and conditions regarding the issues addressed in the Summary Abatement Order change, it is appropriate to change the terms of the Summary Abatement Order to accomodate such changed conditions. Therefore, a Summary Abatement Order is subject to modification as necessary in order to address the prevailing circumstances.

Recommendation

In accordance with the above discussion and the facts, circumstances and conclusions as laid out herein, I recommend that the Summary Abatement Order be continued and modified as requested by the Department Staff, i.e. - that the proactive requirements of the original Summary Abatement Order as discussed in Finding of Fact No. 11 above, be suspended, and that Respondent Vincent C. Williamson/Mohawk Tire Recycling, Inc.'s Waste Transporter Permit No. 5A-140 be revoked, and that the Respondent's applications for renewal and modification of its Waste Transporter Permit be denied.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
/s/
ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE

Dated: Albany, New York
September 30, 1999

To:
Carl T. Ferrentino, Esq.
Attorney for the Mohawk Respondents
Feller & Ferrentino
488 Broadway - Suite 512
The Broadway Arcade
Albany, New York 12207

Philip Rechnitzer, pro se
201 Verbeck Lane
Clifton Park, New York 12065

Dominic R. Cordisco, Esq.
Assistant Counsel
Division of Environmental Enforcement
New York State Department of
Environmental Conservation
50 Wolf Road, Room 627
Albany, New York 12233-5500

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