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Northeast Environmental Services, Inc. and Millennium Environmental, Inc. - Order, February 15, 2002

Order, February 15, 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

ORDER

DEC Case # R7-2001-38334

WHEREAS:

  1. Pursuant to Environmental Conservation Law ("ECL") section 71-0301 Commissioner Erin M. Crotty of the New York State Department of Environmental Conservation ("DEC" or "Department") duly issued a Summary Abatement Order ("Order"). The Respondents were given the opportunity to be heard and to present proof that the conditions 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.
  2. The Respondent MEI executed a written Waiver of Hearing waiving its statutory right to a hearing on August 27, 2001 and, accordingly, the hearing in the summary abatement proceeding was cancelled.
  3. 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.
  4. 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. A copy of the Final Brief and supporting papers were filed with the Office of Hearings and Mediation Services. The hearing and the motion were assigned to Administrative Law Judge Molly T. Mc Bride ("ALJ").
  5. Respondent MEI did not submit a response to the Brief. By letter dated September 27, 2001 the ALJ directed MEI to submit a response to the penalty request by October 9, 2001. No response has been submitted.
  6. By Ruling on Motion dated January 11, 2002 the ALJ recommended that the maximum penalty be imposed and directed Department Staff to submit additional information to assist in determining what the appropriate penalties should be. Staff submitted a Response to Ruling on Motion dated January 18, 2002, furnishing the requested information.
  7. The Respondent MEI has acknowledged by the executed Stipulation that it was, as of August 27, 2001, in violation 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.
  8. Submitted herewith is a copy of the Supplemental Ruling on Motion of the ALJ and I adopt the ALJ's ruling which recommends that the maximum penalties be imposed.

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

  1. The Department's request for penalties is granted. The Respondents are assessed penalties in the amount of $274,500.00, the maximum penalties allowed under ECL 71-0301.
  2. All communications from the Applicant to the Department concerning this order shall be made to the NYSDEC, Division of Legal Affairs, G. Stephen Hamilton, Esq., 625 Broadway, Albany, New York 12233.

For the New York State Department of Environmental Conservation
/s/
By: Erin M. Crotty,
Commissioner

Dated: Albany, New York
February 15, 2002

To:

Millennium Environmental, Inc.
Joseph Wisneski
8 Saddle Lane
St. James, New York 11780

G. Stephen Hamilton, Esq.
NYS DEC Office of Counsel
625 Broadway, 14th floor
Albany, New York 12233-5500

David H. Wander, Esq.
Wander & Associates
641 Lexington Avenue, 21st floor
New York, N.Y. 10022

NEW YORK STATE: 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

SUPPLEMENTAL RULING ON MOTION

DEC Case # R7-2001-38334

PROCEEDINGS

This Ruling supplements the Ruling of January 11, 2002 ("Ruling") which addressed the penalty phase of the Summary Abatement Order ("Order") that was issued by NYS Department of Environmental Conservation ("Department'") Commissioner Erin M. Crotty on August 16, 2001.

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 had 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 was submitted.

As noted in the Ruling, the Respondent MEI has acknowledged by Stipulation executed on August 27, 2001 that it was, as of August 27, 2001 in violation of the Order. Therefore, penalties shall be imposed, as per the statute.

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.)

As stated in the Ruling, I find that the initial penalty of $2500.00 for each violation is warranted and that the per day penalties are also warranted.

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. The January 11, 2002 Ruling directed Staff to provide further information to properly calculate the exact penalty that should be imposed. Staff was directed to submit proof of any remedied violation(s), the date that the violation(s) was remedied, as well as the costs incurred by the Department if the Department took the action to remedy the violation. By Response to Ruling on Motion dated January 18, 2002 Staff provided the requested information.

DISCUSSION

As stated, there were a total of six violations at issue. According to Staff, five violations are continuing and one violation was remedied by a contractor hired by and paid for by the Department. Three violations have continued since the issuance of the Summary Abatement Order, the first, second and fourth ordering paragraphs. The maximum penalty for those violations is $74,500.00, $73,500.00 and $75,500.00 respectively. The fifth and sixth ordering paragraphs were complied with for a period of time. Those paragraphs directed Respondent to 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 and within 48 hours of the issuance of the Order; and submit to the Department a description of actions to be performed consistent with the 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. Department Staff has indicated that outside security was retained at the site from September 4, 2001 through December 19, 2001 and the Respondent retained staff onsite during that same time period, meeting the requirement of the sixth ordering paragraph. The maximum penalty for those two violations is $21,500.00 and $22,000.00 respectively.

Additionally, the Department has paid a total of $15,187.65 to an outside contractor to remedy violations that posed an imminent danger. Additional costs may have been incurred by the Department for such action, but no figures were available to Staff. The maximum penalty that can be imposed for each violation is as follows:

For the first violation: $2500.00 penalty plus an additional penalty of $500.00 per day for each day that the violation continued through the date of the Ruling (January 11, 2002) which is $72,000.00 for a total penalty of $74,500.00.

For the second violation: $2500.00 penalty plus an additional penalty of $500.00 per day for each day that the violation continued through the date of the Ruling (January 11, 2002) which is $71,00.00 for a total penalty of $73,000.00.

For the third violation: $2500.00 penalty plus an additional penalty of $500.00 per day for each day that the violation continued through the date that the Department had the violation remedied by an outside contractor (August 29, 2001) for a total penalty of $8,000.00.

For the fourth violation: $2500.00 penalty plus an additional penalty of $500.00 per day for each day that the violation continued through the date of the Ruling (January 11, 2002) which is $73,00.00 for a total penalty of $75,500.00.

For the fifth violation: $2500.00 penalty plus an additional penalty of $500.00 per day for each day that the violation continued through the date of the Ruling (January 11, 2002). The Respondent had a period of compliance which ran from September 4, 2001 through December 19, 2001, $19,000.00($500.00/day for 39 days) for a total penalty of $21,500.00.

For the sixth violation: $2500.00 penalty plus an additional penalty of $500.00 per day for each day that the violation continued through the date of the Ruling (January 11, 2002). The Respondent had a period of compliance which ran from September 4, 2001 through December 19, 2001 $19,500.00 ($500.00/day for 400 days) for a total penalty of $22,000.00.

RECOMMENDATION

Based upon the earlier Ruling and the information furnished by Department Staff, I recommend that Staff's motion be granted and that the maximum penalties allowed be imposed, $274,500.00.

This Ruling can be referred to the Commissioner for final determination.

New York State Department of Environmental Conservation
/s/
Molly T. McBride
Administrative Law Judge

Albany, New York
January 24, 2002

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