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Northeast Environmental Services, Inc. - Order, January 31, 2002

Order, January 31, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Notice of Intent to Revoke New York State Part 373 Hazardous Waste Management Facility Permit issued to

NORTHEAST ENVIRONMENTAL SERVICES, INC.,
Permittee

ORDER

DEC Permit No. R7-2536-00012/00001

WHEREAS:

  1. Staff of the New York State Department of Environmental Conservation, Division of Environmental Enforcement ("Staff", "Department") duly served a Notice of Intent to Revoke ("Notice") New York State Part 373 Hazardous Waste Management Facility Permit upon Northeast Environmental Services, Inc. ("NES"). A hearing was held on December 3, 2001 with regards to the Notice.
  2. Staff appeared and was represented at the hearing by senior attorney Margaret Sheen, Esq. and G. Stephen Hamilton, Hazardous Waste Compliance Counsel. NES appeared by Millennium Environmental Inc. ("MEI") the current owner and operator of the facility. MEI appeared by its President, Joseph Wisneski. Mr. Wisneski acknowledged his right to counsel and indicated his intention and preference to proceed pro se.
  3. Upon review of the record and the hearing report of the Administrative Law Judge ("ALJ") Molly T. McBride, I hereby adopt its Findings, Conclusions and Recommendations as my own.
  4. The allegations which were proven in the present hearing justify the revocation of the permit.

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

  1. The Permittee is found to be in violation of the terms and conditions of the permit issued on October 24, 1991 and therefore, pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), §621.14, the permit shall be revoked as more fully stated in the Conclusions of the hearing report attached hereto.
  2. The Permittee is also found to have violated the terms and conditions of the summary abatement order issued by me on August 16, 2001 and therefore, pursuant to 6 NYCRR §621.14, the permit shall be revoked as more fully stated in the ALJ's hearing report.
  3. The permit issued to Northeast Environmental Services, Inc. on October 24, 1991 is hereby revoked.
  4. All communications between the Permittee and the Department Staff concerning this Order shall be made to the Department's Central Office, Division of Environmental Enforcement, 625 Broadway Albany, New York 12233-5500, attn: G. Stephen Hamilton, Esq.
  5. The provisions, terms and conditions of this Order shall bind the Permittee, its agents, servants and employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Permittee, including but not limited to Millennium Environmental Inc. and Millennium Environmental of New York and their agents, servants and employees, successors and assigns and all persons, firms and corporations acting for or on behalf of them.

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

Albany, New York
January 31, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter of Notice of Intent to Revoke New York State Part 373 Hazardous Waste Management Facility Permit issued to

NORTHEAST ENVIRONMENTAL SERVICES, INC.

HEARING REPORT

DEC Permit No. 7-2536-00012/00001

-by-

/s/
Molly T. McBride
Administrative Law Judge

Background

This matter is a permit revocation proceeding. New York State Department of Environmental Conservation (the "Department", "Department Staff") has sought to revoke the permit issued to Northeast Environmental Services, Inc. ("NES") based upon NES's violation of the terms and conditions of the permit. A second ancillary action, a summary abatement proceeding was commenced after Staff sought to revoke the permit. At the conclusion of the permit revocation hearing Department Staff requested that the permit be revoked based upon the violations of the permit terms and conditions as well as noncompliance with the summary abatement order. For purposes of clarity, the following is a chronology of the pertinent events.

  1. On October 24, 1991 the Department issued a permit ("Permit") to Northeast Environmental Services, Inc. to construct and operate a new hazardous waste management facility. The hazardous waste management facility ("Facility") is located in the Town of Canastota, New York.
  2. ERD Waste Corp. ("ERD") purchased the Facility in 1996 from NES.
  3. Millennium Environmental Inc. ("MEI"), through its subsidiary Millennium Environmental of New York, purchased the Facility in 1999 from ERD.
  4. Effective March 31, 2001, MEI turned over operation of the Facility to Environmental Design and Services. MEI retained ownership and control of the Facility.
  5. The New York State Supreme Court, County of Madison, issued an Order on July 24, 2001 closing the Facility.
  6. The Department issued a Notice of Intent to Revoke New York State Part 373 Hazardous Waste Management Facility Permit ("Notice") on August 8, 2001. The Notice was sent to NES.
  7. Department Commissioner Erin M. Crotty issued a Summary Abatement Order ("SAO") on August 16, 2001, ordering NES and MEI to undertake certain remediation action at the Facility and also ordered that the Facility not accept any more waste. NES was named in the SAO and Notice as the Permit remained in the name of NES.
  8. By Stipulation dated August 27, 2001, MEI waived its right to a hearing in the summary abatement proceeding and admitted that it was in violation of the SAO.
  9. A hearing was held in the permit revocation matter on December 3, 2001.

Proceedings

Pursuant to Part 622 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 622") an administrative hearing was held to consider the Notice issued by the Department to NES. The matter was assigned to Administrative Law Judge ("ALJ") Molly T. McBride, the ALJ assigned to the above-referenced summary abatement proceeding.

As noted herein, this matter was commenced by Notice of Intent to Revoke New York State Part 373 Hazardous Waste Management Facility Permit dated August 8, 2001. The Department issued the Notice to NES, the named Permittee. The Facility had changed owners and operators after THE Permit was issued in 1991 but the Permit remained in the name of NES.

The Notice contains a table of 25 "causes" as the basis for the Department's revocation request. The Notice is attached hereto as Exhibit A and made a part hereof. Said Notice advised NES that a hearing could be requested within 15 calendar days of the mailing of the Notice.

A hearing request was served on behalf of NES. NES appeared by MEI who alleged to be the owner of NES. A hearing was scheduled for November 26, 2001.

Permit Revocation Hearing

The permit revocation matter scheduled for November 26, 2001 was to be held at the Department's Region 7 Office located in Syracuse, New York. On November 21, 2001 a request for an adjournment was made to the ALJ on behalf of the Permittee to allow the Permittee time to retain legal counsel. The request was granted and the hearing was adjourned until December 3, 2001. After the adjournment was granted, Staff requested that the hearing be held at the Department's central office located at 625 Broadway, Albany, New York, rather than the regional office. The hearing was moved to the Department's central office without objection.

The hearing was held on December 3, 2001. The Department appeared by Margaret Sheen, Esq., senior attorney and G. Steven Hamilton, Esq., Hazardous Waste Compliance counsel. Joseph Wisneski, president of MEI, appeared for Permittee. He appeared pro se, acknowledged he was aware of his right to counsel and indicated his intention and preference to proceed pro se.

The Permit the Department is seeking to revoke was issued to NES on October 24, 1991. Although the operator of the Facility has changed at least three times since the Permit was issued in 1991, the Permit has not been modified to reflect the change in owner/operator and Department Staff claims it received no official notification that NES was no longer operating the Facility.

The Department has requested that the Permit be revoked based upon the 25 violations of the Permit terms and conditions outlined in the Notice served herein. MEI admitted and acknowledged that all violations alleged by the Department in the Notice had occurred. (T. 93)* "I'm not going to even dispute it." (T. 93)(1)

The following witnesses testified on behalf of the Department: James W. Dolen, Jr., chief of the Tank and Container Permitting section of the Hazardous Waste Bureau; Isaac Natarajan, environmental engineer; Timothy DiGulio, environmental engineer; and Salvatore Carlomagno, chief of the Compliance Section of the Hazardous Waste Bureau.

Joseph Wisneski was the only witness for the Permittee.

Position of the Parties

Department

The Department contends it found 25 violations of the Permit when the facility was inspected on June 26, 2001. Due to the number and nature of the violations, the Department is asking that the Permit be revoked.

Permittee

The Permittee, by MEI, has admitted the violations alleged by the Department. However, MEI is asking that the Permit not be revoked so that it can sell the assets of the company, including the Permit. MEI offered little information at the hearing about a potential buyer.

Findings of Fact

  1. A hazardous waste facility permit was issued to NES on October 24, 1991 for the operation of a hazardous waste storage and treatment facility at Marguerite Drive West, RR #3, Canastota, New York.
  2. NES operated the Facility from the time that the Permit was issued until 1996 when the Facility was purchased by ERD. MEI purchased the Facility from ERD in 1999 and operated it until March, 2001 at which time it turned over operation but not ownership to Environmental Designs and Solutions.
  3. The Department was not notified of the changes in owner or operator at the Facility. The Permit was never transferred from NES to any other operator or owner.
  4. The Facility was inspected by Department Staff on June 26, 2001. During the inspection, numerous violations of the terms and conditions of the Permit were found.
  5. The Facility was closed on July 24, 2001, by Order of the Madison County Supreme Court upon application by the Town of Lenox. The Town alleged numerous violations of the Building and Fire Code.
  6. A Summary Abatement Order was issued on August 16, 2001 by Commissioner Erin M. Crotty. The SAO directed the Respondents NES and MEI to take certain actions with regards to the Facility. It also scheduled a hearing on the SAO for August 27, 2001.
  7. MEI executed a stipulation on August 27, 2001 waiving its right to a hearing in the summary abatement proceeding and admitting MEI was in violation of the SAO.(2)
  8. MEI admitted that it violated the terms and conditions of the Permit as alleged by Staff in the Notice.

Discussion

This Facility has operated as a hazardous waste treatment and storage facility since at least late 1991 until it was closed in July, 2001 by Order of the New York State Supreme Court, Madison County. The Permit issued in 1991, and in effect at the time that the Notice was served, was issued to Northeast Environmental Services, Inc. Although there were 3 changes in operators and at least 2 changes in ownership of the Facility since the Permit was issued in 1991, the Permit was never transferred from NES to any of the subsequent owners or operators.

Joseph Wisneski, President of MEI, testified that ERD purchased the Facility in 1996 from NES. (T. 155) Although it was not specifically stated, presumably ERD continued to operate the Facility, despite the change in owner and operator, until 1999 when MEI purchased the Facility after ERD had filed a bankruptcy petition.

Joseph Wisneski testified that MEI was the parent company of NES although no documents were produced to confirm this. (T.7) The Department presented no evidence with regards to ownership or operation of the facility now or at any time since the Permit was issued.

There is no dispute that the Facility was being operated in violation of the terms and conditions of the Permit.

The violations of the terms and conditions of the Permit that have been admitted are serious and significant in both the type of violations and the number of violations. The Facility held at least 1200 drums of hazardous waste at various stages of disrepair at the time the SAO was issued on August 16, 2001. Staff has alleged that the site contained bulging and leaking drums that contained hazardous waste such as oxidizers and reactives. These wastes can auto-ignite. Even more disconcerting, the Facility has been shut down since July, 2001 and there are no employees at the Facility maintaining the required safety measures including a pump and treat system for previously discovered groundwater contamination.

MEI had been trying to sell the facility for at least several months prior to the issuance of SAO. That effort has been unsuccessful to date but apparently is continuing. However, while MEI has been concentrating its effort in selling the business, the Facility continues to pose a serious threat to the environment and the community due to both the fact that waste remains at the site and that the monitoring and safety systems at the Facility are not staffed.

The Department has been forced to take certain remedial measures and incur the expense of clean up of some of the more dangerous wastes at the Facility as an immediate measure to mitigate environmental harm and to protect the community from harm. The Department stated at the hearing that it took such action after MEI failed to comply with the SAO. MEI admitted that it had not complied with the SAO but Mr. Wisneski testified that a potential purchaser has been voluntarily removing some of the waste from the Facility, in anticipation of purchasing the Facility. No specifics were given as to what work has been done by this third party and what work has been done by the Department to remediate the site.

Conclusions of Law

  1. 6 NYCRR 622.11(b)(1) states: "The Department bears the burden of proof on all charges and matters which they affirmatively assert in the instrument which initiated the proceeding."
  2. The Permit has been violated as alleged by Department Staff in the Notice. The SAO has not been complied with either.
  3. 6 NYCRR §621.14 (a) states, in relevant part, that "Permits may be modified, suspended, or revoked at any time, ... on any of the grounds set forth in paragraphs (1) through (5) of this subdivision." Paragraph (2) states as grounds for revocation, "failure by the permittee to comply with any terms or conditions of the permit;" and Paragraph (5) states as grounds for revocation "noncompliance with ... orders of the commissioner..."
  4. The Department has met its burden of proof that the grounds for permit revocation have been satisfied.

Conclusion

MEI has admitted the violations alleged by the Department and admitted its noncompliance with the SAO. Two of the five grounds for permit revocation have been established.

Recommendation

Based upon violations of the Permit and the violations of the Commissioner's Summary Abatement Order, the Permit should be revoked.

1 MEI appeared for the SAO hearing by Joseph Wisneski, President, and counsel David Wander, Esq. MEI waived its right to a hearing regarding the SAO and executed a written stipulation admitting that it was in violation of the SAO as of the date of the Stipulation, August 27, 2001

* Numbers in parenthesis refer to pages in the hearing record transcript

2 I hereby take official notice that MEI violated the Summary Abatement Order issued by the Commissioner on August 16, 2001.

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