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Oldenburg, Donn - Decision and Order, March 15, 1994

Decision and Order, March 15, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 27 of the New York State Environmental Conservation Law ("ECL")
and Parts 360 and 364 of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York

- by -

DONN OLDENBURG
8800 S. Main Street
Eden, New York 14057

RESPONDENT

DECISION AND ORDER

Case No. R9-3526-91-09

WHEREAS:

  1. Pursuant to a Notice of Hearing issued on August 21, 1992 and adjournments duly taken, an administrative enforcement hearing was held before Administrative Law Judge ("ALJ") William J. Dickerson on July 28, September 2, October 21 and 22, and November 3, 1993 at the Department's Region 9 Office, 270 Michigan Avenue, Buffalo, New York. The Department Staff were represented at the hearing by Annette M. Sansone, Esq., Assistant Regional Attorney. The Respondent was represented by the law firm of Magavern & Magavern, (Michael Beilewich Jr., Esq., of Counsel).
  2. Upon review of ALJ Dickerson's Hearing Report (copy attached), I concur with its Findings of Fact, Conclusions and Recommendation. The record establishes that the Respondent violated the provisions of ECL Section 27-0707 and 364.2(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") by removing, transporting and disposing of regulated waste without a waste transporter permit in that the Respondent trucked at least fifteen dump truck loads of scrap consisting of rags, boots, shoes, sneakers and different types of clothing waste to the Fuchs' farm in the Town of Brant, Erie County.
  3. The record also establishes that the Respondent violated the provisions of ECL Section 27-0707 and 6 NYCRR 360-1.5(a)(2) by disposing of solid waste at a disposal site which was not authorized pursuant to 6 NYCRR Part 360 to accept such waste for disposal in that the Respondent disposed of at least fifteen dump truck loads of regulated industrial-commercial waste at an unpermitted site in the Town of Brant, Erie County.
  4. I concur with the ALJ's analysis concerning the amount of the civil penalty to be assessed for the violations committed.

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

  1. Respondent is found to have violated the provisions of ECL Section 27-0707 and 6 NYCRR 364.2(a) by removing, transporting and disposing of at least fifteen dump truck loads of a regulated waste without a waste transporter permit and the Respondent is also found to have violated the provisions of ECL Section 27-0707 and 6 NYCRR 360-1.5(a)(2) by disposing of solid waste at a disposal site which was not authorized pursuant to 6 NYCRR Part 360 to accept such waste for disposal by disposing of at least fifteen dump truck loads of regulated industrial-commercial waste at an unpermitted site in the Town of Brant, Erie County.
  2. Respondent is assessed a civil penalty of FIVE HUNDRED DOLLARS ($500) for each of these thirty violations. The penalty of FIFTEEN THOUSAND DOLLARS ($15,000) shall be due and payable ninety (90) days after the service of a conformed copy of this Order on the Respondent.
  3. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 9, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  4. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, ACTING COMMISSIONER

Dated: Albany, New York
March 15, 1994

TO: Mr. Donn Oldenburg
8800 S. Main Street
Eden, New York 14057

Michael Beilewich Jr., Esq.
Magavern & Magavern
1100 Rand Building
Buffalo, New York 14203

Annette Sansone, Esq.
Assistant Regional Attorney
NYS Department of
Environmental Conservation Region 9,
270 Michigan Avenue
Buffalo, New York 14203-2999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the -

Alleged Violations of Article 27 of the New York State Environmental Conservation Law and
Parts 360 and 364 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the
State of New York by

DONN OLDENBURG
8800 S. Main Street
Eden, New York 14057

RESPONDENT

Case No. R9-3526-91-09

HEARING REPORT

- by -

_____________/s/_____________
William J. Dickerson
Administrative Law Judge

Proceedings

Pursuant to a Notice of Hearing issued to Donn Oldenburg (the "Respondent") on August 21, 1992 by the Department of Environmental Conservation (the "Department"), through its Region 9 Office, an administrative enforcement hearing was scheduled to be convened at 9:30 A.M. on September 29, 1992 at the Department's Region 9 Office, 270 Michigan Avenue, Buffalo, New York. The hearing was adjourned at the request of the Respondent.

The hearing was held before Administrative Law Judge William J. Dickerson on July 28, 1993 at the Department's Region 9 Office and was continued pursuant to adjournments duly taken on September 2, 1993, October 21 and 22, 1993 and November 3, 1993 at the same location.

The Department Staff were represented at the hearing by Annette M. Sansone, Esq., Assistant Regional Attorney. The Respondent was represented by the law firm of Magavern & Magavern, 1100 Rand Building, Buffalo, New York (Michael Beilewich Jr., Esq., of Counsel).

The Respondent's and the Department Staff's Reply Briefs were received in the Office of Hearings on February 28, 1994.

Charges

  1. The Department Staff has alleged that the Respondent has violated the provisions of Section 27-0707 of the Environmental Conservation Law ("ECL") and 364.2(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") by collecting, removing, transporting and disposing of regulated waste without a waste transporter permit in that the Respondent, on or about May 11, 1990, contracted with Mass Industries for the transportation and disposal of regulated industrial-commercial waste and trucked approximately fifteen dump truck loads of such waste to a site in the Town of Brant, Erie County.
  2. The Department Staff has alleged that the Respondent has violated the provisions of ECL Section 27-0707 and 6 NYCRR 360-1.5(a)(2) by disposing of solid waste at a disposal site which was not authorized pursuant to 6 NYCRR Part 360 to accept such waste for disposal in that the Respondent, on or about May 11, 1990, disposed of approximately fifteen dump truck loads of regulated industrial-commercial waste at an unpermitted site in the Town of Brant, Erie County.

Relief Sought

The Department Staff requests an Order be issued which:

  1. Finds the Respondent has violated ECL 27-0707 and 6 NYCRR 360-1.5(a)(2) and 364.2(a);
  2. Assesses the Respondent a civil penalty of $15,000; and
  3. Such other relief as the Commissioner shall deem appropriate.

Answer

The Respondent filed an Answer on September 18, 1993 which admitted the Respondent is the owner and operator of Weld-Fab and/or Southtown Trucking and Trenching located at 8800 S. Main Street, Eden, New York and which admitted certain statutory and regulatory provisions set forth in the Complaint. The Answer denied all other allegations of the Complaint and demanded dismissal of the Complaint.

Summary of the Department Staff's Position

The Department Staff claims that the Respondent contracted with Mass Industries for the transportation and disposal of regulated industrial-commercial waste. Pursuant to that contract, the Respondent and/or his agent hauled approximately 15 truck loads of regulated waste without a Part 364 permit. The Respondent and/or his agent dumped approximately 15 truck loads of regulated waste at a disposal site which was not authorized to accept such waste for disposal pursuant to 6 NYCRR Part 360.

Summary of the Respondent's Position

The Respondent claims that he did not commit the acts alleged in the Complaint and, even if he did, they are so de minimis that it is a waste of the taxpayer's money to chase after him. The Respondent also claims that he is not a man of means, that he is in debt and that he is in the process of settling arrearages to the Internal Revenue Service.

Pertinent Definitions

6 NYCRR Part 364

A solid waste is any garbage, refuse, sludge or any solid, liquid, semi-solid or contained gaseous material, resulting from industrial, commercial, mining, agricultural, community or other activities, which is discarded, disposed of, burned or incinerated, including being burned as a fuel for the purpose of recovering usable energy, or is being accumulated, stored, or physically, chemically, or biologically treated in lieu of or prior to being disposed of, burned or incinerated,or which has served its original intended use and is sometimes discarded, or is a manufacturing or mining by-product and sometimes is discarded. [6 NYCRR 364.1(d)(1)]

A regulated waste is a solid waste which is raw sewage, septage, sludge from a sewage or water supply treatment plant, waste oil or industrial-commercial waste, including hazardous waste. [6 NYCRR 364.1(d)(2)]

An industrial-commercial waste is any solid waste which originates at, is generated by or occurs as a result of any commercial activity. [6 NYCRR 364.1(d)(3)]

6 NYCRR Part 360

Solid waste means any garbage, refuse,sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials including solid, liquid, semi-solid, or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations, and community activities. [6 NYCRR 360-1.2(a)(1)]

A material is discarded if it is abandoned by being:

(i) disposed of; (ii) burned or incinerated; or (iii) accumulated, stored or physically or biologically treated (other than burned or incinerated) instead of being disposed of. [6 NYCRR 360-1.2(a)(2)]

A material is disposed of if it is discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water so that such material or any constituent thereof may enter the environment or be emitted into the air or discharged into groundwater or surface water. [6 NYCRR 360-1.2(a)(3)]

Disposal facility means a solid waste management facility or part of one in or on solid waste is intentionally placed, including any land or water, and at which solid waste will remain after closure. [6 NYCRR 360-1.2(b)(52)]

Findings of Fact

  1. Donn Oldenburg is the owner and operator of Weld-Fab and Southtowns Trucking and Trenching which are located at 8800 S. Main Street, Eden, New York. Southtowns Trucking and Trenching does excavating, installation of leach beds and sewer lines, bulldozing and hauling stone and top soil. Weld-Fab does any type of welding and fabrication of steel.

    Charge I

  2. Donn Oldenburg signed a contract (Exhibit No. 9) with Mass Industries which was also located at 8800 S. Main Street, Eden, New York for the transportation and disposal of scrap. The contract is dated May 11, 1990. Mass Industries was in the business of recycling used clothing by washing and selling it in Third World countries. Mass Industries occasionally sold the clothing directly to the public. Mass Industries also washed and rewashed gloves for the Ford Motor Company, disposing of the gloves which were no longer serviceable.
  3. The scrap consisted of rags, boots, shoes, sneakers and different types of clothing, some of which had been burnt, some of which had oil stains, some of which had been water damaged and some of which were moldy. This material had to be removed from the portion of the building occupied by Mass Industries because of a pending sale of the building.
  4. Based on Department records, neither Donn Oldenburg or Southtowns Trucking and Trenching have been issued permits to transport regulated waste pursuant to 6 NYCRR Part 364. Mr. Oldenburg admitted that he never had a permit to haul regulated waste. Mr. Oldenburg admitted having his employee, Robert Taylor, haul 53 loads of scrap clothing from Mass Industries to the Fuchs' farm for disposal over a two week period.

    Charge II

  5. Donn Oldenburg reached an agreement with Peter Fuchs for the disposal of scrap from Mass Industries at the Fuchs' farm. As noted above, Mr. Oldenburg admitted that 53 loads of scrap clothing were hauled from Mass Industries to the Fuchs' farm for disposal.
  6. The Fuchs' farm is located at 877 Milestrip Road in the Town of Brant, Erie County. Peter Fuchs allowed Robert Taylor to dump approximately fifteen 10-wheel dump truck loads of commercial waste which he believed to be from Mass Industries over a twelve day period. Mr. Fuchs received $2000 in cash from Mr. Taylor for allowing Mr. Taylor to dump the waste on the Fuchs farm.
  7. Peter Fuchs signed two Orders On Consent on July 29, 1991; one for operating a solid waste management facility without having a valid operating permit, a violation of 6 NYCRR 360.1.7(a)(1)(ii) and the other for burning rubbish generated by commercial activity in an open fire, a violation of 6 NYCRR 215.2(e).
  8. Following a fire at the Fuchs' farm in July 1991, Peter Fuchs buried the scrap which had been dumped there in May of 1990.

Conclusions

  1. The scrap material hauled from Mass Industries by the Respondent, consisting of various types of clothing, some of which were oil stained, burnt, water damaged or moldy and all of which were to be disposed of, clearly constitute industrial-commercial waste, and, as such, is a regulated waste as defined by 6 NYCRR 364.1(d)(2).
  2. 6 NYCRR 364.2(a) reads in pertinent part as follows:

    "No person shall, except pursuant to and in accordance with a valid permit issued pursuant to this Part:

    1. collect or remove any regulated waste from its point of origin, generation or occurrence;
    2. transport any regulated waste;
    3. deliver any regulated waste to a treatment, storage or disposal facility, or otherwise dispose of or relinquish possession of any regulated waste other than as specified in such permit;"
  3. In is undisputed that the Respondent did not have a permit to haul regulated waste when he hauled the scrap from Mass Industries to the Fuchs' farm. Such behavior constitutes a violation of the provisions of Section 27-0707 of the Environmental Conservation Law ("ECL") and 6 NYCRR 364.2(a).
  4. 6 NYCRR 360-1.5(a) reads as follows:

    "Solid waste disposal facilities. Except as provided for in Subparts 360-10 and 360-17 of this Part, no person shall dispose of solid waste in this state except at:

    1. a disposal facility exempt from the requirements of this Part; or
    2. a disposal facility authorized to accept such waste for disposal pursuant to this Part or to a department issued or court-issued order.
  5. The Fuchs' farm is not a disposal site which was authorized pursuant to 6 NYCRR Part 360 to accept waste for disposal. The Respondent hauled at least 15 loads of scrap consisting of rags, boots, shoes, sneakers and different types of clothing and deposited them on the Fuchs' farm for the purpose of disposing of the scrap pursuant to the terms of the contract with Mass Industries dated May 11, 1990. Such conduct constitutes a violation of the provisions of Section 27-0707 of the Environmental Conservation Law ("ECL") and 6 NYCRR 360-1.5(a)(2).
  6. The scrap which had been dumped at the Fuchs' farm was buried after a fire at the farm in July 1991. There is no evidence that the material deposited at the Fuchs's farm has had or is likely to have any deleterious effects on the environment. Although the complaint initially sought a $25,000 penalty, the Department Staff now recommends imposition of a $15,000 penalty. I concur.

Recommendation

Based upon the foregoing findings and conclusions, I recommend that an Order be issued finding the Respondent in violation of 6 NYCRR 360-1.5(a)(2) and 364.2(a) at least fifteen times each and assessing a civil penalty in the amount of $500 for each violation of 6 NYCRR 360-1.5(a)(2) and 364.2(a) for a total civil penalty of $15,000.

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