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Patton's Busy Bee Disposal - Order, September 1, 1993

Order, September 1, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Part 360 of Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York,
of Environmental Conservation Law Article 27 and of an Order on Consent by

PATTON'S BUSY BEE DISPOSAL SERVICE, INC.,

Respondent

ORDER

DEC File Nos. 90-41 and R9-3126-90-05

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint issued on January 15, 1991, an administrative enforcement hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ") commencing on April 2, 1991 at the Department's Region 9 Office located in Buffalo, New York. The Department Staff appeared by Annette M. Sansone, Esq. The Respondent appeared by J. Timothy Embser, Esq.
  2. Upon review of ALJ DuBois's Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations.
  3. In considering the appropriate relief I have considered the fact that Respondent had prior compliance problems evidenced by the two orders previously issued.

NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. The Respondent is found to be in violation of Order on Consent 85-55 and Order on Consent 87-137, which were issued pursuant to Environmental Conservation Law Article 27, Title 7 and 6 NYCRR Part 360. The Respondent's failure to submit seven quarterly monitoring reports constitutes seven violations of the Orders on Consent.
  2. The Respondent is assessed a civil penalty of Seventeen Thousand and Five Hundred Dollars ($17,500) which shall be due and payable thirty (30) days after the date of service of a conformed copy of this Order on the Respondent.
  3. The Respondent is directed to maintain and monitor the closed landfill and to submit monitoring reports in accordance with 6 NYCRR Part 360 for thirty (30) years from the date of this Order.
  4. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 9 Director, New York State Department of Environmental Conservation Region 9, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  5. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER

_________________/s/___________________

Dated: Albany New York
September 1, 1993

To: Patton's Busy Bee Disposal Service, Inc.
Alfred Almond Road
Alfred Station, New York 14803

J. Timothy Embser, Esq.
Embser & Woltag
164 North Main Street
Wellsville, New York 14895-1152

Annette M. Sansone, Esq.
New York State Department of Environmental
Conservation, Region 9
270 Michigan Avenue
Buffalo, New York 14203-2999

PROCEEDINGS

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, an administrative enforcement hearing was held to consider the allegations by the New York State Department of Environmental Conservation (the "Department") against Patton's Busy Bee Disposal Service, Inc. (the "Respondent"), Alfred Almond Road, Alfred Station, New York 14803.

The Department alleged that the Respondent had stored waste tires in excess of 1,000 tires and had accepted waste, both in violation of 6 NYCRR Part 360, and had failed to comply with a provision of an Order on Consent which required closure of the Respondent's landfill.

The Respondent was served with a Notice of Hearing and Complaint dated January 15, 1991. On February 5, 1991, the Respondent transmitted its Answer to the Department.

The hearing began on April 2, 1991 before Susan J. DuBois, Administrative Law Judge ("ALJ"), at the Department's Region 9 Office in Buffalo. The Department Staff was represented by Annette M. Sansone, Esq., Assistant Regional Attorney, Region 9. The Respondent was represented by J. Timothy Embser, Esq., of the law firm of Embser & Woltag, Wellsville.

At the hearing on April 2, 1991, the Department Staff moved to amend the Complaint to add a reference to an earlier Order on Consent that preceded the one which the Department Staff originally alleged had been violated. This motion was granted.

In April 24, 1991 memorandum to the parties, I required that the parties clarify both the Complaint and the Answer with regard to what the parties meant by "closure" of the landfill or a "closure plan". On May 9, 1991, the Department Staff moved to amend the Complaint to allege that the Respondent had failed to submit the required closure plan, had failed to close its facility in accordance with any approved closure plan, and consequently was subject to the closure requirements of 6 NYCRR 360-2.15. The proposed amendment of the Complaint also alleged that, with certain exceptions, the Respondent had failed to comply with the closure requirements in 6 NYCRR 360-2.15.

On May 9, 1991, I granted the request to amend the Complaint and adjourned the hearing to allow time for the Respondent to submit an Answer to the amended Complaint and for the parties to conduct discovery if necessary. On June 6, 1991, the Respondent submitted an amended Answer.

The hearing continued on July 16, 1991. On that date, the parties requested an adjournment for discussion of a possible settlement of the case.

On May 22, 1992, the Department Staff requested leave to amend the Complaint to add the allegation that the Respondent was in violation of 6 NYCRR Subdivision 360-2.15(i) and two Orders on Consent by failing to conduct required groundwater monitoring. The Respondent did not oppose this request. On June 10, 1992, I granted leave to amend the Complaint to add this allegation. The Respondent did not submit an amended Answer or any response to the amended Complaint.

The hearing remained adjourned following the amendment of the Complaint. The Department Staff requested an adjournment from July 1992 to November 1992, to which the Respondent did not object. In late September 1992, I adjourned the hearing to February 23, 1993 due a schedule conflict with another hearing. The February hearing date was then adjourned since the parties were still attempting to settle the matter.

On April 2, 1993, the Department Staff transmitted a draft stipulation to the Respondent. The transmittal letter which accompanied the draft stated that if the parties could agree to the stipulation, the Department Staff would move to withdraw the allegations which had been corrected by the Respondent and would move for summary judgement on the issue of groundwater monitoring.

On May 10, 1993, I spoke with Ms. Sansone and Mr. Embser in a telephone conference call. Mr. Embser stated that the Respondent had not yet signed the proposed stipulation but he expected that this would occur some time in that week. Ms. Sansone stated that the Department Staff would make a motion for summary judgement regarding the remaining issue. The parties agreed to May 24, 1993 as the deadline for the Department Staff to mail its motion and June 4, 1993 as the deadline for the Respondent to mail its response.

On May 25, 1993, I received a Notice of Motion dated May 20, 1993, in which the Department Staff moved for summary judgement under 6 NYCRR Subdivision 622.9(b) and Rule 3212(e) of the Civil Practice Law and Rules ("CPLR"), requesting that the Respondent be found in violation of ECL Article 27 and 6 NYCRR Part 360 for failing to conduct post-closure maintenance and monitoring at its landfill, imposing an unspecified civil penalty for this violation, and directing the Respondent to maintain and monitor the closed landfill and to submit monitoring reports for a minimum of 30 years from the date of the order. The Notice of Motion also stated that the Department Staff was withdrawing the allegations in paragraphs 3 through 9 of the January 15, 1991 Complaint. Attached with the Notice of Motion was an affidavit of Mary E. McIntosh, Engineering Geologist II.

The Respondent did not submit any response to the May 20, 1993 motion. Neither party submitted the stipulation which was discussed on May 10, 1993. The absence of this document indicates that the Respondent did not sign the proposed stipulation.

The Charges

The original Complaint charged that the Respondent had violated 6 NYCRR Subdivision 360-13.1(a) by storing over one thousand waste tires, had violated 6 NYCRR Subparagraph 360-1.7(a)(1)(aa) [sic, probably 360-1.7(a)(1)(ii)] by accepting unpermitted waste and had violated Order on Consent 87-137 by failing to close its landfill in accordance with an approved closure plan by September 1, 1989. The landfill which is the subject of the Complaint is located in the Town of Alfred, Allegany County.

On the first day of the hearing, the Complaint was amended to add an allegation that the Respondent had also violated Order on Consent 85-55, as revised on June 17, 1987. On May 9, 1991, leave was granted to amend the Complaint to add the allegation that by failing to comply with the Orders on Consent and to close the facility prior to December 31, 1988, the Respondent became subject to the closure requirements of 6 NYCRR Section 360-2.15 and, with certain exceptions, had failed to comply with these requirements. On June 10, 1992, leave was granted to amend the Complaint to add an allegation that the Respondent was in violation of the Orders on Consent and of 6 NYCRR Subdivision 360-2.15(i) by failing to conduct quarterly water quality monitoring.

In the May 20, 1993 Motion, the Department Staff withdrew the allegations that the Respondent had violated the Orders on Consent and Part 360, except for the alleged violation concerning the quarterly water quality monitoring which reads as follows:

"11. Respondent is in violation of Paragraph 8 in Revised Schedule "A" to Order on Consent No. 85-55 and Order on Consent No. 87-137 for failing to conduct required quarterly groundwater monitoring and reporting and is also in violation of 6 NYCRR 360-2.15(i) which requires quarterly groundwater, surface water and leachate monitoring for a minimum of five years."

The Answer

On February 5, 1991, the Respondent submitted an answer to the initial Complaint. This answer admitted the allegation which identified the subjects covered by ECL Article 27 and the allegation that the Respondent owns, operates and/or maintains control of the facility in question, but denied the remaining allegations. On June 6, 1991, the Respondent submitted an supplemental Answer which also stated as an affirmative defense that the landfill had been capped in a manner that meets or exceeds the Department's regulations and that a complete report of the closure was made to the Department and closure plans were submitted on specified dates. The Respondent admitted that the seeding was done after the date ordered for closure but stated that there were valid reasons for the late seeding and that the requested penalty was not warranted. The Respondent further stated that the Respondent had filed Chapter 11 Bankruptcy on November 11, 1990.

The Respondent did not answer the June 10, 1992 amendment of the Complaint which alleged failure to submit quarterly water test results nor the May 20, 1993 Motion.

Relief Sought

The initial Complaint sought a civil penalty of $25,000, an Order directing Respondent to cease acceptance and disposal of waste at the landfill, an Order directing Respondent to remove waste materials, and an Order directing Respondent to maintain and monitor the landfill and to submit monitoring reports for a minimum of 30 years from closure.

The May 20, 1993 Motion, in which the allegations were limited to Paragraph 11 of the Complaint (water quality monitoring) requested a civil penalty but did not specify any requested amount. The Motion also requested an Order directing the Respondent to maintain and monitor the closed landfill and to submit monitoring reports for a minimum of 30 years from the date of the Order.

Official Notice

Official notice was taken of the following Department guidance documents:

  1. Civil Penalty Policy, Enforcement Directive No. II, issued on June 20, 1990.
  2. Closure of Active Solid Waste Landfills, Enforcement Directive No. II. 14, issued on September 17, 1984 and revised on December 29, 1988.
  3. Construction and Demolition Debris Landfill Enforcement Guidance Memorandum, Enforcement Directive No. II. 22, issued on February 15, 1989.

FINDINGS OF FACT

  1. Patton's Busy Bee Disposal Service, Inc. (the "Respondent"), Alfred Almond Road, Alfred Station, New York 14803, operated and maintains control of a disposal service located off of Route 21 near Almond, New York. The Respondent also operated and maintains control of a solid waste management facility located in the Town of Alfred, Allegany County (the "Site").
  2. On January 6, 1986, the Respondent entered into an Order on Consent with the New York State Department of Environmental Conservation (the "Department") which included a schedule of compliance designated as "Schedule A". Schedule A was modified by the Respondent and the Department on October 1, 1986 and on June 17, 1987. Revised Schedule A, as modified on June 17, 1987, required that the Respondent, among other things, "Continue the quarterly monitoring of the existing wells and the new wells in accordance with the approved monitoring plans and forward same to addresses listed in Item #5 [DEC Regional Solid Waste Engineer and the Alfred Town Board]."
  3. The Respondent entered into an additional Order on Consent (No. 87-137) which was signed by the Region 9 Regional Director on November 12, 1987. This additional Order on Consent also required compliance with Schedule A of Order on Consent No. 85-55.
  4. The Respondent failed to submit quarterly monitoring reports for the second and third quarters of 1991, for the four quarters of 1992, and for the first quarter of 1993.
  5. The groundwater monitoring results submitted from 1987 to 1991 indicate that the groundwater at the Site is contaminated by volatile organic chemicals including trichloroethylene and trans-1,2-dichloroethylene in both the shallow and deep wells on the western and southwestern sides of the facility.

DISCUSSION

The Respondent did not contest the allegation regarding the failure to submit quarterly monitoring reports, neither by denying the allegation nor by responding to the May 20, 1993 motion for summary order. Although the Respondent appeared and participated at the hearing dates which occurred in 1991, it is in default with regard to the one alleged violation which is still pending.

There is no disputed issue of fact between the parties regarding the failure to submit quarterly monitoring reports. The record demonstrates that the Respondent violated the Orders on Consent by failing to submit groundwater monitoring results for seven sampling dates in 1991, 1992 and 1993.

The allegation, as quoted in the "Charges" section above, also alleges a violation of 6 NYCRR Subdivision 360-2.15(i) "which requires quarterly groundwater, surface water and leachate monitoring for a minimum of five years." The affidavit which accompanied the motion for summary order does not mention surface water or leachate sampling, nor whether or not such sampling results were submitted. For the Respondent to be subject to 6 NYCRR Subdivision 360-2.15(i), which became effective on December 31, 1988, the Respondent would have to have been in violation of the solid waste management facility regulations in effect on December 30, 1988 or an order which was in effect on that date. The charges regarding the other alleged violations (paragraphs 3 through 9 of the Complaint) have been withdrawn by the Department Staff and the testimony regarding these charges was not completed. Thus, it is not clear that the requirements of 6 NYCRR Subdivision 360-2.15(i) apply to the Respondent's facility.

The Notice of Motion requested, among other relief, that the Respondent be ordered to maintain and monitor the closed landfill and submit monitoring reports in accordance with 6 NYCRR Part 360 for a minimum of thirty years from the date of the order. The original Complaint made a similar request, except that the monitoring was to be in accordance with an approved closure plan. The Respondent did not contest the Motion for Summary Judgement.

The Department has authority to order this monitoring, in view of the Respondent's violation of the Orders on Consent and the affidavit's statement that the groundwater at the site is contaminated, which statement also was not challenged by the Respondent. ECL Section 71-2727 authorizes the Commissioner, after investigation, notice and an opportunity to be heard, to "issue, modify and revoke orders prohibiting violations of any of the provisions of article 27 or 71 or of any rule or regulation promulgated pursuant thereto and requiring the taking of such remedial measures as may be necessary or appropriate." While monitoring by itself would not remediate contamination, it is necessary in order to detect contamination so that it could be remediated. The duration of the monitoring would be consistent with the thirty year post-closure monitoring period required for landfills under the present version of 6 NYCRR Paragraph 360-2.15(i)(4).

The Motion also requests that the Commissioner impose a civil penalty for the violation, but does not specify any amount of the requested penalty nor any rationale as to how the penalty would be calculated. The penalty request in the Complaint was not amended during the course of the hearing. The original Complaint requested a penalty of $25,000, but that was for the allegations alleged in the original Complaint, all of which have been withdrawn in the May 20, 1993 Notice of Motion. The Department Staff's May 22, 1992 letter which proposed that the Complaint be amended only proposed adding a Paragraph 11 alleging the failure to monitor and report. The May 22, 1992 letter did not propose to amend the requested penalty in connection with the additional allegation.

The Respondents defaulted with regard to the remaining allegation and did not present evidence regarding any mitigating factors.

ECL Section 71-2703 provides that any person who violates an order of the Commissioner made pursuant to ECL Article 27, Title 7 (Solid Waste Management and Resource Recovery Facilities) shall be liable for a civil penalty not to exceed $2,500. The Respondents failure to submit monitoring reports for seven time periods constitutes seven violations of the Orders on Consent, making the Respondent liable for a total penalty of up to $17,500.

These violations were violations of two Orders on Consent. The latter Order on Consent (87-137) was issued due to the Respondent's violation of the earlier Order on Consent (85-55). A substantial penalty would be appropriate for these violations.

CONCLUSIONS

  1. The Respondent violated Order on Consent 85-55 and Order on Consent 87-137, both of which were issued pursuant to ECL Article 27, Title 7 and 6 NYCRR Part 360, on seven occasions by failing to submit quarterly monitoring reports.

RECOMMENDATIONS

I recommend that the Respondent be found in violation of Order on Consent 85-55 and Order on Consent 87-137 and that the Respondent be ordered to maintain and monitor the closed landfill and submit monitoring reports in accordance with 6 NYCRR Part 360 for thirty years from the date of the Order which would be issued in the present hearing.

I further recommend that a civil penalty not to exceed $17,500 be imposed upon the Respondent.

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