Republic Environmental Systems (New York), Inc. - Interim Decision and Order, December 29, 1993
Interim Decision and Order, December 29, 1993
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
- of -
a Motion for a Summary Order under the Environmental Conservation Law to Revoke the Permit and Terminate the Authority to Operate a Hazardous Waste Management Facility held
- by -
REPUBLIC ENVIRONMENTAL SYSTEMS (NEW YORK), INC.
INTERIM DECISION and ORDER
- This proceeding was brought by a motion for summary order pursuant to 6 NYCRR 622.10 before Administrative Law Judge ("ALJ") Andrew S. Pearlstein.
- The attached report prepared by ALJ Pearlstein is adopted as my Interim Decision in this matter.
- As stated in the report, there are no facts in dispute relating to Respondent's liability on all charges except the alleged violation of 6 NYCRR 211.2, and the exact number of wastewater discharge accedences. Therefore I find that Respondent has committed the following violations:
- Violating conditions in its Part 360 extended permit with respect to number of drums stored, storing prohibited wastes, storing sodium hydroxide sludge, accepting prohibited wastes, and form of quarterly reports;
- Having peeling and cracks in secondary containment barriers, in violation of 6 NYCRR 373-3.10(d)(5)(i)(c);
- Failing to properly label hazardous waste tanks in violation of 6 NYCRR 373-3.10(e)(4);
- Mixing incompatible wastes in an incompletely decontaminated tank in violation of 6 NYCRR 373-3.10(j)(1) and (2); and
- Discharging wastewater into the Nassau County sewage system that exceeded parameters in Respondent's Industrial Discharge Permit.
- There are triable issues of fact relating to the considerations that affect the relief that should be granted for the violations that Respondent has been found to have committed.
- The record should be further developed on whether the record of compliance of Respondent's sister companies in other jurisdictions provides a basis for the relief sought.
- The existence of a triable issue of fact relating to penalties and relief does not bar the granting of a summary order when issues concerning relief are still outstanding (6 NYCRR 622.10[e]).
NOW, THEREFORE, have considered this matter, it is ORDERED that:
- This proceeding is remanded to ALJ Pearlstein to conduct an adjudicatory hearing on Respondent's liability for violations of 6 NYCRR 211.2; the number of violations of Respondent's wastewater discharge permit limits; the appropriate civil penalty to be imposed on Respondent for all violations found; and whether Respondent's permit to operate a hazardous waste management facility should be revoked.
For the New York State Department
of Environmental Conservation
By: LANGDON MARSH,
Albany, New York
Dated: December 29, 1993
TO: Michael B. Gerrard, Esq.
Berle, Kass & Case
45 Rockefeller Plaza
New York, New York 10111
Deborah W. Christian, Esq.
NYSDEC Central Office
50 Wolf Road
Albany, New York 12233-5500
Carl Dworkin, Esq.
NYSDEC Central Office
50 Wolf Road
Albany, New York 12233-5500
Joseph Sferrazza, Esq.
Morton, Weber & Associates
201 North Service Road
Melville, New York 11747
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
- of -
Motion for a Summary Order under the Environmental Conservation Law to Revoke the Permit and Terminate the Authority to Operate a Hazardous Waste Management Facility held
- by -
REPUBLIC ENVIRONMENTAL SYSTEMS (NEW YORK), INC.
RULINGS OF ADMINISTRATIVE LAW JUDGE
DEC Index No.C1-1949-93-06
The Central Office and Region 1 Staff of the New York State Department of Environmental Conservation (the "Department Staff") served a Motion for a Summary Order on Republic Environmental Systems (New York), Inc. (the "Respondent" or "RESNY") on July 19, 1993 pursuant to 6 NYCRR 622.10. The motion seeks an order revoking the Respondent's permit to operate its hazardous waste management facility located at 340 Eastern Parkway, Farmingdale, New York, and imposing a civil penalty of $350,000. The motion was filed by Deborah W. Christian, Esq., Associate Attorney, and Carl G. Dworkin, Esq., Principal Administrative Litigator, both of the Department's Central Office in Albany. The Department Staff's motion was supported by several affidavits with exhibits submitted by engineers and other officials from the Department's Central Office and Region 1, and from the Nassau County Departments of Health and Public Works.
The Respondent, by its attorney Michael B. Gerrard, Esq., of the firm Berle, Kass & Case, New York City, filed its initial Answer on August 9, 1993. Pursuant to a schedule agreed upon by the parties, the Respondent submitted its supporting affidavits and exhibits, and a memorandum of law, in response to the motion on August 27, 1993. Respondent's full submission in response to the motion consisted of affidavits by a Vice President of RESNY, by Mr. Gerrard, and by two technical consultants retained by the Respondent. Respondent submitted voluminous exhibits with its response, including copies of extensive correspondence between Staff and Respondent, facility records, consultant's reports, and legal documents.
Summary of Charges and Relief Sought
The Department Staff alleges that the Respondent and its predecessor, Chemical Management, Inc. ("CMI") have repeatedly violated the terms of their permit #30-Z-01 to operate a hazardous waste management facility at 340 Eastern Parkway, Farmingdale, New York, and have violated various laws, rules and regulations applicable to that facility. Staff also contends that the Respondent's record of compliance, both at the Farmingdale facility and that of related companies in other jurisdictions, is so poor as to render it unfit to retain its permit under ECL 27-0913 and the Commissioner's Record of Compliance policy. Staff further alleges that in light of this compliance history and in view of the facility's location in close proximity to neighboring residences, the continued operation of the facility poses undue risks, and Respondent's permit to operate the facility should be revoked.
The alleged violations can be grouped as follows: (1) accedences of permit limitations on the number of drums and types of waste materials; (2) submitting incomplete quarterly summary reports of operations that do not include all the information required by the permit; (3) tanks cracked, peeling, and unmarked, in violation of 6 NYCRR 373-3.10(d)(5)(i)(c) and 373-3.10(e)(4); (4) releases of chlorine gas and odors into the surrounding community in violation of 6 NYCRR 211.2; (5) violations of the facility's Industrial Discharge Permit and concerning pretreatment of effluent discharged into the Nassau County sewer system; and (6) conducting unauthorized trucking activity at the facility contrary to an agreement between the Respondent and Nassau County.
Staff cites several particular incidents as illustrative of the Respondent's unsuitability to retain its permit to operate a hazardous waste management facility. Staff alleges that on January 30, 1992 Respondent improperly mixed incompatible materials in a tank in violation of 6 NYCRR 373-3.2(h)(2) and 373-3.10(j)(1,2), resulting in the release of chlorine gas into the neighborhood. Another notable odor release is alleged to have occurred on July 6, 1992. Staff also particularly cites the improper release of a purple colored effluent from one of Respondent's tanks into the Nassau County sewer system on May 12-13, 1993. Respondent's facility has been closed since that date.
In this motion, staff seeks issuance of a summary order that revokes Respondent's permit #30-Z-01 to operate its hazardous waste management facility in Farmingdale, and imposes a $350,000 civil penalty on Respondent. As part of this relief, Staff seeks permanent closure of this facility, with a prohibition against Respondent's transferring any right to operate a hazardous waste management facility at the Farmingdale site. Staff also seeks an order denying Respondent's pending application under 6 NYCRR Part 373 for a permit to operate a hazardous waste management facility at this site.
Summary of Respondent's Position
Respondent admits that certain violations have occurred at the RESNY facility in Farmingdale and in Respondent's sister companies' operations in other jurisdictions, but contends that they do not justify closing the facility or the imposition of the civil penalty sought by Staff. Respondent alleges that the Department Staff is improperly basing this motion on pressure from the Town of Oyster Bay and local residents who want the facility closed down. Respondent also argues that closing the RESNY facility would reduce the State's already limited capacity to manage its hazardous wastes. This would be contrary to the statewide Capacity Assurance Plan and would cause adverse economic impacts and increased risks associated with illegal dumping and waste transport.
Respondent does not deny the basic facts alleged for most of the specific incidents and violations charged in the Department Staff's motion, but cites various circumstances as factors mitigating the seriousness of each violation. Respondent does deny that it is the source of many of the odor complaints in the neighborhood, and claims many of the alleged sewage discharge violations are due to sampling errors. The facts and mitigating factors surrounding each alleged violation are addressed fully in the following sections of this report.
Respondent does not dispute the occurrences of the specific incidents at the facility cited by Staff as indicative of its unsuitability. However, Respondent points out that in each case, no adverse health or environmental effects resulted, RESNY promptly took steps to investigate and report on the incidents, and took appropriate corrective action.
Respondent disputes the extent and seriousness of the alleged violations at Respondent's sister subsidiaries of Republic Environmental Systems, Inc. in other jurisdictions cited by Staff as a basis for revoking RESNY's permit. Respondent asserts that those violations were generally minor, without any environmental risk or impacts, and the result of either inconsistent regulation or improper conduct by other entities.
As indicated above, Respondent contends that it is being improperly singled out due to pressure from the Town of Oyster Bay, and that it is being treated unfairly compared to other hazardous waste management facilities. Therefore, Respondent asks that Staff's motion for a summary order, permit revocation, and a $350,000 civil penalty be denied. Respondent urges instead that Staff be ordered to reopen negotiations on a 1992 draft consent decree that was never executed between the parties. The Respondent contends that it has shown facts concerning the various mitigating circumstances surrounding its compliance history sufficient to merit a hearing before granting the drastic relief sought by the Department Staff in this proceeding.
FINDINGS OF UNDISPUTED FACT
Facility Description and Permitting Status
- The Respondent, Republic Environmental Systems (New York), Inc. ("RESNY"), operates a hazardous waste management facility at 340 Eastern Parkway, Farmingdale, in the Town of Oyster Bay, Nassau County, New York. Respondent's predecessor, Chemical Management, Inc. ("CMI") began using the facility at this site for the commercial chemical treatment of hazardous wastes in 1980. Stout Environmental purchased the facility in 1988. RESNY's parent company, Republic Environmental Systems, Inc. ("RESI") acquired the facility in 1992.
- RESNY's operations consist of aqueous waste water treatment processes in tanks, including oil water separation, chemical neutralization, metal precipitation, and solids filtration and stabilization. The solid and liquid hazardous waste residues are then stored in drums for transfer to other facilities for further treatment or disposal. The facility discharges an average of about 100,000 gallons of treated waste water per month into the Nassau County sewer system. Treatment off-gases are collected and sent through a scrubber emission control system before venting from a 150-foot stack.
- The RESNY facility in Farmingdale consists of two main buildings on a site zoned for industrial use. The area immediately north and east of the site, in the Town of Babylon, Suffolk County, is primarily industrial. Immediately west and south of the facility are residential areas in the Town of Oyster Bay. The nearest residences are single-family houses immediately adjacent to the Respondent's site. The site location and surrounding area are shown on a map attached to this report as Appendix A.
- CMI's operations at the facility were authorized by permit #30-Z-01, issued by the Department Staff on October 24, 1980 under the 6 NYCRR Part 360 regulations then in effect governing hazardous waste management facilities. After adoption in 1985 of the new hazardous waste regulations (6 NYCRR Parts 370-373), CMI submitted an application pursuant to Part 373 before its Part 360 permit expired. The Department Staff has been reviewing Respondent's Part 373 application (to which it succeeded from CMI), and Respondent has supplemented it when requested by Staff, but Staff has not yet finally acted upon it. Hence Respondent has continued to operate its facility under the extended Part 360 permit pursuant to the State Administrative Procedure Act 401(2), while its Part 373 permit is pending. The Respondent also holds air emission permits, and an Industrial Discharge Permit for discharge of treated effluent into the Nassau County sewer system, both granted by Nassau County under its authority delegated from the Department.
- Before the United States Environmental Protection Agency ("EPA") delegated administration of New York State's hazardous waste management program to the Department, the EPA inspected the RESNY facility for compliance with the interim status standards. The Part 373 standards, promulgated in 1985, however, prohibit any commercial facilities in Nassau County from being granted interim status (6 NYCRR 373-1.3[b]). Instead, on the effective date of the new Part 373, holders of Part 360 hazardous waste permits were deemed to have valid Part 373 permits and are bound to comply with the interim status requirements of Subparts 373-1 and 373-3 (6 NYCRR 373-1.2[d][Note]). Since Respondent's Part 373 permit application has been pending, the Respondent has agreed with the Department Staff to operate in accordance with the Part 373 standards.
- The Department Staff as well as officials from the Nassau County Departments of Health and Public Works have frequently inspected Respondent's facility, exchanged correspondence, and met with Respondent's managers throughout this entire period. The Department Staff has inspected Respondent's facility at least nine times since 1985. This agency oversight has led RESNY (and its predecessor CMI) to execute a series of consent orders and stipulations with the Department and Nassau County during the past three years, briefly described in the following paragraphs.
- On July 18, 1991 the Department Staff and Respondent executed a Consent Order (#R1-4204-90-08) in an enforcement action based on alleged violations of 6 NYCRR Part 211 governing air emissions. Staff alleged Respondent had operated an air contamination source without a certificate to operate, had failed to submit requested information, and emitted air contaminants that unreasonably interfered with the life and property of neighboring residents. The Consent Order imposed a $40,000 civil penalty ($25,000 payable and $15,000 suspended) and required Respondent to follow a compliance schedule for the purchase and installation of appropriate emission control equipment.
- In response to the release of chlorine gas from the facility on January 30, 1992 (further described below), the Respondent executed a Stipulation with the Nassau County Department of Health ("NCDH") on February 11, 1992. The Department and Nassau County have entered into an agreement in which the NCDH is delegated the primary duties to administer the State's air emission control program. This Stipulation conditioned Respondent's continued operations on the presence of an on-site environmental monitor, and imposed some additional restrictions on Respondent's hours of operation and trucking activities on the site. The Department Staff participated in the negotiation of this Stipulation as well.
- An odor release from the facility on July 6, 1992 resulted in the execution of an Amendment to the February 11, 1992 Stipulation, dated July 7, 1992. The Amendment expanded the power of the on-site environmental monitors and the NCDH to approve requests to treat particular waste streams and use particular treatment processes at the facility. Respondent was also required to conduct an environmental survey of the facility to determine all sources of odor, and then to promptly abate all identified sources of odor. The Stipulation Amendment further authorized the on-site monitor or the NCDH to order the Respondent's facility shut down whenever a nuisance air emission or other condition is detected or found to be imminent.
- The Respondent, Department Staff and NCDH engaged in lengthy negotiations throughout the first half of 1992 with the goal of reaching a comprehensive consent decree on the future of the facility. These negotiations culminated in the production of a draft Order on Consent dated August 24, 1992. This Draft Consent Order assessed a $150,000 civil penalty and required Respondent to close its Farmingdale facility by December 31, 1996, while imposing a series of operational conditions and restrictions during the interim period until closure.
- The Draft Consent Order was never executed, however. In November, 1992, before the Department Staff rendered its final approval of the Order, the Town of Oyster Bay sued the Respondent, alleging zoning violations and seeking an injunction to close the facility. The uncertainty created by the lawsuit led the Respondent to hesitate signing the Consent Order unless provisions were added to account for the potential it could not comply due to the Town's actions. Then a sewage discharge incident on May 13, 1993 (described further below) led the Department Staff to withdraw its approval of the Draft Consent Order.
- Treatment operations at the RESNY Farmingdale facility have been closed since the May 13, 1993 sewer discharge incident. The RESNY facility is one of only two commercial general hazardous waste treatment facilities in New York south of Albany, although there are several other storage facilities and smaller specialized treatment and metals recovery facilities in that area. The closure of the RESNY facility has had the effect of increasing hazardous waste transport distances from Long Island generators, and has strained the capacity of other treatment facilities in southeast New York.
- RESNY has laid off over 60 workers since January 1992.
Incidents at the Farmingdale Facility
- Storage in Excess of Permit Limits
- Respondent's Part 360 permit #30-Z-01 authorizes it to store a maximum of 150 drums on the site at any one time. The permit allows Respondent to accept only the following wastes: acid and caustic solutions, heavy metal liquids and sludges, halogenated and non-halogenated solvents, waste oils and oil/water emulsions or mixtures. The permit specifically prohibits the receipt of wastes containing PCB's, mercury, pesticides, or cyanide concentrations of greater than 156 ppm.
- Respondent stored more than 150 drums and stored prohibited wastes on seven occasions when inspected by the Department Staff between March 12, 1987 and February 12, 1992. Attached to this Report as Appendix B is a table giving the dates with the total number of drums and prohibited wastes stored on each of those occasions.
- Respondent also accepted three shipments of solid hazardous waste, which are not authorized by its permit, on the following dates: April 28, 1993 (400 pounds of waste oxidizer and 800 pounds of waste sodium hydroxide solid); and May 17, 1993 (935 pounds of waste corrosive solid).
- Respondent's permit also authorizes it to store a maximum of 50 cubic yards of metal hydroxide sludge at the facility at any one time. Respondent exceeded this limitation on five inspections from 1984 to 1992, by storing from 60 to 102 cubic yards of metal hydroxide sludge on those occasions.
- The Department Staff generally followed its regular practice of sending Respondent written notice of each of its inspections during this period, listing the violations found. CMI/RESNY then generally responded within 30 days to certify and document that the violations were corrected. Although Staff notified Respondent of numerous other violations of the hazardous waste regulations found during these inspections, Staff never notified or warned Respondent of any of the above described violations of its permit limitations and prohibitions on drum and waste storage, until this proceeding.
- Since 1992, the environmental monitor on site was aware of all waste receipts and did not object to any.
- The amounts and waste types that exceeded Respondent's Part 360 permit limitations were within the limits in Respondent's pending Part 373 permit application.
- Quarterly Reports
- Respondent's Part 360 permit #30-Z-01 requires Respondent to keep records of all wastes received, their treatment, and disposition. Quarterly summary reports of this information are required to be sent to the Department Staff. Permit condition No. 5 states that such quarterly reports "will state by volume and container the total material on hand both waste and processed on the close of the last business day of the quarter."
- CMI and RESNY have submitted regular quarterly reports to the Department Staff. These reports did summarize incoming and outgoing shipments, but did not include summaries of waste on site. On-site waste inventories could be calculated from the shipment summary information. Pursuant to the stipulation of February 11, 1992, the on-site monitor has further submitted monthly waste inventory reports to the Department Staff since that date. Staff has not asked the Respondent for waste inventory summaries or complained about the lack of waste inventory summary information in the quarterly reports until this proceeding.
- Secondary Containment and Tank Labelling
- On the occasion of a Department Staff inspection of Respondent's facility on February 5, 1992, several of the facility's tanks' secondary containment barriers exhibited surface cracks and peeling in their impervious coating. The underlying concrete was not damaged. Respondent promptly corrected these defects after the inspection.
- Also on February 5, 1992, several of Respondent's tanks were not labelled with the words "Hazardous Waste." Respondent promptly placed such labels on those tanks after the inspection.
- Air Emissions
- The Respondent's facility intermittently emits odors or gases that are detected in the surrounding community. Across the street from Respondent, at 361 Eastern Parkway, Farmingdale, is a plastics manufacturing facility, Plascal, Inc., which is the source of more odorous emissions than Respondent's facility.
- Since the Respondent agreed to the Stipulation of February 11, 1992, the environmental monitor has maintained a record of odor complaints telephoned into the RESNY facility. From March 3, 1992 until February 2, 1993, the facility received 132 complaints on 76 separate days. The environmental monitor attributed 38 of those complaints to the RESNY facility.
- Pursuant to the July 18, 1991 Consent Order and the provisions in the unexecuted August 24, 1992 Draft Consent Order, RESNY retained a consultant to evaluate odor sources at the facility and to recommend appropriate emission control systems for installation. Respondent purchased new air control equipment, including new scrubbers and carbon adsorption units, and began installing them in August 1992.
- On September 9, 1992, the Town of Oyster Bay directed that this installation stop because no building permits had been issued. The Town and RESNY then engaged in litigation, still pending, in Supreme Court, Nassau County. The Town alleges RESNY is violating its zoning ordinance. RESNY has filed an Article 78 proceeding seeking an order directing the Town to issue the building permits for the installation of the air pollution control equipment and for the construction of indoor truck pits. The Town's actions have prevented RESNY from completing the installation of the air emissions control systems and the indoor truck pits.
- On January 30, 1992, an incident occurred at the RESNY facility in which chlorine gas was released into the surrounding area. Workers mistakenly began treatment processes with sodium hypochlorite in a tank that had been incompletely decontaminated and still contained sulfuric acid at the bottom. The mixing of these two incompatible waste compounds caused the emission of a chlorine gas cloud. The release through the stack was exacerbated by an employee's mistaken decision to turn off the scrubber. One RESNY employee was overcome by chlorine gas and hospitalized, and several nearby residents were evacuated.
- Odor incidents that led to temporary closure of the facility under the terms of the Stipulation also occurred on the following dates: July 6, 1992; September 24, 1992; and November 18, 1992. As indicated above in Finding of Fact #26, other confirmed odor incidents occurred at the facility during this period, but the odors generally dissipated rapidly enough or were halted soon enough to avoid having to close the facility.
- Sewer Discharges
- RESNY has been designated a significant industrial user of the Nassau County sewer system and has an Industrial Discharge Permit (#44) granted by the Nassau County Department of Public Works under the Federal Clean Water Act. The discharge permit requires RESNY to properly operate its pretreatment facilities to meet its specific discharge limits for various parameters, and to comply with the Nassau County Sewer Ordinance. The discharge limits set maximum concentrations for such parameters as lead, cadmium, copper, silver and other metals; fluoride; cyanide; and pH.
- Sampling by the County Department of Public Works has detected 48 accedences of Respondent's permit discharge limits for specific parameters from January 1986 to May 13, 1993. A single self-monitoring report submitted by Respondent in January 1992 indicated an additional 24 accedences. The discharge limits most frequently exceeded were those for lead, fluoride, and cadmium. During this period, the County sent Respondent five notices of violation for accedences; seven warning letters for accedences; and four warning letters, all in 1988, for late reports.
- When the County found these accedences, it took its samples from the Respondent's effluent tank at various times, not necessarily shortly before the effluent was discharged. The pH and concentrations of metals in the tank fluctuate over time and sometimes the effluent tank was pumped out for further treatment before discharge. In the January 1992 self-monitoring report, the Respondent's laboratory director at the time failed to subtract the background levels of the samples from the readings.
- On May 12, 1993 Respondent discharged inadequately treated purple-colored effluent from one of its tanks into the Nassau County sewer system and ultimately to the Cedar Creek treatment plant. Respondent's employees did not sample the effluent immediately before the discharge. Overnight, additional effluent from that tank continued to discharge into the sewers through an obstructed valve that inadvertently remained partly open. This effluent, as sampled in the remaining residue in the tank, exceeded Respondent's permit limits for the following parameters: color; pH; nickel; cadmium; chromium; copper; iron; lead; and zinc. Under the terms of the Stipulation, the Nassau County Department of Health has kept Respondent's wastewater treatment operations closed since this incident.
- Respondent produced a full report of this incident on May 28, 1993. Respondent terminated its General Manager and another employee in charge at the time who were responsible for this discharge. RESNY also installed an additional safety valve and strainers in the discharge lines to prevent valve malfunctions, and instituted some management procedures to better monitor its discharges in the future.
- Truck Activity
- On May 20, 1993, Respondent's General Manager sent a memo to the County stating that no operations were planned for the morning of May 24 due to a company meeting, and that the environmental monitor need not report on duty until 11:30 A.M. that day. The General Manager was fired during the company meeting that morning. On the morning of May 24, 1993 one truck came to Respondent's staging area where its contents were sampled.
- Respondent has been unable to establish an off-site truck staging area at a nearby location due to the Town of Babylon's allegations that Respondent's use of that site violated the Town's zoning ordinance.
Compliance History at Other Facilities
- Republic Waste Industries, Inc. is the parent corporation of an environmental and waste management industry conglomerate that encompasses some 35 subsidiary companies with operations throughout much of the United States and Canada. RESNY, formerly CMI, is one of 9 subsidiaries of Republic Environmental Systems, Inc. ("RESI"), formerly Stout Environmental Systems, Inc. Those 9 RESI subsidiaries include Republic Environmental Systems (Pennsylvania), Inc. ("RESPA"), formerly Waste Conversion, Inc. ("WCI"); Republic Environmental Systems (Ohio), Inc. ("RESOH"), formerly Ecolotec; and Keystone Chemical Company, Inc. ("Keystone"). A copy of a corporate structure chart for Republic Waste Industries is attached to this Report as Appendix C.
- On June 3, 1992, RESPA's predecessor, WCI, entered into a Consent Order and Agreement with the Pennsylvania Department of Natural Resources ("PADER") for violations at WCI's Hatfield, Pennsylvania facility dating back to 1986. Under this agreement WCI was assessed a $1 million civil penalty, a $90,000 criminal penalty, and $10,000 for reimbursement of costs to the state. The main violations involved the treatment and disposal of hazardous wastes as non-hazardous wastes. On November 7, 1988, during the activities that gave rise to this enforcement proceeding, PADER proceeded to issue WCI its Part B permit to operate its hazardous waste management facility at Hatfield, which remains in operation under that permit.
- On January 5, 1989, WCI was fined $10,000 for a misdemeanor arising from the dumping of processed non-hazardous waste along a road in Pennsylvania by an independent trucking company hired to transport the waste from WCI to a disposal facility.
- On November 13, 1991 the New Jersey Department of Environmental and Energy ("NJDEPE") imposed a civil penalty of $262,500 on WCI for manifesting and transporting hazardous waste to a disposal site erroneously as non-hazardous waste. In 1988 the NJDEPE initially issued an order assessing a $3 million penalty and revoking WCI's hazardous waste transporter license. After a hearing a New Jersey Administrative Law Judge recommended the penalty be reduced to $43,500 and that WCI's transporter license be restored. On June 3, 1993 the Superior Court of New Jersey affirmed the Commissioner's final decision which adopted most of the ALJ's recommendations, but which raised the penalty to $262,500. WCI is pursuing an appeal.
- In 1988-90 the States of Maine, New Hampshire and Missouri initially denied WCI renewals of its hazardous waste transporter permits in those states, citing the New Jersey proceedings. After resolution of the New Jersey proceeding, those states restored WCI's (or its RESI successors') transporter permits. Similarly, the United States Department of Defense barred WCI from federal defense contracts, but lifted the debarment order after resolution of the New Jersey proceeding.
- WCI paid a $10,000 penalty in 1986 in Pennsylvania for waste transport violations involving improper manifesting and record-keeping.
- WCI has paid a total of $7700 in 15 consent orders for transporter violations in New York between 1985 and 1991. Two violations, for a total penalty of $4500, were for hauling waste without a permit. One violation, assessed at $250, was for using a non-specified container. The remaining 12 violations, each assessed at $200 or $250, were for failing to properly display permit numbers on the side of the truck.
- The Ecolotec facility in Dayton, Ohio, now RESOH, was cited for 32 violations from 1988 to 1992. The State of Ohio issued that facility a Part B permit in October 1990.
- In November 1988 Keystone entered into a Consent Order with PADER requiring closure of its facility in Butler Township, Pennsylvania. The Consent Order required Keystone to submit a bond in the amount of $935,255.29 to secure closure of a landfill impoundment at that facility.
- The 1988 Keystone Consent Order also imposed a $122,000 civil penalty on Keystone for the release of mercaptans fumes from the facility, which affected the surrounding neighborhood. The fumes incident also resulted in Keystone's criminal conviction for creating a nuisance, payment of a $2000 fine, and the company's placement on two years' probation.
- In October 1986 Keystone entered into a Consent Agreement with the U.S. Environmental Protection Agency for inadequate groundwater monitoring at the Butler facility. Keystone paid a $5500 penalty for these violations.
- RESNY's current Vice-President, Mark Alsentzer, formerly also held managerial positions at WCI and Keystone in Pennsylvania, and at Ecolotec in Ohio. Several other managerial employees of RESI have worked at various times for the RESNY at the Farmingdale facility, and at other RESI subsidiaries.
This motion for a summary order is authorized by 6 NYCRR 622.10 which is based on the motion for summary judgment provided in the CPLR 3211. "The motion for summary order shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established to warrant the granting of summary judgment under the CPLR in favor of any party." 6 NYCRR 622.10(c). "The motion shall be denied if any party shall show facts sufficient to require a hearing of any issue of fact." 6 NYCRR 622.10(d). Partial summary judgment may be granted on one or more separate causes of action. Even if summary judgment is not granted, the ALJ may issue an order establishing undisputed facts for all purposes in the action. Further, "[t]he existence of a triable issue of fact as to the amount of civil penalties which should be imposed shall not bar the granting of a motion for a summary order." 6 NYCRR 622.10(e). In that circumstance, "the hearing officer shall convene an immediate hearing to assess the amount of civil penalties which should be recommended to the commissioner."
The determination whether to grant summary judgment is always sui generis, dependent on the particular facts presented in each case. However the numerous reported cases establish some general guidelines. Summary judgment is a drastic remedy that deprives a litigant of his day in court, and should only be employed when there is no doubt as to the absence of triable issues. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). However, a shadowy semblance of an issue, or bald conclusory assertions, even if believable, are not enough to defeat the motion. Metropolitan Bank of Syracuse v. Hall, 52 A.D.2d 1084, 384 N.Y.S.2d 305 (1976).
Both the party seeking summary judgment and the party opposing it must submit supporting affidavits by persons with knowledge of the facts. CPLR 3212(b); S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974). The court will accept as true on a summary judgment motion the opposing party's evidence and any evidence of the movant that favors the opposing party. Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (1964). But facts alleged by the movant not controverted by the opponent may be assumed to be true. John William Costello Associates, Inc. v. Standard Metals Corp., 99 A.D.2d 227, 472 N.Y.S.2d 325 (1984). The judge must examine the parties submissions with the goal of finding issues, not determining them. Sillman v. Twentieth Century Fox F. Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957). If no material issue of fact is presented, summary judgment is appropriate to decide issues of law. Marinas of the Future, Inc. v. City of New York, 87 A.D.2d 270, 450 N.Y.S.2d 839 (1982).
Overview of Rulings
This motion for a summary order was difficult to analyze since the motion document itself did not specify the charged violations and does not expressly seek a decision finding the Respondent liable for particular violations. The specific alleged violations may, however, be gleaned from the Department Staff's affidavits submitted in support of the motion.
The affidavits allege that Respondent committed certain acts that constitute violations of its permit conditions and of cited applicable regulations at its Farmingdale facility. The Respondent generally does not deny that the events comprising those violations occurred, but stresses various mitigating factors and the broader context in which they occurred. These differing perspectives apply as well to the record of compliance of Respondent's sister companies at other facilities. The Findings of Fact set forth above are undisputed based upon an examination of the statements in the parties' affidavits that are uncontradicted by the opposing party. The chief issue is not liability or the occurrence of certain violations, but the relief sought: the amount of civil penalties and whether Respondent's permit should be revoked.
The existence of triable issues of fact as to the relief which should be imposed shall not bar the granting of a motion for a summary order. In this proceeding, most of the material disputed facts concern potential mitigating circumstances or the broader context of the violations Respondent committed at Farmingdale, and that Respondent's sister companies committed at other facilities. There are few triable issues of fact as to whether the Respondent committed the cited violations at the Farmingdale facility, or over the record of compliance of the other RESI subsidiaries. Therefore this ruling grants partial summary judgment to the extent of finding that RESNY committed certain violations. However, on this motion for summary judgment, the issue of the appropriate relief to be imposed remains open for resolution by adjudication. The only major liability issue that remains unresolved is whether Respondent's air emissions constituted a violation of 6 NYCRR 211.2.
The Department Staff's affidavits all follow a similar pattern. The facts comprising the violations are set forth, followed by a conclusion that Respondent should not be allowed to continue hazardous waste operations at its Farmingdale facility. The Department Staff bases this conclusion on its "professional judgment" that the facility poses a "significant risk to the public health and welfare" in the surrounding neighborhood. While there have been a large number of violations at Respondent's facility, only two (the January 30, 1992 chlorine gas release, and the May 12-13, 1993 sewage discharge) appear to have had any serious potential to cause environmental harm. On a motion for summary judgment, especially in light of Respondent's largely undisputed recitation of mitigating factors, Staff's affidavits are not sufficient to support the drastic relief sought. Therefore these rulings recommend that an adjudicatory hearing be held on the appropriate relief to be ordered against Respondent and on the remaining liability issues unresolved on this motion.
The discussion below will address each of the specific categories of violations or bases for the relief sought alleged by Staff in its motion.
Part 360 Permit Violations
The facts surrounding the Respondent's permit status are undisputed. CMI had a Part 360 hazardous waste management permit for its Farmingdale facility. CMI, Respondent's predecessor, then submitted a timely and sufficient renewal application for a Part 373 permit after that regulation was promulgated, superseding Part 360 in the regulation of the hazardous wastes program. As a commercial facility in Nassau County, Respondent's facility was ineligible for formal interim status under 6 NYCRR 373-1.3(b). However, as the holder of a Part 360 hazardous waste permit, the CMI facility was deemed the holder of a valid Part 373 permit and bound to comply with the interim status requirements of Subparts 373-1 and 373-3 (See 6 NYCRR 373-1.2[d][Note]). In this somewhat confusing state of affairs, the CMI facility was thus technically bound to the conditions and limits in its Part 360 permit and required to comply with the Part 373 interim status standards, while its Part 373 Part B permit application was pending before the Department Staff.
In practice, since 1985 the Department Staff never, until this proceeding, attempted to enforce the Respondent's Part 360 permit limits on the number of drums and types of wastes allowed to be stored at the facility. Staff treated the facility for these purposes as though it had formal interim status -- allowing storage within the limits of its Part 373 application, rather than the obsolete Part 360 permit. This is evident from the numerous inspections conducted by Staff during this period in which numerous technical violations were found, but in which alleged violations of these permit restrictions were never mentioned. In fact it is evident from the affidavit of Mr. Natarajan (see Appendix B) of the Department Staff that the information was readily available on the face of the inspection reports that Respondent was regularly exceeding the 150-drum limitation, and storing wastes prohibited in its Part 360 permit. Those reports, dating back to 1985, were apparently first reviewed to find those violations for the purposes of this proceeding.
Where the Department Staff exhibits an inconsistent change in its enforcement attitude toward a respondent, the ALJ and Commissioner may consider it a mitigating factor in the respondent's favor that could significantly reduce any penalties that may be imposed. (See Matter of Joseph R. Wunderlich, Decision of Commissioner, Sept. 4, 1985). This is especially appropriate here in view of the pervasive regulatory oversight the Department Staff and Nassau County exercised over Respondent, and the EPA's approval of Respondent's compliance with interim status standards.
Therefore, although Respondent committed a series of violations of its Part 360 permit restrictions on number of drums allowed to be stored and in accepting prohibited wastes, any civil penalty to be imposed for these violations will be relatively small. The amount of any such penalty will remain an issue for hearing. These violations do not provide any basis for the relief sought of revocation of Respondent's permit.
Similar reasoning applies to the charge that Respondent submitted inadequate quarterly reports. Staff never complained about them until this proceeding. In any event, this is at most a minor record-keeping violation concerning only the form of the quarterly reports. The amount of any civil penalty to be imposed for this violation remains an issue for hearing.
Secondary Containment and Tank Labelling
As the result of a full RCRA inspection on February 5, 1992, Mr. Natarajan of the Department Staff found two violations at Respondent's facility. The surface coating on parts of the facility's concrete secondary containment barriers was cracked and peeling, in violation of 6 NYCRR 373-3.10(d)(5)(i)(c), which requires that external liner systems be "free of cracks or gaps."
Staff does not dispute the Respondent's Mr. Alsentzer's statement that the underlying concrete was not damaged, and does not provide any other facts indicating that there was any danger of a release. Therefore, the Department's charge that this condition also constituted a violation of 6 NYCRR 373-3.10(d)(2), which requires secondary containment systems to be "designed, installed, and operated to prevent any migration of wastes . . ." should be dismissed.
The second violation found at that inspection was the failure to properly label certain tanks as hazardous waste as required by 6 NYCRR 373-3.10(e)(4). These deficiencies were promptly corrected by the Respondent.
The Department Staff has apparently altered its enforcement attitude with respect to these two minor violations as well. In the ordinary course of inspections and promptly ensuing remedial responses by the Respondent over the preceding 7 years, violations such as these were never the subject of enforcement action. In any event, at most they could give rise only to relatively small penalties and should not form the basis for the revocation of Respondent's permit.
The Department Staff, primarily through the affidavit of Bruce Smith of the NCHD, alleges that Respondent's odor emissions and the chlorine gas release of January 30, 1992 constitute a violation of 6 NYCRR 211.2. This is the State's general nuisance regulation, which is entitled "Air pollution prohibited," and reads as follows:
"No person shall cause or allow emission of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property. Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others."
The Staff's submissions, however, even without considering the opposing facts averred to by Respondent, fall short of supporting summary judgment for a violation of 211.2 based on Respondent's air emissions
Staff does not allege that any person or property has been injured by Respondent's emissions other than one of Respondent's own employees due to the January 30, 1992 chlorine gas release. The evacuation of several nearby residents on that occasion was precautionary only. The number of other confirmed odor incidents detectable off the site is quite few, and in most of those, even according to Staff's allegations, the odor dissipated quickly. Staff does not dispute Respondent's consultant's affidavit that establishes the neighboring Plascal plant as the major source of odorous emissions in the neighborhood. It is also undisputed that the Respondent has purchased additional air pollution control equipment designed to further reduce odors, but has been prevented from installing it by the Town of Oyster Bay's litigation. To some degree, however, parts of Staff's affidavits can be fairly construed to support the theory that Respondent's emissions cause an unreasonable interference with some of the neighbors' enjoyment of life and property.
6 NYCRR 211.2 adopts the common law of nuisance and applies it to air emissions. The principles of the common law nuisance doctrine are well established.
"Whether the particular use to which one puts his property constitutes a nuisance is generally a question of fact, and depends on the reasonableness of the use under all the circumstances. . . The status of a particular use as a nuisance depends upon the facts of each particular case, such as location, use, extent and frequency of the injury, the effect upon the enjoyment of life, health, and property, and the like." 42 N.Y. Jur. 456, Nuisances 12. "When the peace and comfort of a neighbor's home is substantially affected by distasteful, noxious odors, a private nuisance arises. . . However, where the owner of a plant has installed modern equipment and taken other precautions to avoid the escape of disagreeable smells, it has been held that the inevitable escape of some odors from the plant did not constitute a nuisance." 45A N.Y. Jur. 125, Pollution and Conservation Laws 61.
Thus in order to show a nuisance or violation of 211.2, there must at least be facts presented to demonstrate the effect of the air emissions on particular persons' comfortable enjoyment of their life and property. Then those effects must be balanced against the right of the facility to make reasonable use of its property in all the circumstances.
The Staff's affidavits refer to the number of complaints (most of which were not confirmed) received from the neighborhood about Respondent's facility, but go no further. There is no firsthand showing of any unreasonable interference with anybody's comfortable enjoyment of life and property caused by Respondent's emissions. Such evidence would be necessary in order to prove a violation of 211.2. (See Matter of Delford Industries et al, Decision of Commissioner, April 13, 1989, Hearing Report p. 43 et seq). Respondent's factual submissions, which must be accepted as true on a motion for summary judgment, indicate its odor emissions were minor and short-lived, and that it is acting responsibly to further reduce odors. Contrary to the assertions in the Smith affidavit, the mere fact that an odor was detectable off the site (if that is what Mr. Smith means by saying the odor "was allowed to impact the adjacent community") is insufficient to establish a violation of 6 NYCRR 211.2.
The Staff's affidavits do however provide sufficient facts to raise a potential factual issue regarding whether Respondent's emissions constitute a violation of 211.2 to be reserved for hearing. As with the other issues reserved for hearing, a prehearing conference will first be held at which the parties will submit offers of proof to help determine whether there is enough actual substantive factual matter in dispute to warrant holding an adjudicatory hearing on the issue. In order for a hearing on the 211.2 charge to be held, Staff would have to be able to present firsthand evidence beyond the general allegations in the affidavits submitted with the motion for summary order.
The affidavit of Bruce Smith of the NCDH also alleges that certain air emission releases violated the Stipulation entered into between the NCDH and RESNY. This, however, provides no basis for enforcement in this proceeding. The Stipulation (in which NCDH is acting as agent for the Department Staff) has already been invoked or enforced according to its own terms. The facility was temporarily closed after several air emissions on orders of the environmental monitor or the NCDH. There is no provision for further relief in the Stipulation that could carry over into this proceeding.
The chlorine gas release incident of January 30, 1992, did, however give rise to violations of the hazardous waste regulations governing handling of incompatible wastes, as alleged by Staff in Mr. Becherer's affidavit. Respondent caused the chlorine gas reaction by mixing incompatible wastes in an insufficiently decontaminated tank. This constituted violations of 6 NYCRR 373-3.10(j)(1) and (2) which prohibit the placement of incompatible wastes in the same tank, and the placement of hazardous waste in a tank that has not been decontaminated. The Respondent did not however violate 6 NYCRR 373-3.3(h)(2), also cited by Staff. That paragraph is only applicable where the mixing of incompatible wastes is specifically required by the other sections of the regulations.
This violation of mixing incompatible wastes is relatively serious compared to the other violations Respondent has been found to have committed. It caused the release of chlorine gas which created a significant threat of environmental harm in the surrounding area. The specific amount of the civil penalty to be imposed for this penalty will be reserved as an issue for the hearing, at which the parties can develop the record on the various relevant penalty factors. This incident is also serious enough to be considered a basis for seeking revocation of Respondent's permit. The broad issue of relief sought is discussed in more detail below in this Discussion portion of this Report.
The County's sampling and one of Respondent's self-monitoring reports have revealed 72 instances of apparent accedences of the limitations for various parameters in Respondent's industrial wastewater discharge permit over the past seven years. However the motion papers do not indicate the severity of any of these accedences, and they do not allege they had any adverse effect on the environment or the County's Cedar Creek Treatment Plant. Respondent contends that sampling errors have caused an overstatement of the number of these accedences, but provides no specific examples.
Thus, while it is clear that accedences have occurred, the current record provides no solid basis for assessing appropriate civil penalties or other relief. Therefore the facts and circumstances surrounding the Respondent's wastewater discharge accedences are reserved as an issue for hearing in order to provide a basis to assess an appropriate penalty. The facts concerning the number and severity of the violations need to be ascertained. Adjudication of this issue will also encompass the relevant civil penalty factors.
The motion papers do provide greater detail about the purple effluent discharge incident of May 12-13, 1993. This release was obviously more serious than the typical permit limit exceedence, although Staff did not allege it actually had any adverse effects on the environment or the County's Cedar Creek sewage treatment plant. Therefore the environmental harm, if any, of this release, as well as the other relevant civil penalty factors, will be reserved as an issue for hearing.
The Department Staff alleges that on May 24, 1993 the Respondent violated an "agreement" not to allow truck activity at the facility unless an environmental monitor was present. If there was any such agreement, the Department was not a party to it and has no jurisdiction to enforce it. This type of activity was not prohibited by the Stipulation in any event. Therefore, this allegation does not constitute a violation of the Department's rules and regulations.
Compliance History at Other Facilities
The Department Staff contends that Respondent's compliance history at the Farmingdale facility and that of other RESI subsidiaries at several other facilities render it unsuitable to continue to hold a permit to operate a hazardous waste management facility in this State. Staff cites the Department's authority to deny or revoke such permits if the Commissioner finds the applicant is "unqualified or unsuitable" under ECL 27-0913. In addition, the Commissioner's Record of Compliance Enforcement Guidance Memorandum dated August 9, 1991 ("EGM") sets forth a comprehensive policy and guidelines for Staff to follow to ensure that permits are issued only to suitable persons.
The Findings of Fact list the facts relevant to the Respondent's alleged violations at the Farmingdale facility, as well as the final determinations of enforcement and permitting proceedings involving the facilities or operations of other RESI subsidiaries. On this motion for summary judgment, it is not necessary however to analyze the relevant facts and circumstances surrounding the matters at other facilities, other than to state a few basic principles. The compliance history of Respondent's sister companies at other facilities will always be less relevant than the compliance history at the facility that is the subject of this proceeding. That is the reason the Findings of Fact do not delve into the various mitigating factors and other circumstances surrounding violations at other facilities. Additional factors in weighing the relevance of violations at other facilities are their recency and the closeness of the corporate relationship with Respondent.
The Respondent has set forth a litany of alleged mitigating circumstances for the particular violations found at other facilities. Respondent generally contends these mitigating facts indicate it and its sister companies are not persistent violators in the context of the hazardous waste management industry, and that they consistently have acted in a responsible manner to correct violations, most of which were unavoidable or due to the acts or omissions of other parties. Respondent points out that the other jurisdictions in which these violations have occurred have continued to grant and renew Respondent's hazardous waste permits.
The relief sought of revocation of Respondent's permit should not be granted on this motion for summary order. The particular facts surrounding the specific enforcement matters at other facilities, as well as the fairness of the relief sought here in the broader context of the regulation of the hazardous waste industry remain in dispute. The record of compliance issue and the appropriate relief stemming from Respondent's compliance history will remain as issues for hearing. The scope of this issue and procedures for addressing it at the adjudicatory hearing will be addressed at a prehearing conference.
Effect on State of Closing Respondent's Facility
Respondent contends that closing the Farmingdale facility will have an adverse effect on the State's ability to manage hazardous wastes. The Department Staff does not dispute the fact that the RESNY facility represents significant component of the State's hazardous waste treatment capacity on Long Island. Its temporary closure has resulted in strains on other facilities and in increased transport distances and risks.
These considerations, however, do not create an issue for hearing. Respondent does not contend that closure of the RESNY facility would actually contravene any law or regulation, or that the facility is indispensable. The facts concerning the effect of closure of the facility are essentially established on the record and may be cited in argument, ultimately to the Commissioner, as a possible consideration in determining whether Respondent's permit should be revoked.
Civil Penalties and Revocation of Permit
As indicated above in the discussion under each of the categories of allegations against Respondent, the amount of the civil penalty to be imposed, and whether the Respondent's permit should be revoked, remain as issues for adjudication. In general the facts remain in dispute over the usual factors that form the basis for determining an appropriate penalty. In terms of the Commissioner's Civil Penalty Policy, these include the degree of environmental harm caused by the violations, the economic benefit to the Respondent, and the degree of cooperation of the Respondent.
In addition, the Department Staff has not attempted to break down the $350,000 penalty sought into requested amounts for each violation, or even cited the applicable penalty provisions in the Environmental Conservation Law. Staff will have the burden at hearing to justify its request for the total relief sought by particularizing its request for each violation and supporting it by showing the facts relevant to the penalty factors. Respondent, of course, will have the opportunity to present its evidence in opposition to Staff's case for penalties. Similarly and in conclusion, the parties can contest at hearing and in final arguments whether the record as a whole justifies the revocation of Respondent's permit.
Respondent also contends it is being subjected to unfair enforcement action in comparison to other facilities in the State. I construe this latter contention not in the nature of alleging selective prosecution, but as an argument that precedent in the enforcement and regulation of similar facilities is relevant to the appropriate relief in this proceeding. Both parties may cite consent orders or other final enforcement actions at similar facilities in their arguments on appropriate relief, but these other actions will not be the subjects of any adjudication.
The Respondent also claims the Department Staff is improperly responding to pressure from the Town of Oyster Bay in pursuing this enforcement action. The facts concerning the Town's litigation against Respondent are established in the record because they are relevant to Respondent's claims of mitigating circumstances in partial defense to some of the Staff's allegations. But Respondent has made no substantive attempt to show any facts indicating any actual improper influence exercised by the Town on the Department Staff. The totality of the facts and circumstances surrounding Respondent's compliance at its Farmingdale facility will determine the ultimate outcome without any reference to any alleged pressure exerted by the Town of Oyster Bay.
The Department Staff in its motion also seeks an order denying Respondent's pending Part 373 permit application to continue operations at the Farmingdale facility. This relief cannot be granted under the Part 622 enforcement hearing procedures that govern this proceeding. Even if Respondent's permit is revoked as a result of this proceeding, its pending application would still have to be reviewed under the authorized procedure in Part 621 before any final determination is reached whether to deny that application.
The Respondent submitted a Draft Consent Order dated August 24, 1992 which was never finally executed by the parties as part of its request for relief. The Respondent asks that the Commissioner order issuance of a similar consent order or that Staff reopen negotiations to update that consent order. Apparently, Respondent is still willing to accept the basic terms of that Consent Order, which imposed a $150,000 civil penalty and required Respondent to close the facility by the end of 1996. Ordinarily settlement negotiations are not relevant and are not considered on the record of an adjudicatory hearing. However, the Draft Consent Order was submitted here without objection by the Department Staff, in the nature of an alternative prayer for relief by the Respondent. It can thus serve as a reference for the parties to use in their arguments on the appropriate relief to be imposed in this proceeding.
- Respondent violated the limits for number of drums allowed to be stored in its Part 360 hazardous waste permit on seven occasions.
- Respondent stored wastes prohibited by its Part 360 permit on seven occasions.
- Respondent stored more than 50 cubic yards of sodium hydroxide sludge on five occasions, contrary to a condition in its Part 360 permit.
- Respondent accepted wastes prohibited in its Part 360 permit on three occasions in 1993.
- Respondent submitted quarterly reports that were not in the proper form to indicate the number of drums on site at the end of the quarter, as required by Respondent's Part 360 permit.
- On February 5, 1992, the surface coating on the secondary containment barrier around several of Respondent's facility's tanks was peeling and cracked, in violation of 6 NYCRR 373-3.10(d)(5)(i)(c). This did not also constitute a violation of 6 NYCRR 373-3.10(d)(2).
- On February 5, 1992, several of Respondent's tanks did not bear labels indicating they contained hazardous wastes, in violation of 6 NYCRR 373-3.10(e)(4).
- The motion submittals do not establish that Respondent's air and odor emissions constitute a violation of 6 NYCRR 211.2. Resolution of this alleged violation is reserved for the adjudicatory hearing.
- Respondent's employees' mixing of incompatible wastes in a tank on January 30, 1992, causing the release of chlorine gas through the stack, constituted violations of 6 NYCRR 373-3.10(j)(1) and (2). This incident did not comprise a violation of 6 NYCRR 373-3.3(h)(2).
- Respondent discharged wastewater that exceeded its discharge permit's parameters on up to 72 occasions from 1985 to 1993. The exact number and characteristics of those accedences are issues reserved for hearing.
- Respondent discharged a purple effluent from an inadequately treated waste tank, through a malfunctioning valve, on May 12-13, 1993. This effluent exceeded many of the parameters in Respondent's Industrial Discharge Permit.
- The Respondent's sampling of a truck load at Respondent's facility on May 24, 1993 did not constitute a violation within the jurisdiction of this Department.
- Several other RESI subsidiaries have committed violations in the States of Pennsylvania, New Jersey and Ohio. The circumstances surrounding the record of compliance of Respondent's sister companies at other facilities is reserved as an issue for the adjudicatory hearing.
- On this motion for summary judgment, no substantial basis is presented upon which to determine appropriate civil penalties for the violations found. The Department Staff will have the burden to particularize and support its requests for civil penalties for each of the violations Respondent is found to have committed. The mitigating circumstances raised by Respondent and other civil penalty factors remain in dispute for all violations. The appropriate civil penalty amounts to be imposed for each violation remain in dispute and are reserved as hearing issues.
- On this motion for summary judgment, the record does not demonstrate that Respondent's record of compliance at Farmingdale, or that of its sister companies at other facilities, is so poor as to justify immediate revocation of its permit and closure of its hazardous waste management facility. That issue is reserved for determination upon the record as developed at the adjudicatory hearing.
- The relief sought of denial of Respondent's pending Part 373 permit to operate a hazardous waste management facility cannot be granted in this proceeding.
- Closure of Respondent's facility would reduce the State's and the Long Island region's capacity to manage hazardous waste, but this does not create an issue for hearing.
- No facts or issue are raised by the Respondent's allegation that the Department Staff is improperly responding to pressure from the Town of Oyster Bay in pursuing this proceeding.
Pursuant to 6 NYCRR 622.10, these rulings recommend granting a partial summary order on certain alleged violations, finding certain facts established for all purposes in this action, and ordering a hearing to be held on triable issues of fact on certain remaining violations, and on the amount of civil penalties and other relief to be imposed. These are all specified in the Conclusions above.
I recommend that the Commissioner remand this matter to me to conduct an adjudicatory hearing in accord with those Conclusions.
Before beginning the hearing, I will convene a prehearing conference to attempt to narrow the factual issues that will actually be tried, and to discuss other procedures that may expedite the hearing process.
Andrew S. Pearlstein
Administrative Law Judge
TO: Deborah W. Christian, Esq.
NYSDEC Central Office
50 Wolf Road
Albany, New York 12233-5500
Michael B. Gerrard, Esq.
Berle, Kass & Case
45 Rockefeller Plaza
New York, New York 10111
cc: Carl G. Dworkin, Esq.
Joseph Sferrazza, Esq.