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Geo A. Robinson and Co., Inc. - Decision and Order, March 2, 1994

Decision and Order, March 2, 1994

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
an Alleged Significant Threat to the Environment at an Inactive Hazardous Waste
Disposal Site, Under Article 27, Title 13 of the Environmental Conservation Law of
the State of New York (the "ECL") and the Matter of Alleged
Violations of Article 27, Titles 7 and 9 of the ECL by

GEO. A. ROBINSON & CO., INC.

Respondent.

DECISION AND ORDER
Site #828065
File #B8-0066-84-12

This Decision and Order relates to the action brought against George A. Robinson & Co., Inc. ("Robinson" or the "Respondent") who is alleged to be a person responsible for an inactive hazardous waste disposal site which constitutes a significant threat to the environment and for other alleged violations of Articles 7 and 9 of Article 27 of the ECL. The subject of this proceeding is the site of an industrial facility operated by Respondent at 477 Whitney Road, Town of Perinton, Monroe County (the "Site").

The Hearing Report (the "Report") prepared by Administrative Law Judge ("ALJ") Frank Montecalvo concludes that Robinson is a responsible party for the inactive hazardous waste site but finds that there is not enough evidence to show that the site is a significant threat to the environment. The findings of fact of ALJ Montecalvo are accepted, except as noted below. However, for reasons discussed in this Decision and Order, I find that these facts are adequate to sustain a finding that the site constitutes a significant threat to the environment.

Respondent's Affirmative Defenses

In its answer, Respondent raised a number of affirmative defenses to this action. These are addressed immediately below. For clarity's sake, the related defenses are grouped together.

Absence of Rules Pursuant to ECL 27-1313

When this case was being heard, a set of rules derived from ECL 27-1313 was declared invalid by the New York State Court of Appeals [Matter of New York State Superfund Coalition, Inc. v. New York State Department of Environmental Conservation, 75 N.Y.2d 88 (1989)]. On April 20, 1992, the Department adopted a new set of rules. However, as stated in the Hearing Report, this case is being decided in reference to the statute alone.

Although the Legislature authorized the promulgation of rules to implement the requirements of ECL 27-1313, the Department is not obligated by statute to do so (see ECL 27-1315). The Respondent claims that the statute cannot be implemented in the absence of rules because the standard of "significant threat to the environment" is unconstitutionally vague, both on its face and as applied in this particular case.

The constitutional rules against vagueness relate to two due process issues. The first concerns placing people on notice of unlawful conduct and the second concerns preventing arbitrary and discriminatory enforcement [Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)]. In this instance, the first issue is of lesser concern since the statute is remedial in nature and, for the most part, is being applied to circumstances that were created before it was in effect.

The degree of precision that the constitution requires of statutes differs depending on their nature [Hoffman Estates v. Flipside, 455 U.S. 489 (1981)]. The most exacting standards apply where the statute threatens to inhibit the exercise of constitutionally protected rights (Hoffman Estates,supra at 498). Courts have also expressed much less tolerance for vagueness where enactments carry criminal rather than civil penalties because the consequence of imprecision is qualitatively more severe (Hoffman Estates, supra at 498-499). In this case, the standard at issue appears in a statute that involves neither constitutional rights nor the potential for criminal penalties.

On the other hand, courts have found it appropriate to broadly interpret statutes whose purpose is the protection of public health and welfare as well as those that are remedial in nature [(U.S. v. Conservation Chemical Co., 619 F.Supp. 162 (W.D. Mo. 1985)]. This statute fits into both of those categories.

In fact, standards that are very similar to the one at issue here have been found to be sufficiently clear. Both the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") include provisions which depend upon determining the presence of "an imminent and substantial endangerment to public health or the environment" (see 42 USC 9606(a) and 42 USC 7003). The term "endangerment" has even been interpreted to involve a showing of a "threat of harm" (U.S. v. Conservation Chemical Co.,supra), making the cited RCRA and CERCLA standards "substantial endangerment" comparable to the state standard of "significant threat." The courts have held that the standards in RCRA and CERCLA are enforceable, even without implementing regulations [United States v. Outboard Marine Corp., 556 F.Supp. 54 (N.D. Ill. 1982); U.S. v. Ottati and Goss, Inc., 630 F.Supp. 1361 (D.N.H. 1985)].

In summary, I conclude that the statute is neither vague on its face nor as applied.

Adequacy of Notice

Respondent argues that Staff's complaint did not put it on adequate notice of the nature of the significant threat and the facts that the Staff would rely upon.

The purpose of a complaint is to provide notice of the events out of which the grievance arises (see CPLR 3013 and Siegal, New York Practice, Second Edition 208). Review of the amended complaint demonstrates that it is legally sufficient. It contains statements concerning the nature of the disposal alleged and a statement that a significant threat is alleged to groundwater and the surrounding environment.

No Subject Matter Jurisdiction over the "Old Lagoon" Area

Respondent argues that the portion of the Site where the old lagoons are located does not constitute a part of the inactive hazardous waste disposal site as defined in ECL 27-1301(2). The lagoons were used to dispose of the effluent from the Respondent's electroplating operations.

Respondent maintains that no disposal of wastes was involved in the lagoons because the materials that were disposed of there were subject to permits under ECL Article 17 and were therefore excluded from the definition of waste. Even if the materials disposed of in the old lagoon area are found to be wastes, the Respondent maintains that the area does not meet the definition of an inactive hazardous waste disposal site.

As defined in ECL Article 27 Title 13, the term "waste" excludes:

"... solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under article seventeen of this chapter (the Environmental Conservation Law, Chapter 43-B of the Consolidated Laws)."

ECL 27-1301(5)

The record shows that a state pollutant discharge elimination system ("SPDES") permit was issued to Respondent on June 4, 1974 pursuant to ECL Article 17. It also shows that unpermitted discharges from the lagoon area to groundwater were occurring prior to that time. Therefore, Respondent is essentially arguing that materials are excluded as wastes even if they should have been permitted but were not.

The provisions at issue are part of a remedial statute designed to address serious environmental problems caused by inactive hazardous waste disposal sites. The Legislature itself in its findings accompanying the enactment indicated that ECL Article 27 Title 13 was needed, in part, because the then-existing laws were inadequate to address the environmental problem posed by old disposal sites (see L.1979, c. 282 1).

It is well established that a broad interpretation of a remedial statute is necessary in order to ensure that its legislative purposes are fulfilled (U.S. v. Conservation Chemical Co., supra). If, as suggested by the Respondent, the definition excluded not only materials that were point sources permitted under ECL Article 17 but also those that should have been permitted, the remedial purposes of the statute would be undermined and violators of the law rewarded. It can not be reasonably inferred, as suggested by the Respondent, that the Legislature intended the Department to be limited to those pre-existing remedies where unpermitted discharges took place. It can only be inferred that the Legislature was prepared, because of equitable considerations, to accept a less comprehensive remedy whenever the disposal that caused the significant threat was permitted by the State.

Therefore, I conclude that these materials disposed of in the lagoon area prior to June 4, 1974 are definitionally wastes. There is no dispute that, if they are found to be wastes, they are hazardous wastes.

Respondent also maintains that, even if the materials disposed of in the lagoons are found to be wastes, the lagoon area does not meet the definition of "inactive hazardous waste site" contained in ECL 27-1301(2) because authorizations were issued for disposal in that area by the Department. The authorizations cited by the Respondent consist of an administrative consent order issued in 1973 and a SPDES permit issued in 1974.

However, the definition of inactive hazardous waste disposal site only excludes sites where an authorization was in effect after the effective date of ECL Article 27, Title 13 (August 25, 1979, see L.1979, c.282 9). The record shows that both of the authorizations issued to the Respondent had expired prior to the effective date of the law; the administrative consent order was satisfied and expired in August 1975 and the SPDES permit expired on June 4, 1979. Hence, the exclusion does not apply. The lagoon area is part of the inactive hazardous waste disposal site that is the subject of this proceeding.

Evidentiary Issues

Both the Staff and the Respondent have appealed certain rulings of the ALJ relating to the admission or exclusion of evidence during the hearing. Those appeals are now addressed.

Exclusion of 1984 Soil Sampling Results

Staff appeals the exclusion of the results of soil sampling that occurred at the site in 1984. The sampling was performed pursuant to a search warrant. In the context of a separate proceeding before Perinton Town Justice Ronald J. Summers, the use of this evidence was suppressed.

Staff argues that the exclusionary rule which is derived from the fourth amendment to the U.S. Constitution does not apply to this proceeding and that, in any event, the ALJ does not have the authority to address constitutional questions. In the alternative, Staff argues that even if the search warrant was defective, the evidence should not be excluded from this proceeding because the evidence would otherwise have been inevitably discovered.

The New York State Court of Appeals has stated that, in general, the exclusionary rule is intended to apply to administrative enforcement proceedings [Matter of Finn's Liquor Shop, Inc. v. State Liquor Authority, 24 N.Y.2d 647, 653 (1969)]. This decision and companion cases were all made in the context of administrative enforcement actions. In fact, much of the rationale for extending this rule to administrative proceedings is that they too are penal in nature (Finn's Liquor Shop, supra at 655). To date, there is no decision that has addressed whether a similar result would obtain where the proceeding was remedial in nature although there is recent case law suggesting that exclusionary rule need not necessarily be applied in administrative hearings that are not penal in nature (Stedronsky v. Sobol, 175 A.D.2d 373 (3d Dept. 1991). Therefore, I find that there is no applicable precedent which addresses the question of whether the exclusionary rule would apply in this proceeding.

Because this issue is constitutional in nature, it should only be resolved if essential to the outcome of the case. Here, Staff offers the results of 1984 soil survey to bolster its case regarding whether the site represents a significant threat to the environment. As stated below, even without this evidence, the hearing record is adequate to support this finding. For the purposes of this Decision and Order, the 1984 soil sample results are not considered.

Admissibility of Testimony of Witnesses Schmitka and Forman

Respondent objects to the admission of the testimony of witnesses Schmitka and Forman on the grounds that their identities were discovered because of information obtained during an illegal search. However, as a factual matter, the Report concludes that the identity of the these witnesses did not occur as a result of the search referenced by the Respondent. There is no basis to exclude their testimony.

Chain of Custody

Respondent maintains that the Staff failed to establish a chain of custody for the soil samples that were obtained on July 8, 1986. For the reasons stated in the Report, I conclude that the chain of custody for these samples was adequately established.

Disallowal of Staff's Rebuttal Case

Staff appeals the ALJ's ruling to exclude the rebuttal testimony of Roger M. Waller and Sandra J. Crystall. The principal reasons for the exclusion of testimony was that it related to matters that should have been presented by Staff as part of its direct case and that, to the extent it addressed matters raised in the Respondent's case, it was redundant of other evidence already in the record.

The ALJ's ruling reflects a fundamentally flawed view of when rebuttal testimony can be allowed. The ALJ perceived that he was obligated to exclude testimony that could have been presented as part of the direct case. In fact, even in criminal cases, the trial court has discretion to allow either party to offer evidence that could have been presented as part of the direct case [see CPL 260.30 and People v. Koerner, 154 N.Y. 355 (1897)]. In this case, because the governing statute is remedial in nature, the main concern is that a complete record be created for the decisionmaker. In the absence of demonstrated prejudice or an abuse of process, rebuttal should be allowed if it will improve the record.

Therefore, I conclude that the testimony of these witnesses should have been permitted. No relief is provided in this Decision and Order because, as discussed below, even without their testimony, the record supports a finding that the site is a significant threat to the environment.

Significant Threat

Based on the adjudication in this case, the ALJ reached findings which resolve disputed issues of fact concerning the conditions at the site. The ALJ went on to conclude that the Staff had failed to demonstrate that these conditions constitute a significant threat to the environment. To the contrary, the findings reached by ALJ Montecalvo do support a conclusion that this site constitutes a significant threat to the environment.

The findings in the Report identify the presence of tri-cloroethylene ("TCE") in the on-site soils. TCE is a volatile colorless synthetic liquid used to degrease metals in cleaning fluids. Since at least the early 1970s, and until 1987, Respondent used TCE at a rate of about 800-900 lbs./month. During this period, approximately 15-20 gallons per month were routinely drained from Respondent's degreasers and either flushed out of Building 101 or dumped in the drain or near Building 73. The materials disposed of in this fashion were 65% - 75% pure TCE. TCE is present in the soils in one area of the site in a concentration of 19,000,000 parts per billion.

Groundwater is present in abundance about 25 feet below the surface of the site. The intervening soils are moderately to highly permeable (hydraulic conductivity of .1 to 3 feet per day) and contain no confining layer of low permeability.

The federal standard for TCE in drinking water is 5 parts per billion with a target goal of 0. The target is established in the ALJ's words because, "...of its (TCE's) potential risk of cancer to humans."

The record does not show the groundwater is currently being used for potable purposes. However, the State's regulations protect all non-saline groundwater to drinking water standards, regardless of current use (see 6 NYCRR 701.15). The fact that a particular segment of groundwater is not actively being used does not negate its status as an environmental resource. Because of the natural protections from pollution that groundwater enjoys, the law views groundwater as a potential source of potable water.

ALJ Montecalvo concluded that the presence of TCE in the soils in the amounts and concentrations identified was not shown to be a significant threat to the environment. The basis for this conclusion was that, "...the potential for wastes on-site to contaminate groundwater to a degree that would impair the water's usefulness as a current or future water supply, or to cause an adverse effect on an actual or reasonably foreseeable environmental receptor (via any route) was not established" (Conclusion #48 of the Report). The primary bases for this conclusion were the unquantified effects of volatilization of TCE and the absorptive capacity of the soil.

This analytic approach is fundamentally flawed in a number of ways. It is now well established that, in judging whether a particular set of circumstances constitutes an "imminent and substantial endangerment," it is not necessary to quantify risk (U.S. v. Conservation Chemical Co.,supra). As noted above, this standard is the virtual equivalent of the one at issue here. The relevant circumstances in this case show that there are extremely high concentrations of TCE remain at the surface of the site, despite the allegation by the Respondent that TCE is highly volatile. While an unknown amount of TCE will adhere to the soil, there is no demonstration that this phenomenon will account for all of the remaining TCE. In fact, even the Bonazountas study which was introduced by the Respondent shows 2.3% of the TCE originally spilled on soils reaching groundwater within 10 years.

In this case, the natural soil conditions are highly favorable to the migration of TCE through the soil to groundwater; they are permeable and there is no intervening impermeable layer. If, in fact, adhesion would prevent all TCE from reaching groundwater under these circumstances (high surficial concentration and permeable soils), it is unlikely that TCE would ever migrate through soils to groundwater. Yet there are many sites where TCE, a man-made chemical, is found in groundwater, where the only possible avenue for access was through soils.

When the above is considered in conjunction with the federal standard and target values for TCE in drinking water, I conclude that the evidence in the record does establish the existence of a significant threat. Once this significant threat was established, the burden shifted to the Respondent to demonstrate that there are adequate and reliable natural mechanisms to ensure that dangerous amounts of TCE never reach groundwater. The Respondent failed to meet this burden.

No conclusions are drawn at this time concerning the extent to which the hazardous wastes disposed of in the lagoon area independently constitute a significant threat to the environment. No such conclusions are necessary since I have already determined that the lagoon area is a part of the inactive hazardous waste disposal site which is the subject of this proceeding. Accordingly, since the site as a whole constitutes a significant threat, there is authority to require the remediation of entire site.

ECL Charges

The Respondent is charged with illegally operating a facility which engaged in the disposal of hazardous and solid waste without a permit. I concur with the ALJ that, at the time of the alleged violations, there was no validly promulgated listing of hazardous wastes in the regulations [People v. Macellaro, 113 Misc.2d 383 (West. Co. Ct. 1986), aff'd 131 A.D.2d 699 (2nd Dept. 1987), leave to appeal denied 70 N.Y.2d 801 (1987)]. Therefore, there can be no conclusion that Respondent disposed of hazardous wastes without a permit.

The Staff did demonstrate that the facility was disposing of solid wastes without a permit on seven separate occasions. I do not adopt the ALJ's recommendations regarding the civil penalty or the need for remediation.

The violations did not arise out of a single incident of disposal but rather seven separate and distinct ones. As such, a penalty may be assessed for each incident independently. Further, in arriving at his penalty recommendation, the ALJ ignored the fact that the solid wastes that were disposed of are now regulated as hazardous waste and, even at the time of the violations, were regulated as hazardous wastes by the U.S. Environmental Protection Agency. As such, I find that there are substantial potential dangers posed by the indiscriminate dumping of these wastes. I conclude that the maximum civil penalty is warranted as well as a direction to remove any remaining materials and to remediate any existing hazards.

NOW, THEREFORE, HAVING CONSIDERED THIS MATTER, IT IS ORDERED THAT:

  1. The Site is found to be an inactive hazardous waste disposal site which constitutes a significant threat to the environment.
  2. The Respondent is found to be the owner of the Site and a person responsible for disposal of hazardous wastes at the Site.
  3. The Respondent shall develop an inactive hazardous waste site remedial program, subject to the approval of the Department, for the Site. Such program shall be developed on a schedule to be established by the Department.
  4. After the Department's approval of the remedial program, the Respondent shall implement the program on a schedule to be established by the Department.
  5. Respondent is found to have committed seven violations of ECL Article 27 Title 7 in that it disposed of solid waste without a permit and continued this violation for six additional days.
  6. Respondent is assessed a civil penalty of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500) which shall be due and payable within thirty (30) days after the service of a conformed copy of this Order on the Respondent.
  7. Respondent shall remove the solid wastes that are the subject of these violations and remediate any hazards they may be causing. These actions shall be taken on a schedule to be established by the Department.
  8. All communications between the Respondent and the Department concerning this Decision and Order shall be made to the Buffalo Field Unit of the Department's Division of Environmental Enforcement, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  9. The provisions, terms and conditions of this Decision and 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
March 2, 1994

TO: Robert J. Alessi, Esq.
LeBoeuf, Lamb Leiby & MacRae
121 State Street
Albany, NY 12207-1622

Joseph P. Ryan, Maura Desmond
and Cheryl A. Peterson, Esqs.
NYSDEC - Regions 8 and 9
Division of Environmental Enforcement
600 Delaware Avenue
Buffalo, NY 14202

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road

Albany, New York 12233-1550

In the Matter of an Alleged Significant Threat to the Environment
at an Inactive Hazardous Waste Disposal Site, Under Article 27,
Title 13 of the Environmental Conservation Law of the State of New
York (the "ECL") and the Matter of Alleged Violations of Article
27, Titles 7 and 9 of the ECL

by
GEO. A. ROBINSON & CO., INC.

Respondent

Site #828065

File #B8-0066-84-12

HEARING REPORT

-by-

/s/

Frank Montecalvo

Administrative Law Judge

PROCEEDINGS

Pursuant to a duly served Notice of Hearing and Complaint dated April 26, 1989, the New York State Department of Environmental Conservation (the "Department" or "DEC") Division of Environmental Enforcement ("DEE") Staff (the "Department Staff" or "Staff") out of the Region 9 Office initiated a civil administrative enforcement proceeding, conducted in accordance with the State Administrative Procedure Act ("SAPA") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, against GEO. A. Robinson & CO., INC., 477 Whitney Road, East Rochester, NY 14445, (hereinafter the "Respondent"), in the matters of an alleged significant threat to the environment at an inactive hazardous waste disposal site, under Article 27, Title 13 of the Environmental Conservation Law of the State of New York (the "ECL") and alleged violations of Article 27, Titles 7 and 9 of the ECL.

Respondent filed an Answer dated May 16, 1989 responding to the Complaint, and simultaneously moved for dismissal of the Complaint on various grounds, and an order to serve written interrogatories. Staff cross moved on June 5, 1989 to serve an Amended Complaint. Respondent accepted and answered the Amended Complaint served with Staff's cross motion papers. Said Amended Complaint, which is undated, is the operative Complaint herein, a copy of which is attached hereto as Appendix A, and is the document from which "The Charges" and "The Relief Requested," below, are summarized. On June 12, 1989, Respondent moved for an order denying Staff access to or use of evidence seized under an illegal search warrant previously suppressed by a local justice court, including all evidence directly or indirectly derived from said evidence. These motions were decided by the assigned Administrative Law Judge's ("ALJ"'s) August 11, 1989 Rulings, attached hereto as Appendix B. These Rulings are briefly summarized below under "Major Rulings," and include a ruling which excluded the use of the previously suppressed evidence. Department Staff thereafter requested that the Commissioner reconsider the ruling which excluded the suppressed evidence. The Commissioner declined to reconsider the ALJ's ruling at that time, but invited Staff to renew its request in its post hearing brief.

Respondent moved during September, 1989, for leave to amend its Answer to the Amended Complaint, serving an Amended Answer to Amended Complaint dated September 11, 1989, with its motion papers. Said motion was opposed by Staff, but granted by the assigned ALJ in Rulings dated September 27, 1989 for the reasons stated therein, not repeated here. The aforesaid Amended Answer to Amended Complaint is the operative Answer herein, and is the document from which "The Answer," below, is summarized.

Following adjournments mutually agreed upon, an adjudicatory public hearing of this matter was commenced before the assigned ALJ, Frank Montecalvo, on October 10, 1989.

The Department Staff was represented at the hearing by the Division of Environmental Enforcement, Maura C. Desmond, Joseph P. Ryan, and Cheryl A. Peterson, Esqs., of counsel. Staff presented as its witnesses John J. Krajewski, senior engineering geologist with DEE; Charles W. Forman, Ken Kummerow, and Eugene Schmidtka, former employees of Respondent; Earl M. Hansen, former manager of Weston Designers and Consultants' Lyonville, PA laboratory; Thomas Johnson, senior engineering technician with DEE; Kenneth G. Bogdan, Research Scientist 3 with the NYS Department of Health, Bureau of Toxic Substances and Toxicological Assessment; C. Thomas Male, DEC Region 7 Engineer; and Joseph Sciascia, associate sanitary engineer, DEC.

The Respondent was represented by Nixon, Hargrave, Devans & Doyle; and LeBoeuf, Lamb, Leiby & MacRae; Robert J. Alessi, Esq., of counsel. Respondent presented as its witnesses Investigator Thomas J. O'Brien, DEC; Gerald Lauer, senior scientist - toxicologist and senior vice president with EA Engineering; Robert Olazagasti, solid waste management specialist, DEC Bureau of Solid Waste; Hari Agrawal, senior sanitary engineer, DEC Region 3; Frank Eugene Shattuck, regional solid waste engineer, DEC; Walter E. Demick, associate sanitary engineer, DEC; Ronald Tramontano, director, Bureau of Environmental Exposure Investigation, NYS Department of Health; Richard H. Dana, chief, Bureau of Technology Services, DEE; Thomas M. Koch, solid waste management specialist, DEC; Kernan Davis, associate engineering geologist, DEC Division of Hazardous Waste Remediation; Charles N. Goddard, assistant director, Division of Hazardous Waste Remediation, DEC.

Testimony was received on October 10 through 13, 1989; January 30 and 31, February 1 and 2, March 26 through 30, 1990, at the New York State Department of Environmental Conservation, Region 9 Headquarters, 600 Delaware Avenue, Buffalo, NY 14202; and June 12 through 14, and June 20, 1990, at the Department's Central Offices, 50 Wolf Road, Albany, NY 12233, concluding on the last mentioned date.

At the close of Staff's direct case, Respondent moved for summary judgment, asserting that Staff had not met its burden of proof. Decision thereon was reserved.

In accordance with an Order dated June 7, 1990, as modified at hearing on June 20, 1990, Staff "pre-filed" written proposed rebuttal testimony from two witnesses, the Respondent objected to its admissibility, and Staff replied. By Rulings and Order dated September 17, 1990, attached hereto as Appendix C, the proposed testimony was rejected and a schedule was set for submission of written closing arguments. These Rulings are briefly summarized below under "Major Rulings." Department Staff thereafter requested that the Commissioner reconsider these Rulings. The Commissioner declined to reconsider the ALJ's rulings at that time, but invited Staff to renew its request in its post hearing brief. The Order scheduling closing arguments was later modified by the ALJ on Staff's Motion.

The record was held open for the submission of Closing Briefs by Staff and Respondent, in that order, and a reply Brief by Staff.

The record closed on January 16, 1991, upon receipt of the Staff's Reply Brief.

The Charges:

Staff specified three causes of action, summarized as follows:

First Cause of Action, for creation of an inactive hazardous waste disposal site (ECL 27-1313(3)(a)), through repeated dumping or otherwise disposing of waste solvents, including trichloroethylene ("TCE," detected in significant concentrations in soil samples taken in 1986), onto the ground at the site during a period from 1980 through October, 1984; and, prior to and including 1975, discharging process wastewater containing heavy metals, hexavalent chromium and cyanides into treatment lagoons on the site to settle out contaminants to form sludge; which solvents, wastewaters and sludges are hazardous wastes that have migrated or have the potential to migrate to groundwater aquifers used as a source of potable water, and represent a significant threat to public health and the environment requiring the development and implementation of a remedial program at the site.

Second Cause of Action, for disposal of hazardous waste without a permit or authorization (ECL 27-0913(1), 27-0914(2)), through the activities already stated.

Third and Alternative Cause of Action, for operation of a solid waste management facility without a permit pursuant to 6 NYCRR 360.2(b)), through the activities already stated.

The Relief Requested:

Staff requested the following relief:

For the First Cause of Action, pursuant to ECL 27-1313(3)(a) and (4), an order directing Respondent to develop, subject to the approval of the Department, and implement, under the Department's supervision, an inactive hazardous waste disposal site remedial program (including a Remedial Investigation/ Feasibility Study) for the site, as defined in ECL 27-1301(3).

For the Second Cause of Action, pursuant to ECL 71-2705, an order directing Respondent to pay to the Department a civil penalty of $25,000 plus $25,000 for each day during which such violation continued, and, pursuant to ECL 71-2727, directing Respondent to take necessary and appropriate remedial measures for the Site.

For the Third Cause of Action, pursuant to ECL 71-2703, an order directing the Respondent to pay to the Department a civil penalty in the amount of $2,500 plus $1,000 for each day such violation continued, and, pursuant to ECL 71-2727, directing Respondent to take necessary and appropriate remedial measures for the Site; and such other and further relief as the Commissioner shall deem appropriate.

The Answer:

Respondent made specific response to each of Staff's allegations, essentially denying the charges, and asserted the following as affirmative defenses:

(1) Statutes of limitations and laches.

(2) The "First Cause of Action" fails because no facts to support the legal conclusion that a significant threat to the environment exists were plead.

(3) Valid regulations, including a definition of "significant threat", are needed before an ECL Article 27, Title 13 hearing may be held.

(4) A court suppression order bars the Complaint under principles of res judicata, collateral estoppel, exclusionary, and documentary evidence rules.

(5) All allegations pertaining to "hazardous waste" fail to state a cause of action because no valid listing and definition of hazardous waste existed in New York State until at least April, 1985.

(6) The Complaint failed to join a necessary party, i.e., the person(s) who committed the alleged acts of disposal (because they were acting outside the scope of their employment and without the knowledge of Respondent's officers and directors).

(7) The alleged site was improperly classified in the Registry of Inactive Hazardous Waste Sites because, as a matter of law, an alleged violation of a particular environmental standard, or the mere presence of alleged hazardous waste, does not constitute a significant threat to human health or the environment.

(8) Material allegedly disposed of was not "waste" (ECL 27-1301(5)) because it resulted from industrial discharges which are point sources subject to permits under article 17.

(9) The Site is not an "inactive hazardous waste disposal site" because disposal of alleged hazardous waste was authorized and permitted before and after 1979.

(10) An Order on Consent entered with the Department on March 7, 1973 with respect to "old ponds," and an August 27, 1975 letter from the then Commissioner, preclude the Department under principles of res judicata, collateral estoppel, and release, from adjudicating liability with respect to the "old ponds" and are the basis for a defense based upon documentary evidence.

(11) ECL 27-1301(2) provides that areas that received disposal of hazardous waste are not jurisdictional if the disposal was pursuant to a permit or other form of authorization, and, thus, the "new ponds" area is not jurisdictional because disposal was permitted under ECL Article 17 and closure of certain new ponds accomplished with express Departmental approval.

(12) The Complaint fails to state a cause of action with regard to the old ponds and new ponds disposal areas.

(13) The Office of Hearings does not possess subject matter jurisdiction to adjudicate allegations with regard to said old ponds and new ponds disposal areas.

(14) If the Department persists in pursuing Respondent's entire property as an inactive hazardous waste disposal site, then the Department is a responsible person by having issued permits to dispose of material and having approved closures of certain areas, and should not adjudicate the issue of responsibility because of its conflict of interest (which issue should be tried by the Court of Claims).

(15) The July, 1986, sampling and results are defective, unreliable, and do not accurately represent current conditions at the site.

Respondent requested dismissal; or reclassification of the site with the old ponds and new ponds determined not subject to Article 27 Title 13 jurisdiction; and "person responsible" be declared not an issue for adjudication; and other and further relief.

Summary of Major Rulings:

Rulings of August 11, 1989 (Appendix B):

I. Respondent's motion to dismiss the Complaint was denied at that time.

The Complaint was found to have stated a cause of action. Any vagueness of alleged conclusory allegations that the Site was a significant threat to the environment in the First Cause of Action could be remedied. The lack of a regulatory definition of "significant threat" to the environment did not cause the Complaint to fail to state a cause of action. Although a detailed legal analysis indicated that the lack of a validly promulgated definition of "hazardous waste" might cause the Second Cause of Action to fail, the ALJ did not have to make that determination at that time since dismissal of that cause of action would not have resulted in any economy to the hearing process (the underlying alleged facts were still in issue on the other causes of action alleged).

The First and Second Causes of Action were found not to be precluded by the rules of res judicata or collateral estoppel, nor by CPLR Rules pertaining to suppression of information improperly obtained or defenses founded on documentary evidence, in spite of the Order of a local Justice Court which suppressed the use of certain evidence seized by the Department pursuant to an illegal search warrant.

II. Staff was directed to answer two of Respondent's interrogatories, to describe the factual basis for the conclusion that the hazardous wastes on the Site are a significant threat, and to disclose the expert opinions (with underlying facts and grounds) upon which Staff's case would rely, in advance of the hearing.

III. Staff's cross motion was rendered moot by Respondent agreeing to accept the Amended Complaint.

IV. Staff was precluded from entering into evidence any evidence specified in Perinton Town Justice Ronald J. Summers' January 14, 1986 suppression Order. The law, pursuant to the Court of Appeals holding in Matter of Finn's Liquor Shop, Inc. v. State Liquor Authority, 24 NY2d 647 (1969), as well as other cases, is clear that the rule, which requires exclusion of evidence obtained in violation of Fourth Amendment rights to deter state officials from engaging in unlawful searches and seizures, applies equally whether evidence is sought to be used in a criminal trial or in an administrative proceeding. "There can be no justification for any state agency, charged with enforcement of the law, to rely in fulfilling its function, upon the unlawful and unconstitutional acts of its agents." Id. at 662-3. When a court decides the constitutional issue (as the Perinton Town Court did here), an agency may not ignore it. Evidence obtained through the use of a search warrant later invalidated by competent judicial authority is inadmissible for any purpose. Id. 660, 661. The instant case did not fall into any judicially recognized or statutorily created exception to the rule; and federal case law makes clear that the rule even applies to non-penal proceedings.

Rulings of September 17, 1990 (Appendix C) :

The pre-filed testimony of Roger M. Waller, a geologist, was rejected. The proposed rebuttal testimony was found to be predominantly another characterization of the Site - which was Staff's burden in its direct case, and, therefore, not proper for rebuttal. Where the pre-filed testimony was related to the methodology used by Respondent's witness, or assessed the validity of the conclusions derived therefrom, it was found to be redundant to what had been thoroughly explored in the record. In general, the proposed rebuttal testimony was found to be of minimal assistance to the trier-of-fact in evaluating the testimony of Respondent's witness, with any probative value thereof being far outweighed by the burden of the additional proceedings that would attend to its receipt into evidence.

The pre-filed testimony of Sandra Crystall, represented as an expert in the "HRS" site scoring methodology employed by the U.S. Environmental Protection Agency, was also rejected. Since Staff's primary witness relied on his "HRS" score for the Site when forming his opinion that the Site constituted a significant threat to the environment, Staff assumed the burden of showing that its witness applied the methodology correctly. Respondent attacked the HRS information by both cross examination of Staff's witness, and by having its own witness use the methodology to derive a different score. The proposed rebuttal testimony, which included another scoring package, was determined to be predominantly both another characterization of the Site (Staff's burden in its direct case), and a bolster to the testimony of Staff's primary witness. As either another characterization or a bolster, it was found to be inappropriate to allow into the record at that late stage of the proceedings. Where the proposed testimony was related to the methodology employed by Respondent's witness, it was found to be redundant to what had been already thoroughly explored in the record. The proposed testimony was found to be of minimal assistance to the trier-of-fact in evaluating the testimony of Respondent's witness, with any probative value thereof being far outweighed by the burden of the additional proceedings attendant to its receipt.[Note (a): The record contained sufficient information for the ALJ to make an evaluation of Respondent's witness' geological conclusions under Finding of Fact No. 11 below.]

[Note (b): The utility of the HRS scoring methodology in this proceeding is addressed in the "Discussion" section below.]

Motions Renewed in Closing Arguments:

Department Staff renewed its Motion for Reconsideration to the Commissioner dated September 29, 1989, which sought to overturn the ALJ's August 11, 1989 Ruling excluding the evidence previously suppressed by a local justice court, and now wants the record reopened to receive the evidence.

Department Staff also wants a determination of its Motion for Reconsideration to the Commissioner dated September 25, 1990, which sought to overturn the ALJ's September 17, 1990 rejection of Staff's pre-filed rebuttal testimony.

Respondent renewed its motion to the ALJ for summary judgment, originally made at the conclusion of Staff's direct case, which asserted Staff had not met its burden of proof.

Rulings on Unauthorized Submissions:

Respondent, with its Post-Hearing Brief, submitted the affidavit of Gerald Lauer which addressed issues presented in Staff's proposed rebuttal testimony. This submission is not properly part of a closing argument, which is not an opportunity to present additional testimony. Since Staff's proposed rebuttal testimony had been rejected, Respondent had no right to submit anything in sur-rebuttal thereto. Said affidavit is therefore rejected and is not considered further.

Staff, at Appendix III in its Post-Hearing Reply Brief, submitted proposed findings of fact and conclusions. Staff had already submitted a Post-Hearing Brief which contained no proposed findings and conclusions. Such findings and conclusions were not responsive to Respondent's brief, which had no proposed findings, etc., and thus are not properly part of Staff's reply brief. In addition, 6 NYCRR Part 622 does not authorize proposed findings of fact and conclusions, nor were such findings and conclusions ever authorized by the ALJ. Said proposed findings of fact and conclusions are therefore rejected and are not considered further herein. Respondent's request to submit its own proposed findings and conclusions in response thereto is denied.

DISCUSSION

Because the First Cause of Action dominated these proceedings, shaping how the evidence came forward, a discussion of the "significant threat to the environment" concept, and how it was addressed here, is presented now to provide some context for the Findings of Fact, Conclusions of Law and Recommendations which follow.

The effect of no "significant threat" definition:

ECL Article 27 Title 13 authorizes the DEC Commissioner to order persons to take remedial measures whenever he or she finds that hazardous wastes at an inactive hazardous waste disposal site constitute a "significant threat to the environment." Although the legislature specified types of information deemed appropriate for the Department to gather for the purposes of generating and classifying a list of inactive hazardous waste disposal sites (ECL 27-1305), the legislature did not define what it meant by "significant threat." The Department at one time promulgated rules and regulations in this regard (6 NYCRR Part 375), however, these were struck down in court. Thus, there is currently no valid statutory or regulatory definition of "significant threat."

Although there are probably scenarios that most people would agree constitute a "significant threat," drawing a distinction between scenarios that do and those that do not is difficult. The problem is that without a clear definition, "significant threat" will mean different things to different people. Whether a set of circumstances is perceived as a "threat," and whether the "threat" is perceived to be "significant" are determinations dependant upon the perspective of the determiner. When a threat is perceived, the mind pictures a cause and effect relationship: i.e., (1) the force or circumstance making the threat, and (2) the feared consequence if the threat were brought to fruition. Whether or not the threat is perceived to be significant involves application of subjective criteria to both the force and the possible consequence.

Without a guiding definition for "significant threat," Staff persons implementing Title 13 will apply their own sets of criteria. Those criteria may or may not be the same as the criteria used by other Staff persons, used by a Respondent, used by the ALJ in a hearing, used by the Commissioner, or intended by the Legislature.

The lack of a "significant threat" definition has consequences both as to the manner in which Staff carries out its responsibilities with respect to a particular site (ultimately reflecting on the credibility of its work product), and whether or not "due process" is afforded a particular respondent.

The criteria used by a Staff employee will determine how the employee goes about gathering and analyzing data to reach a "significant threat" conclusion. The data collected and methodologies used may or may not produce a scientifically objective characterization of a particular site. Other persons reading such a "significant threat" conclusion may use different criteria, and thereby unconsciously ascribe qualities to the underlying data or analysis which are not really there. Ultimately, actions by other employees may be triggered, based not so much on the data contained in a report, as on faulty assumptions made about the data.

When a hearing is required, "due process" rights are affected by the quality of the notice afforded to a particular respondent. Without a "significant threat" definition (unless the pleadings carefully set forth Staff's analysis of the alleged facts) a respondent may be left to guess why certain facts were deemed to constitute a "significant threat" -- depriving the respondent of the opportunity to formulate a defense to what may be faulty reasoning.

Adequacy of Notice:

In its Amended Complaint (Appendix A), Staff recited certain alleged facts, and concluded that they represented a "significant threat" to the environment, without articulating the consequences that Staff feared might flow from such facts, and why. Per Respondent's motion, the ALJ, by Ruling dated August 11, 1989 (Appendix B), required disclosures to provide Respondent with adequate notice of why the Robinson Site was a "significant threat." As its disclosure of the alleged facts and rationale underlying its "significant threat" determination, Staff sent only the one page reclassification form (i.e., the second page of what is attached hereto as Appendix E, minus most signatures). Again, a number of facts were alleged, and a conclusion drawn that the site was considered a "significant threat," but the consequences feared were not articulated (though a general, non-specific threat to the ground water supply, particularly that of East Rochester, was implied). In spite of the prior Ruling requiring pre-hearing disclosure of the rationale relied upon, Staff introduced into evidence on the fifth day of hearing (over Respondent's continuing objection) additional rationale stated in a "confidential" memo (see Appendix E). Yet again, that memorandum alleged additional facts (including an "HRS" score for the Site), but did not clearly state the consequences feared and why (though a threat to the ground water supply was again implied).

The manner in which Staff's case was plead, its responses to the August 11, 1989 Rulings regarding disclosure, and the manner in which it presented its evidence in its direct case, require me to conclude that the hearing was about, and the Respondent had notice of, only an alleged "threat" to the ground water supply, and no other threatened environmental harm. This conclusion focuses the Findings of Fact, Conclusions and Recommendations within on the ground water supply issue. Staff argued things in its closing briefs that were not understood to be in issue, e.g., alleged "likely harm" to ecosystems of two nearby streams, and alleged limitations on the future uses that the Site itself may be put to. None of these things may be properly considered now.

Anecdotal information:

A number of allegations of incidents or situations at unspecified times were made by two of Staff's witnesses, former employees of Respondent, that have been referred to in various Staff arguments. These allegations include: accidental spills of TCE (once) and "D-Burr-B" (a mixture of various acids, 6 times); the dripping spigot of the TCE barrel by Building 64; the burial of drums of old chemicals, septic tanks containing "soup" from electropolish tanks, lumber, two buildings; dumping of the contents of seven barrels possibly containing cadmium "but no one really knew" into the ditch; the venting of chromic acid fumes from Building 64 which sometimes condensed, dripped from the roof, ran overland to a pond, and once ate the paint on a car; discharge of caustic and acidic solutions from a tumbler in Building 201 onto the ground; disposal of acid-rotted floorboards into a dumpster; etc.

No findings are made with reference to any of these alleged incidents because, again, there was no notice that any of the incidents provided a basis for or were in issue on any of the causes of action alleged. Even if these incidents had been noticed with reference to the First Cause of Action, not enough information was presented to make them useful in assessing the Site's potential to cause an effect on the environment.

Indeed, trying to draw conclusions from these incidents can be misleading because they were not placed in context. For example, although the venting of chromic acid from the roof of Building 64 was of concern to a witness, was cited by Staff in its closing argument, and must have been of concern to the person whose car was damaged, such venting was specifically authorized by the Department in a Certificate to Operate an Air Contamination Source. It is contradictory for Staff to now cite a condition, created by a Department-authorized activity, as somehow contributing to a significant threat to the environment. Certainly, a reading of ECL Article 27 Title 13 makes clear that the legislature sought to protect respondents from the Department later declaring that permitted activities caused a "significant threat."

Credibility of Staff's "Significant Threat" case:

Although Staff called various persons with differing backgrounds and responsibilities as witnesses, Staff's case that the Site represented a "significant threat" rested primarily upon the conclusions drawn by one employee. At the time of the Site visit and sampling effort in 1986, the person had been employed by the Department for less than a year. He had been employed by the Department about two years when he recommended reclassification of the Site.

It is unknown exactly how the employee went about determining which data to collect, which data to report to the "team" that reclassified the Site on the Registry, and which to reject. No particular work plan or methodology for objectively characterizing a site was put in evidence. The employee appears to have been given the task of characterizing the site without supervisory guidance, being left to his own devises. As brought out under intensive cross examination, the employee perceived that it was DEE's (and his) job to get sites where hazardous waste is present cleaned up - with the "significant threat" determination being a necessary means to that end where a respondent was unwilling to voluntarily take action. The employee's approach here appears to have been influenced toward obtaining the "significant threat" outcome, rather than objectively characterizing the Site.

This was made apparent by a sampling methodology which was designed to produce the highest contaminant levels. Indeed, the employee directed the analytical laboratory not to analyze samples taken at a greater depth - samples which might be expected to exhibit decreasing levels of contaminants.

This was also made apparent by the employee's memos and testimony which cited facts out of context with other facts which were either known or could have been readily ascertained with minimal effort - facts which contraindicated a "significant threat" situation. The result of such presentations was to tender a misleading and unfair picture of the Site. Some examples follow. It was misleading, in the reclassification justification, to note East Rochester's use of the aquifer and its proximity to the Site (implying a threat to East Rochester's water supply) without also noting the gradient changes in the potentiometric surface between the two locations (tending to indicate no threat). It was misleading, in the supplemental memorandum, to cite on-Site disposal of waste TCE, Respondent's annual TCE usage in gallons, and a lack of disposal records for same (implying most of the TCE used was disposed of on-Site), without also noting (or attempting to find out) that Respondent had a DEC permit to vent a comparable amount to the atmosphere (the likely fate of most of the TCE used). It was misleading to testify that the "wildly" varying pH of Respondent's wastewater discharge would increase the solubility and mobility of metals that may have been deposited in the soil when such discharges have been long discontinued. Bits and pieces of information taken out of context present a distorted picture. The witness seems to have left out enough available information to render his conclusions largely incredible.

No finding is made with regard to, or inference drawn from, the employee's use of the US Environmental Protection Agency's "Uncontrolled Hazardous Waste Site Ranking System" to derive an Hazard Ranking Score (HRS) for the Site, in spite of the system's patent objectivity for analyzing site impacts, for three reasons. First, neither Staff's, nor its employee's, "significant threat" determination clearly relied on the system to a significant degree. Any reliance on the Site's alleged HRS score was not disclosed until 5 days into the hearing. Second, the system was designed for ranking facilities against each other for cleanup priority under a Federal law - not for determining what is or is not a "significant threat." There is no score designated as representing a "significant threat." The HRS system has not been adapted for and adopted by New York State as the methodology for making "significant threat" determinations under ECL Article 27 Title 13. Third, assuming the methodology is useable and has been adapted and adopted for use in making objective "significant threat" determinations, the Staff employee's competency to use the HRS methodology was not established. Although training courses in the methodology have been held from time to time in Albany, the particular employee here never attended one; his competency to use the methodology was not established through other means; and his objectivity in assessing the input data is questionable.

The unreliability of the conclusions drawn by Staff's prime witness was not cured by the Inactive Hazardous Waste Site Registry classification "process" which on its face implied some sort of peer review by selected Department personnel of reclassification recommendations. In spite of repeated requests by the ALJ to Staff for documentation explaining how the classification process worked, virtually nothing was produced. Verbal explanations were vague. All that is known here is that the employee's reclassification form and confidential memo were circulated among various ranking central office persons (plus one from the Dept. of Health) who "signed off" on same. It is not clear why these persons were picked to review recommendations or what criteria they applied. Indeed, under Respondent's examination (under subpoena) it was made clear that these persons essentially took what the Staff employee had to say at face value. Thus, their having "signed off" in agreement with the employee is entitled to no more weight than the employee's conclusions themselves.

FINDINGS OF FACT ("FF")

Respondent:

1. Respondent, Geo. A. Robinson & Company, Inc., is a corporation organized and existing under the laws of the State of New York and doing business in the State of New York by virtue of its ownership and operation at all times relevant herein of an industrial facility (including buildings, equipment and appurtenances) located on a parcel of land (the "Site") at 477 Whitney Road (west of the intersection of Whitney and Baird Roads and east of the Village of East Rochester) in the Town of Perinton, County of Monroe, NY, which engages in the business of electroplating, anodizing, chemical conversion of aluminum and mechanical finishing, and has so engaged in such business over a period of years.

The Site and its Environmental Setting:

2. The Site is roughly bounded by Whitney Road on the northeast, by a railroad track on the southwest, by a ravine and an unnamed creek on the northwest and other property on the southeast. The arrangement of these boundaries and of various features and structures on the Site is approximately that shown on a "Site Map" attached hereto as Appendix D and incorporated by reference herein for the purpose of visualizing the spatial relationships of various features to each other. However, it must be noted that not all the features depicted existed at all the times discussed herein, other features not depicted existed at various relevant times, and the existence of a pond with the exact location and dimensions depicted on the map west of Building 11 was not established. Buildings are depicted on the map by reference numbers surrounded by rectangles or other polygons.

3. The unnamed creek bounding the Site on the northwest flows westerly less than 1/4 mile to Irondequoit Creek which flows northerly several miles to Irondequoit Bay and Lake Ontario.

4. Most of the Site is on a "plateau" at an elevation of between 400 and 410 feet. A slope rises from 410 to 420 feet over a distance of about 300 feet in the southeasternmost portion of the Site. A slope drops from 400 to approximately 375 feet (the approximate level of the unnamed creek) over a distance of about 200 feet in the northwesternmost portions of the Site.

5. The Irondogenesee Buried Valley (a/k/a Irondogenesee Aquifer system), has been designated by the State in the "Upstate Groundwater Management Plan," as a "Primary" water supply aquifer (i.e., an aquifer that is presently used as a water supply), reportedly used by approximately 49,000 people. Three communities that use or have used this aquifer are identified in the record: Webster (pumping up to 7 million gallons per day), East Rochester (serving 8,000 people), and, prior to 1982, Pittsford (serving 3,000 people). In addition it was reported that the United States Geological Survey ("USGS," a reliable source of geologic information) estimated in 1980 that approximately 1,000 homes tap the aquifer directly. The boundaries of the aquifer system are not precisely defined, however, as conceptualized by Staff and depicted in the Management Plan, the system may be generally described as occupying an approximately 5 mile wide band from Lake Ontario north of Webster southward about 12 miles to the vicinity of Pittsford, all in Monroe County. This description may or may not be consistent with how other entities, such as the USGS, would define the aquifer system. The aquifer system consists of various unconsolidated sediments with varying properties which have been deposited within the confines of an ancient valley (i.e., now a buried valley) oriented generally in a north-south direction that had previously been carved in the underlying bedrock during glaciation. Groundwater movement within the aquifer system generally follows the pattern of surface-water drainage, flowing toward Irondequoit Bay and ultimately Lake Ontario. In general, groundwater flows from the eastern or western margins of the aquifer toward the center of the buried valley, and then northerly. However, at any particular location, the local glacial stratigraphy or topography may produce a different flow direction. Recharge of the aquifer system generally takes place primarily in the southern portion thereof where there are deposits of sands and gravels, extending from depth to the surface, with "moderate" to "high" permeability, allowing water infiltration.

6. The Site is located within the area underlain by the pre-glacial buried valley and, thus, is underlain by a portion of the Irondogenesee Aquifer system. The Site is approximately 1 mile northeast of the East Rochester community wells, almost 2 miles northeast of the Pittsford wells, and approximately 8 miles south of the Webster area wells which draw on the aquifer. No contamination of these wells by non-naturally occurring contaminants is known. Staff made no attempt for this record to locate any of the private residential wells that reportedly tap the aquifer.

7. The bedrock surface under middle the Site (i.e., the surface of the ancient buried valley) is at an estimated elevation of 325 feet, and slopes downward toward the west.

This finding is based on a map of "generalized bedrock topography and geologic sections," part of a series of maps published in 1982 by the USGS depicting the "Geohydrology of the Preglacial Genesee Valley, Monroe County, New York" ("Open-File Report 82-552," hereinafter the "1982 map series," Exhibits 1 and 58A-D in this record).

8. The natural deposits on the Site above the surface of the buried valley (bedrock) are expected to be approximately 80 feet thick, except near the unnamed stream where they would be about 60' thick.

No site specific data on the thickness of the deposits is in evidence. This finding is based on FFs 4 and 7, and interpolation from the contour lines on the bedrock map, which is the best information available in the record.

9. Undisturbed soil on the Site at the surface is likely to be "fine sand" of "moderate" or "high" permeability, with an hydraulic conductivity of between a tenth of a foot and three feet per day.

No analysis or measurement of samples taken on Site were placed in evidence to prove the Site's soil type and permeability. However, a map of generalized surficial geology, part of the "1982 map series," indicates that the Site is located in a zone having a surface geology consisting of "Lake sand, fine to medium; offshore deposits in proglacial or postglacial lakes; well sorted; moderate permeability." Also, another map of surficial geology published in 1985 by the USGS as part of a series of maps depicting the "Geohydrology of the Irondequoit Creek Basin Near Rochester, New York" ("Water-Resources Investigations Report 84-4259," hereinafter the "1985 map series," Exhibits 43, 44, 45 and 59A-F in this record), indicates that the Site is located in a zone having a surface geology of "lake sand, fine to medium sand in beaches, bars, and deltas of proglacial and postglacial lake plains; well sorted; high permeability." In addition, visual observation of the surficial soils immediately adjacent to the Site, made by Mr. Krajewski, a geologist qualified to render an opinion thereon, correlated with the "fine sand" description given by the literature. Mr. Krajewski also defined "moderately permeable" to mean the hydraulic conductivity above mentioned. These three sources of information, which represent the best available information in the record, support the finding herein. The "fine sand" term was not further defined.

10. Approximately 25 feet below the Site's surface would be a reasonable estimate of depth to the water table for the purposes of characterizing this Site.

No measurements, per se, of depth to groundwater on the Site are in evidence, thus, only (indirect) estimates of depth to the water table are available.

Staff's prime witness estimated groundwater at a depth of 20-25' below the Site, purportedly based on a potentiometric surface map, with an occasional depth as little as 5' below the surface, allegedly based on a USGS reference. However, the reference was not identified for the record and (per Discussion above) the witness' conclusions are not found to be reliable.

In response to a question regarding water table depth in the "general area" of the Site (i.e., not the Site itself), another witness, Mr. Krajewski, indicated that geologic literature (which he did not identify) estimated that for the "lake sand" surface geology unit the water table is encountered at a depth of 10 to 20' under "normal" conditions, with seasonal high water as high as a 5' depth. Mr. Krajewski, however, was not asked and did not use this information to estimate water table depth beneath the Site itself, thus the information will not be considered the equivalent of an on-Site estimate. Since the reference was not supplied, I am unable to assess its relevance to predicting on-Site conditions.

Dr. Lauer (Respondent's witness) did not estimate depth to the water table at the Site, but, rather, estimated depth to a "deep aquifer" (a rejected concept, see below). However, in discussing groundwater movement, he referred to the USGS topographic map for the area, and theorized that the unnamed stream to the northwest of the Site barred movement of shallow ground water across same, i.e., the stream would intercept the water table and carry ground water away as surface water.

Dr. Lauer's theory is consistent with written information provided on the USGS map of potentiometric surface and direction of groundwater movement (part of the 1985 map series) which indicated that the contours thereon were "generalized" and not necessarily reflective of actual water-table elevations at specific locations because of the influence of local topography and stratigraphy; and indicated that ground water in permeable sediments overlying impermeable materials generally drains laterally to nearby stream channels. The relevancy to water table depth is that the stream's altitude indicates the level of the water table in the immediately adjacent strata. In fact, the authors of the USGS potentiometric surface map, for a portion thereof, based their contours on stream altitudes where other data was unavailable. Since no Site specific measurement or estimate by a qualified expert is in evidence, it appears rational to regard the stream's altitude as the water table altitude at that location.

The USGS topographic map covering the Site places the altitude of the unnamed stream on or adjacent to the northwest portion of the Site approximately 25 - 30' below the altitude of the bulk or flat area of the Site. Since the stream is only about 200' away from the bulk of the Site, its altitude supports an inference that the water table is approximately 25' below the surface of the bulk of the Site.

11. It is likely that the Site is underlain by high or moderately permeable deposits which extend downward from the surface through the water table to a till layer of low permeability which rests on the bedrock valley. No "confining layer" of low permeability (as hypothesized by Respondent) which would impede the percolation of water from the surface to the water table, is expected to underlie the Site. The low permeability till layer, however, could be expected to impede percolation into underlying bedrock.

There is no direct evidence (such as core samples) of the Site's subsurface geology. Although geologic cross section (sub-surface) data was available to Staff in published maps, Staff witnesses made little effort to characterize the geology of the Site beyond identifying what was at the surface and the existence of the bedrock valley and aquifer below.

Respondent's witness attempted to use some of the available sub-surface data to support an hypothetical "confining" layer under the Site. That data indeed indicates that a ("confining") layer of low permeability materials at the surface overlies high permeability materials near the center line of the bedrock valley. However, the witness' extrapolation of this data up the sides of the buried valley to include the Site is rejected because it did not employ or account for available subsurface data from other locations (which were both closer to and on different sides of the Site), which permit interpolation of the subsurface geology and indicate no confining layer.

The 1982 and 1985 surface geology maps place the Site, the ravine and unnamed stream in the same fine sand ("high" or "moderate" permeability) unit, indicating such unit extends downward far enough to include the water table. Portions of geologic sections R-R', I-I', and D-D' from the 1985 map series are located south, east, and west of the Site respectively, and are closer to the Site than the sections employed by Respondent's witness. These cross sections indicate that south, east and west of the Site, moderately permeable layers extend from the surface, without an intervening layer of low permeability, downward to a low permeability till layer which lies on bedrock. Most of the cross sections in the map series indicate almost ubiquitous occurrence of till overlying bedrock. Since moderately permeable deposits extend from the surface downward to a low permeability till layer overlying bedrock on three sides of the Site, it is logical to expect the same arrangement at the Site itself. It is unknown how far below the level of the stream the till layer would be encountered.

12. The Site is within an area which recharges the ground water at a "low" rate compared with other recharge areas. The major recharge area for the Irondogenesee aquifer is primarily several miles south of the Site.

This finding is based on a map of ground-water recharge areas, part of the 1985 map series, that specifically places the Site within the boundary of the buried valley, but also within the boundary of a "lacustrine sand and silt" area with "low" relative recharge rate. "Low" is used as a relative term for comparing recharge areas with each other - it is not further defined. Although other maps and geologic cross sections in the record, including some from the same map series, characterize the permeability and water infiltration potential of various deposits, this is the only USGS documentation in the record that attempts to take available information and tie it to a relative recharge rate. This map, as part of the 1985 map series by the same authors, presumably has already accounted for the information in other maps of the same series (including surface and near surface geology) and is not inconsistent with it. It also has taken into account the information from the 1982 map series because such is cited as a reference. This map is the best available information concerning the relative importance of the area of the Site to the recharge of the Irondogenesee aquifer. The bulk of the "high" recharge areas (the major recharge areas) are clustered in the southern portion of the map -- several miles south of the Site.

13. Groundwater under the Site is expected to flow generally north or northwesterly toward Lake Ontario.

A map of the "generalized" potentiometric surface and direction of ground-water movement (part of the 1985 map series) places the Site between the 425' elevation contour east of Site, and 400' contour west of Site. A potentiometric contour shows the approximate altitude at which water would stand in tightly cased wells. Groundwater generally flows at right angles to the contours in the direction of decreasing contour elevation. On the map these contours show a "valley" in the potentiometric surface, oriented generally north-south, with decreasing elevation as Lake Ontario is approached from the south, thus groundwater would flow northerly paralleling the "valley's" orientation. The Site is located on the eastern slope of the "valley." Relatively close to the Site (i.e., within approximately 1/4 mile) the contours indicate a more westerly flow. Nevertheless, once the 375' contour in the potentiometric surface is reached (about 1/4 mile west of the Site), the general northerly trend is expected to prevail. If the unnamed stream adjacent to the Site on the northwest acts to drain water from strata under the Site, (which seems likely since the Site's surface and the stream are both within the same lake sand surface geology unit) flow would be northwesterly toward the stream. Either way, the flow ultimately will be northerly toward Lake Ontario.

14. Groundwater under the Site flows away from the East Rochester and Pittsford wellfields.

Per the generalized potentiometric surface map, straight lines connecting the Site to the East Rochester municipal wells, and connecting the Site to the Pittsford wells, would cross these contours in this order: 400, 375, 375, and 400'. Essentially, the wells are on the other side of the "valley" in the potentiometric surface. In effect, if groundwater were to move from the Site to the wells, it would have to move "uphill" a minimum of 25 feet ("up" the western slope of the "valley") to reach the wells. There is nothing in the record to suggest that either actual or potential pumpage of these wells could overcome the effects of the slope in the potentiometric surface. Staff did not attempt to show the effect of actual or potential pumpage of the wells on ground water flow. Respondent's witness presented evidence and an explanation that suggests existing pumpage of East Rochester wells has no effect on water levels (and thus on flow direction) beyond 800' from the wells - far short of the Site. If the unnamed stream northwest of the Site acts to drain the strata under the Site, the water drained will be carried away from these wells via the stream. Similarly, Irondequoit Creek, which lies between the Site and the East Rochester and Pittsford Wells, would also carry away from such wells any groundwater it drains from adjacent strata.

Whether or not the "valley" in the potentiometric surface, or the streams, constitute an "aquiclude" or "discontinuity," as those words were debated by the parties, is a semantical discussion that adds nothing to the conceptualization of the relationship of the Site to the wells found in the map of the generalized potentiometric surface, supplemented by topographic information covering the Site and environs.

Activities On/Related to the Site:

15. Respondent has been involved in plating (electroplating) all types of objects with zinc, nickel, copper, cadmium or chrome for many years. During the early 1970s, Respondent conducted its plating operations on the Site in Building 101 (depicted on Appendix D), then known as the "Plating Building."

16. In the early 1970s, the objects to be plated would be introduced to a soak for cleaning, a tank for electrocleaning through another rinse tank to the plating or pickling tank, then through various hot or cold rinses as needed, and then either to a rack or an electrically operated drying basket. This process used large quantities of water (approximately 700,000 gallons per month or about 55 gallons each working minute) which, following its use (and consequent contamination), had to be disposed of. The effluent from the plating operations contained suspended solids, dissolved zinc ("Zn"), copper ("Cu"), nickel ("Ni"), chromium ("Cr") and hexavalent Cr, iron ("Fe"), cadmium ("Cd"); and had a varying pH (high or low) coincident with the dumping of alkaline or acidic process solutions. Associated with the plating process was the use of a TCE (trichloroethylene - a solvent) vapor degreaser which also produced an effluent when it was drained of spent solvent and flushed with water for maintenance. All these effluents were ultimately discharged to the ground. At about this time, Respondent's facility used 800 to 900 lbs. of TCE per month.

17. The eastern end of Building 101 rested on the ground; the western end rested on concrete piers 3 1/2 to 4' high. Immediately west of Building 101 was a pond (shown as a stippled area on Appendix D, hereinafter "Building 101 Pond"), having dimensions of 50' x 80' x 2-3' deep. The Building 101 Pond was connected to a ditch, 8' wide and 2' deep, which ran approximately 740 feet westerly along the southern property line (i.e., parallel to the railroad tracks), to another pond, between Buildings 11 and 12 (i.e., not as displayed on Appendix D; hereinafter the "Western Pond") that was diked to prevent overflow toward the unnamed creek.

18. Effluents from Building 101 were primarily conveyed to the Building 101 Pond via 2 3" pipes that extended from the building. From the Building 101 Pond the effluent would either seep directly into the ground, or spill out into the ditch and the Western Pond where seepage could take place. Another route for effluents from Building 101 was through holes in the building's floor onto the ground under the building. From there the effluents would either seep directly into the ground or flow into the Building 101 Pond immediately adjacent thereto. Effluents taking the latter route were primarily liquids routinely spilled onto the building's floor during transfer of items from one process tank to another that were not absorbed by the ground-up corncob on the floor, and the degreaser's contents (which was drained onto the floor) with the flushing water.

19. In 1972, the Department notified Respondent that 2 lagoons receiving company wastes are "basically discharging to groundwaters of the State" and require a permit. As indicated by a permit issued later (see FF 25 below) the Department was concerned with outfalls to the Building 101 Pond (and presumably the Western Pond with interconnecting ditch), and/or a holding pond north of the "Anodizing Building," Building 52 (the holding pond not depicted on Appendix D).

20. Respondent and the Department executed an Order on Consent, File No. 1407, in February and March 1973 reciting, inter alia, that the Department had documented discharge of industrial and other wastes into groundwaters at the site; that Respondent's discharges after the Order's service in contravention of ground water standards would constitute violation of the Order as well as continuing violations of the ECL; that the Department would not institute any action for penalties for such violations for as long as Respondent adhered to and fully complied with the provisions of the Order and proceeded with and completed its water pollution abatement program in accordance with an attached schedule (which included submission of an engineering report and construction of facilities in accordance with final approved plans and specifications) with construction to be completed on or before November 1, 1974, and that Respondent would post $10,000 as financial security to ensure its compliance with the Order. The Order was later modified to extend the facilities' completion date to February 1, 1975.

21. In June 1973, samples were taken from the Building 101 and Western Ponds, the bottom mud of said ponds, and from (a) 3" hose(s) in the middle, underneath, and the corner of Building 101, which were analyzed for most of the materials mentioned in FF 16 above. Most of those materials were found to varying degrees in the pond and mud samples.

22. In April 1974, the Department approved Respondent's plans for an industrial wastewater treatment facility as contained in a report from Morrison and Morrison Consulting Engineers. The "Morrison report" not only proposed certain waste treatment practices, but also summarized existing operations, conditions and practices, and included the analytical test results mentioned above.

23. The Morrison report noted that oil used in the plating process would be collected in a degreaser, that the amount of such oil collected was about 15-20 gallons per month, and proposed to disperse the oil on the Site's gravel roads to control dust.

24. In 1974, the Building 101 Pond appeared to contain a "greenish" or "lime-yellow" solution or mud covered by about 3-4'of clear water. At the same time, the Western Pond appeared similar to an unused farm pond with weeds.

25. Respondent was issued a SPDES permit, effective June 4, 1974, expiration date June 4, 1979, to discharge effluent to groundwaters at the Site, provided that the effluent's characteristics were within specified limitations. Two levels of effluent limitations were provided: (1) initial, for the period prior to November 1, 1974 (which coincided with the completion date specified in the Consent Order), and (2) final, for the period beginning November 1, 1974. Outfall 001 (from the plating operations to the Building 101 Pond) had a maximum flow limitation of 35,000 gpd (gallons per day), and initial and final [final in brackets] daily average discharges of certain materials limited in terms of "#/day" (pounds/day) as follows: Cd .35 [0.006]; Cr 1.3 [hexavalent Cr 0.029, Cr total 0.29]; Cu 0.2 [0.116]; Zn 0.23 [0.175]; Cyanide 4.0 [0.116]; [Total Dissolved Solids 291.0]. Outflow 002 (from anodizing Building 52 to a holding pond north of said building) was limited to 5,000 gpd flow with no other limitations specified.

26. In December 1974 or January 1975, plating operations were transferred from Building 101 to a newly constructed plating building, Building 64.

27. The Building 101 Pond and the Western Pond were filled in the spring or summer of 1975 with material dredged from new ponds which had been or were being constructed about that time. What was described (FF 24) as a greenish or lime-yellow solution or mud at the bottom of the Building 101 Pond apparently remained after the pond was filled, since vehicles later passing over the area churned up substance resembling "lime pudding."

28. In August 1975, the Department returned Respondent's $10,000 financial security because it determined that Respondent had complied with the 1973 Order on Consent.

29. Inside Building 64 a vapor degreaser was used to remove oil from raw parts up until at least 1986. Following approximately 2 years of "sco-clor," TCE was used as the cleaning agent in the degreaser. A 55 gallon drum of TCE would be delivered to the side of Building 64 approximately every two weeks. TCE would be drawn from a spigot on a drum in the shed and placed in a pail, and then be taken into the degreaser. The TCE would be liquid in the lower portion of the degreaser where it would be vaporized by a heating element. The TCE vapors would rise from the heating element to the middle portion of the degreaser where some of the vapors would encounter the parts to be cleaned. Some of the vapors would condense on the parts, dissolving the oil thereon, and then the condensed TCE and oil liquid would fall back to the bottom of the degreaser. Vapors not condensing on parts would continue to the upper portion of the degreaser where they would either condense on a cool condensing coil (and fall back to the bottom of the degreaser) or continue beyond the coil to be vented from the degreaser and the building. TCE would have to periodically be added to the degreaser to compensate for evaporative losses. While in use, the liquid in the degreaser would become progressively more oily until such time as it was drained and replaced with fresh TCE. The degreaser's contents would be drained whenever heating elements were replaced, and once a month for cleaning. Cleaning was periodically necessary because residues would build up in the solution to the point where it would no longer clean.

30. The Building 64 degreaser's contents would be drained into a 5 gallon pail, and the contents would be either dumped down the drain or, most of the time, thrown by various employees outside onto the ground alongside, underneath or in an alcove on the north side of Building 73. Usually 3 5-gallon pails of the liquid would be disposed of at a time. In all, approximately 15-20 gallons of this substance were disposed of per month. This material was apparently the "oil" that the Morrison Report had previously proposed for dispersal on the Site's gravel roads (FF 23).

31. Respondent's management (Messrs. Sillitoe, Wink and Keppel) were aware of the method used for disposing of the drainings from the Building 64 degreaser. In addition, the person in charge of the plating building, Mr. Salmon, occasionally participated in the dumping.

32. On July 8, 1986, Department personnel (Mr. Sciascia and Mr. Johnson) took soil or sediment samples on the Site at the following locations: Sample Nos. 1A, 1B, and 2 were taken at three different depths adjacent to the northwest corner of Building 73; Nos. 3 and 4 were taken at different depths adjacent to the center of the west side of Building 73 near splash marks; Sample No. 5 was taken at the east end of Building 64; No. 6 at the north end of building 52; Nos. 7 and 8 at the northeast corner of the settling pond west of Building 64 (the larger of the two ponds displayed at that location on Appendix D); and Nos. 9 and 10 from the north and west sides of Building 202. Mr. Sciascia, then a Senior Sanitary Engineer with the Department's Division of Environmental Enforcement ("DEE") directed that the samples be taken from those locations he believed would yield the maximum contaminant levels. After the samples were taken (each placed in a vial and sealed), Mr. Johnson placed them in a cooler and took them to the Department's Buffalo office.

33. On July 9, 1986, Mr. Johnson sent the samples to Weston Consultants requesting each be analyzed for certain information. A constant chain-of-custody was maintained between the time Mr. Johnson shipped the samples and the time they were received by the laboratory. By memo dated July 15, 1986, Mr. Sciascia instructed the laboratory not to analyze samples 1B, 2 and 4 (the samples taken at greater depth at their respective locations). Weston's analysis of Sample Nos. 1A and 3, respectively, yielded TCE levels of 19 million, and 410 thousand micrograms per kilogram (or ppb).

As pointed out by Respondent, the record contains no information (neither documentation, nor specific recollection by a witness, nor a statement of the specific standard operating procedure) on where these samples were or how they were maintained from the time they were brought to the Buffalo office to the time they were sent to the laboratory the next day. However, because care was taken to prepare a chain-of-custody form for these samples, as well as care to properly maintain the empty sample containers from the time they were received to the time they were used in the field, it is inferred that there was some type of standard procedure which properly maintained sample custody, even though that procedure was not explicitly placed on the record (which would have obviated any questions on same). Other test results are not repeated herein because Staff did not cite them as being relevant to its contentions.

34. On October 27, 1987, the Department renewed Respondent's certificate to operate ("C.O.") an air contamination source for a vapor degreaser in the plating building, which authorized the release of 15,080 lbs. of TCE per year to the atmosphere. This C.O. had previously been issued in 1983 and may have been issued prior thereto since the renewed C.O. indicated an installation date of "12/75." The C.O. also indicated that per August 1987 correspondence from Respondent, Respondent had switched from using TCE to trichloroethane ("TCA").

35. In May, 1988, Mr. Sciascia requested that the Department's Division of Hazardous Waste Remediation reclassify the Site from Class "2A" to Class "2" in the New York State Registry of Inactive Hazardous Waste Disposal Sites (the "Registry"). His reasons for making the request were set forth in a "Detail/Justification" form and in a December, 1987 memorandum he addressed to Ms. Desmond (an attorney with DEE), copies attached hereto as Appendix E, "Site Classification Change Memoranda."

36. Based solely upon the statements Mr. Sciascia made in the May 1988 "Detail/Justification" form and the memorandum to Ms. Desmond (Appendix E), with the possible exception of one person who indicated he may have seen the Morrison Report and other documents, Department personnel, without further inquiry or verification of Mr. Sciascia's information, by signing a form (Appendix E, page 2), reclassified the Site to Class 2, a "significant threat to the public health or environment - action required", Registry Number 828065. The steps taken by individual DEC personnel members to reclassify this Site were not prescribed by any particular program methodology that had been reduced to writing. Here, the signatories essentially relied on Mr. Sciascia's representations and/or each other's signatures. It should be noted that Mr. Tramontano, the only non-DEC signatory, who signed on behalf of the N.Y. State Department of Health, concurred with what he perceived to be the Department's assessment of the Site being a significant threat to the environment, but did not have an opinion on whether or not the Site was a significant threat to human or the public health.

Analysis of Site Conditions (Plating Wastes):

37. The amount of wastes now on Site originating from plating operations is unknown, and no credible estimates exist.

In his reclassification recommendation, Staff's prime witness estimated that 965 cubic yards of sludge from plating operations had been collected in the lagoon system (i.e., the Building 101 Pond, Western Pond, and interconnecting ditch). However, he was unable to duplicate that estimate, arriving at a much smaller figure when he attempted to do so. The witness thereafter used scale drawings (including a vertical profile "flow diagram") from the Morrison Report of the Building 101 Pond, ditch, and what he interpreted to be the Western Pond, assumed that lines indicating a surface in the ponds represented sludge, and calculated from the diagrams' dimensions that 1660 cu. yds. of sludge were present.

There is nothing in the record which would provide a basis for the witness to assume that the diagram's lines indicating a surface on the ponds represented sludge. In addition, the Western Pond was not established to be the pond indicated on the diagram (FF 17). The 1660 cu. yd. estimate was not made until after the witness failed to duplicate his previous estimate. Also, in spite of the ALJ's August 11, 1989 Ruling which required disclosure in advance of the hearing of the basis for Staff's position that the Site constituted a "significant threat," (including expert opinions and data relied upon) the latter estimate was never disclosed until the hearing itself - indicating either the estimate was made at the last minute without much thought, or an attempt to avoid close scrutiny through surprise. None of the witness' estimates are credible.

No inference regarding amount of wastes on Site may be drawn from the number of years the ponds were used. It cannot be assumed the ponds were never cleaned of sludge buildup because a buildup could be expected to interfere with the ponds' ability to dispose of the 700,000 gallons of wastewater produced each day. In addition, the version of the Morrison Report introduced into evidence by Respondent indicated that periodic removal of sludge took place.

38. The ability for materials in plating operations wastes now on-Site to migrate has not been established.

Overland migration was not of concern. Staff's prime witness indicated little concern for an overland transport route. Since the Building 101 and Western Ponds were filled in 1975 (FF 27), and there are likely to be moderately permeable fine sands on the Site's surface extending to depth (FFs 9, 11), migration via runoff is contraindicated (i.e., any contaminants now present are buried, not exposed to runoff, and, if somehow such exposure were to occur, any mobile contaminants would be more likely to soak into the ground rather than be carried over the surface.)

In spite of a potential route for migration to groundwater (see FF 11) the record does not indicate whether the materials previously detected on-Site in 1973 (see FFs 16 and 21) currently exist in a state where they are capable of migrating under current conditions. The solubility of metals is strongly affected by the pH of their environment (generally decreasing with decreasing acidity). Precipitated (solid) metals will not migrate through the ground. The conditions that existed in 1973 no longer exist. The former Building 101 and Western Ponds no longer are replenished with plating effluents containing dissolved metals with widely varying pH. The ponds are buried, and are no longer exposed to the elements. The former source of high acidity which could make metals mobile (i.e., the plating effluents) has been cut off. There is therefore no reason to expect the condition of the metals to be the same now as it was in 1973 - making the old data of little value. Current information is essential to assess migration potential. Such data is lacking. No data on the current condition or quality of the plating wastes is in the record, nor is there any monitoring data in evidence to directly show that contaminants are moving.

39. The potential of plating operations wastes now on-Site to cause a particular level of contamination at, or an adverse effect on, an actual or reasonably foreseeable environmental receptor has not been established.

The record is devoid of a logical connection between wastes on-Site and any articulated potential adverse impact or contamination level. As noted in the Discussion above, Staff's assertions of why the Site was believed to be a "significant threat" were vague, though the thrust appeared to be that the wastes on-Site had the potential to harm the ground water supply. However, it was not demonstrated that wastes on-Site could even cause an exceedence of drinking water standards in the aquifer immediately below the Site, much less at an actual or reasonably foreseeable receptor, thus no potential use limitation may be inferred. In the absence of direct measurement of a contaminant concentration in the ground water, such a demonstration would require relating amounts on site to rate of migration via various routes to rate at which it is received by a receptor and rates at which it is diluted - in short, at least a rough model is required. No such analysis was set forth on this record. A possibility of "contamination" alone without indication of magnitude is insufficient to infer a potential for harm. The word "contamination" must be placed in context. "Contamination" to a degree is authorized by every SPDES permit. Here, for example, the Department specifically authorized Respondent to discharge 4 pounds of cyanide and a third of a pound of Cd to the ground water (and aquifer) per day (FF 25). Thus, it can't be assumed that the presence of harmful materials in permeable soils over an aquifer presents a reasonable possibility of harm. The amount of wastes on site might not be sufficient, or contaminants might not be released fast enough, or they might become too diluted, to produce a significant contamination level (or effect) elsewhere. More information than that presented here is required before inferences can be drawn on what harm, or level of contamination, the wastes on-Site have the potential to produce.

Analysis of Site Conditions (TCE):

40. Since at least the early 1970s, up until about 1987 (see FF 34), with the exception of perhaps 2 years (FF 29), Respondent used TCE at the Site at a rate of about 800-900 lbs./month (see FF 16) (or about 800-900 gallons per year, converting from lbs/mo per FF 43 method).

41. Trichloroethylene or "TCE," also known as trichloroethene, is a volatile colorless synthetic liquid used in industry to degrease metal and in cleaning fluids. It has a molecular weight of 131.40, specific gravity of 1.465, solubility in water of 1.366 grams per liter (at 25 degrees C) or 1.070 g/kg (at 20 degrees C), and vapor pressure of 74 mm Hg (at 25 degrees C) or 59 mm Hg (at 20 degrees C).

42. TCE can be toxic (i.e., adversely affect the structure or function of life, organs, tissues) to humans when inhaled, ingested or when in contact with the skin or eyes. Specifically it can induce or adversely affect the central nervous system (dizziness, drowsiness, slowed reaction time), heart function (arrythmia), and may also adversely effect kidney and liver functions. TCE's ability to produce health effects is dependant upon the duration and level of exposure. Animal studies indicate that TCE may also affect the blood system and the immune system. Chronic exposure can induce lung, liver and testicle tumors in laboratory mice and possibly can be associated with increased incidence of kidney tumors and leukemia in rats. The United States Environmental Protection Agency ("USEPA") has categorized TCE as an animal carcinogen and probable human carcinogen. The USEPA has established a health-based maximum contaminant goal for TCE of zero that communities should strive for because of its potential risk of cancer to humans. USEPA established a maximum contaminant level for TCE of 5 micrograms/liter for drinking water to minimize the risk of cancer and the other adverse effects of TCE that have been observed in laboratory animals. The New York State Department of Health ("NYSDOH") under the NYS Sanitary Code classifies TCE as a "principal organic contaminant" with a maximum contaminant level of 5 micrograms per liter (or 5 parts per billion).

43. The Department's Certificate to Operate (FF 34) authorized Respondent to vent to the atmosphere a quantity of TCE approximating or exceeding the total amount of TCE used on the premises.

Dividing the authorized 15,080 lbs/yr by 12 mo/yr results in about 1250 lbs/mo authorized -- more than the 800-900 lbs/mo used.

The above information may be converted to gallons per year to facilitate comparison to other information in the record. Based on the specific gravity of TCE (1.465) and the weight of a gallon of water from standard reference charts (8.3453 lbs), the weight of a gallon of TCE is 12.2258 lbs. Dividing the 15,080 lbs/yr TCE authorized for atmospheric release by TCE's weight per gallon indicates that Respondent was authorized to release the equivalent of approximately 1,233 gallons of TCE to the atmosphere each year -- more than the gallonage of TCE used.

44. Based on the manner in which TCE was used (FF 29), and the relative quantities of amount used and amount authorized for atmospheric discharge (FF 43), it is likely that the vast majority of TCE used on-Site was vented to the atmosphere by operation of Respondent's degreasers.

45. The 15-20 gallons per month that was routinely drained from Respondent's degreasers and either flushed out of Building 101 or later dumped down the drain or adjacent to Building 73, most likely contained 65 to 75% TCE.

This finding is based upon statements in a 1964 article "Vapor Degreasing" by the American Society for Metals Committee on Vapor Degreasing and Solvent Cleaning, which indicate that (1) when the oil content of the solvent in a degreaser reaches 25% by volume, the solvent should be replaced and the oily solvent reclaimed, and (2) that the degreaser may be used in a manner to recover its own solvent normally up to an oil content of 35%. Staff's prime witness alleged that the article was from a standard reference, a recognized reference in "the field" (undefined) that he had obtained while in school. It is not clear who ASM is. However, it will be presumed that the reference is reliable since Respondent did not object to its entry to the record because it wanted to move the administrative process along.

No weight is given to Respondent's conclusion that the drained material was only 30 to 40% TCE because it was purportedly based upon Respondent's waste processor's determination of percent recovery of "active product" (i.e., TCA) from the drained material. It was not established that the amount of "active product" which was actually recovered from the drained material was equal to the amount of "active product" actually present in the drained material. It is unreasonable to assume that 100% of the "active product" in a mixture would be recovered. The waste processor was not produced as a witness to explain either his analytical or solvent recovery methods. Because Respondent's witness' conclusions were based upon information of unknown reliability, they must be discounted. In addition, the "active product" at the time of the determination was TCA and not TCE. Although the relationship between the two chemicals was purportedly explained, it was not understood for the purposes of converting the TCA data to a TCE equivalence, and, thus, is given no weight.

46. Of the TCE in the degreaser liquid dumped on-Site, a portion would have volatilized to the atmosphere, and another portion would have become absorbed by the soil itself (adhering to the soil particles). If the amount percolating downward into the soil was sufficient to overcome the absorptive capacity of all the soil strata between the surface and the water table, as well as some volatilization along the way, it is conceivable that some TCE could have been directly introduced to the groundwater as a non-aqueous phase liquid (NAPL).

Since TCE is a volatile chemical (FF 41), it has to be expected that some would evaporate when dumped on the ground exposed to the atmosphere. As indicated by the sampling results (FF 33) TCE has been absorbed by the soil adjacent to Building

73. Although it is conceivable that TCE could reach groundwater if enough was dumped in a short enough period of time, there is no evidence of this having actually taken place. No one attempted to determine what the absorptive capacity of the soil could be.

47. The amount of TCE currently on Site is unknown and no valid estimates exist.

TCE concentrations reported from two soil samples taken near Building 73 (FF 33) are concentrations, not amounts. No theory was presented to permit an inference of amounts disposed of from the concentration numbers. The record contains no data reflecting the volume of soil that was contaminated. The samples taken were not representative of the Site since sampling locations were chosen to produce maximum contaminant levels (FF 32).

Estimates of the amount of TCE dumped on-Site as degreaser waste are not valid to indicate the amount of TCE currently on-Site due to TCE's volatility and the manner of disposal (dumped on the surface exposed to the atmosphere). No attempt was made to account for the chemical's volatility until after the issue was raised during cross-examination of Staff's prime witness. Two professional papers were offered to the record: "Mathematical Pollutant Fate Modeling of Petroleum Products in Soil Systems," by Marc Bonazountas, which appeared in a University of Massachusetts publication titled Soils Contaminated by Petroleum - Environmental and Public Health Effects; and "Transport and Fate of Selected Organic Pollutants in a Sandy Soil," by J. T. Wilson and others, which appeared in J. Environ. Qual. Vol. 10, no.4, 1981; respectively offered by Respondent and Staff.

The Bonazountas article estimated that, under certain assumed conditions, if a buried barrel of TCE leaked its entire contents over a period of 1 year, and the depth to groundwater was 10 meters (about 33 feet), after 10 years 96% of the original mass would have been volatilized, 2.3% would have been leached to ground water, and 1.6% would still remain in the soil column.

The Wilson article related an experiment wherein glass columns were packed to a depth of 140 cm (about 4 1/2 feet) with soil, and received 14 cm (about 5 1/2 inches) per day of a solution of 0.90 mg TCE per liter of water. The article reported that after the concentration of the compound in the column effluent reached a steady state (i.e., after the sorptive capacity of the soil for the compound had been saturated) approximately 58% of the material applied would be volatilized from the soil surface, 28% would pass through and be found in the column effluent and about 14% was thought to be degraded or otherwise not accounted for. A lower concentration of TCE in the influent resulted in greater percentage being volatilized.

It is debatable which of the above scenarios best represents the Site (although Wilson's 5 1/2 inches of rain per day over many days seems unlikely). What is not debatable is the fact that both articles illustrate the major role played by TCE's volatility in determining its environmental fate. Any conclusion regarding TCE's fate must somehow account for its volatility. Staff did not account for its volatility.

48. Although TCE absorbed into the soil on-Site could provide a source of contaminants to ground water located below, its potential to contaminate ground water to a degree that such water's usefulness as a current or future water supply, or to cause any adverse effect on an actual or reasonably foreseeable environmental receptor (via any route), has not been established.

Conclusions in the record that TCE at the Site has or could cause in the ground water an exceedence of the drinking water standard are not credible, appearing to be an exercise of intuition rather than logic. No analytical connection was made between the known facts and such a specific level. The discussion under FF 39 is equally applicable here and is incorporated by reference as if fully set forth.

CONCLUSIONS OF LAW ("CL")

Subject Matter Jurisdiction (All Causes of Action Alleged):

1. Pursuant to the Environmental Conservation Law, the Department has the jurisdiction to implement and/or enforce the statutes and regulations cited in the Complaint, except as noted in CL 9 below. Except as noted, none of the cited statutes or regulations require the Department to take any action it has not already taken as a prerequisite to the exercise of its authority.

Respondent's argument that valid regulations pursuant to ECL Article 27, Title 13, including a definition of "significant threat," are required before a hearing on such an issue may be held is rejected. ECL 27-1315 states in pertinent part that the "commissioner shall have the power to promulgate rules and regulations necessary and appropriate to carry out the purposes of ... [title 13]. Any such regulations shall include provisions which establish the procedures for a hearing pursuant to subdivision four of section 27-1313 ..." [bracketed material inserted]. Although it is clear that when implementing regulations are promulgated they must provide for hearing procedures, the statute does not require the promulgation of regulations as a prerequisite to Departmental action.

Personal Jurisdiction over the Respondent:

2. The Department has obtained personal jurisdiction over the Respondent to entertain all Causes of Action alleged herein. Respondent has appeared in this proceeding.

First Cause of Action - for Creation of an Inactive Hazardous Waste Disposal Site (as a significant threat) (ECL 27-1313(3)(a)):

3. The Site is an inactive hazardous waste disposal site as defined in ECL 27-1301(2), because it is an "area ... used for the long term storage or final placement of hazardous waste ... as to which area or structure no permit or authorization issued by the department or a federal agency for the disposal of hazardous waste was in effect after the effective date of this title." Spent TCE (a listed hazardous waste under 6 NYCRR 371.4(b)), is stored/placed in the ground on-Site adjacent to Building 73 (FFs 31-33). No permit is known to have been issued for the placement of the spent TCE.

Even though the valid regulatory list of hazardous wastes post dated most if not all of the disposal activities complained of herein, it is appropriate to use the current definition in conjunction with a remedial (i.e., Title 13), as opposed to a punitive, statute. The conclusion that the Site is an inactive hazardous waste disposal site is not based upon the former wastewater discharges to the old pond system. If the wastewaters constituted hazardous waste under the new definition (it is not clear which hazardous waste regulatory definition or list item Staff was relying upon regarding wastewater discharges), they eventually were the subject of SPDES permits and Orders on Consent that authorized discharges of such wastes to ground water (including a period before Respondent's new treatment system was implemented, see FFs 19, 20, and 25). Such authorization removes the wastewaters from consideration herein under either paragraph (2) [permitted disposal areas excluded from "inactive hazardous waste disposal site" definition] or (5) [solid and dissolved material in SPDES permitted industrial discharges excluded from "waste" definition], or both, of section 27-1301.

4. Respondent both owns the Site, and is responsible for the disposal of hazardous wastes thereon. Ownership was admitted by Respondent (FF 1). The disposal of spent TCE on the ground was a regular practice performed by Respondent's employees, including at least one person who served in a supervisory capacity, and was known by other members of Respondent's management (FFs 30, 31).

5. The record is insufficient support a conclusion that hazardous wastes on the Site constitute a significant threat to the environment because the potential for wastes on-Site to contaminate ground water to a degree that would impair the water's usefulness as a current or future water supply, or to cause an adverse effect on an actual or reasonably foreseeable environmental receptor (via any route), was not established.

Per FFs 39 and 48, too little is known about the amount and mobility of wastes on-Site, and their relationship to potential environmental receptors, to draw any conclusion on their potential to cause environmental harm.

Insofar as Staff may have posited that the mere possibility of groundwater contamination will support a "significant threat" determination, that position must be rejected as inconsistent with the law and Departmental policy. As noted in the discussion under FF 39, discharge of contaminants to the environment can be (and was here) legally authorized by the Department. Thus, the possibility of contamination absent consideration of potential degree cannot be deemed a "significant threat" without logical inconsistency.

Where environmental criteria have been promulgated to address certain concerns, they represent legislative determinations of what is or is not "significant" with regard to the concern. Staff cannot argue that a particular concern is a "significant threat" without at least demonstrating that the applicable criteria could be exceeded. Here, (per Discussion above) Staff's concern was over the ground water supply. Drinking water standards allow degrees of contaminants, including TCE, before conditions on water use are required. Since the potential of the wastes on Site to cause an exceedence of the applicable standard anywhere in the water supply was not demonstrated, Staff did not meet its burden of proof, even if one assumes arguendo that any impairment of the resource's usefulness as a water supply constitutes a "significant threat."

It should be noted that no threat to public health was demonstrated. As indicated by Mr. Tramontano's (from the NYS Dept. of Health) lack of an opinion thereon (FF 36), there is not enough information to conclude that the Site presents a significant threat to health. This is mentioned only because ECL 27-1305(4)(b)(2) "significant threat [etc.]" makes "public health" relevant to a Site's classification on the Registry. Public health, however, is beyond the scope of the determination requested here because ECL 27-1313 and Public Health Law 1389-b make the NYS Dept. of Health responsible for addressing health matters at inactive hazardous waste sites.

The precedential value of the Staff-cited Decision in Matter of Syracuse Die-Casting & Manufacturing Co., Inc., et. al., dated March 10, 1988, is limited to the factual record of that case -- a record which may or may not have been as detailed and probing of the significance of particular pieces of information as that here, and a record which involved a different environmental contaminant. That Decision did not intend to define "significant threat" in broad terms, but, rather, found a "significant threat" based on that particular record. The record here leads to a different result.

Staff's attempts to construe "significant threat" based on court decisions involving or construing federal environmental laws are rejected. Those laws are not being implemented here. Federal law contemplates that all hazardous waste deposits eventually be cleaned up (in the order of the National Priorities List), not just those that are a "significant threat." The legislative intent or purpose behind the federal laws is different from the New York State law involved here. It is misleading and confusing to the record to cite cases construing federal laws having a different legislative intent from the state law at issue here.

The Court of Appeals decision in the Matter of New York State Superfund Coalition, Inc. et al., v NYS Department of Environmental Conservation, 75 NY2d 88 (1989), which annulled the Department's 6 NYCRR Part 375 regulations that attempted to implement ECL 27-1313 and define "significant threat," provides some guidance in applying the concept here. The portion of the regulatory framework at issue therein provided in pertinent part:

"Upon a consideration of the findings of fact required by subdivision (b) of this section, the commissioner may determine that a significant threat to the environment exists when hazardous wastes at an inactive hazardous waste disposal site either actually or potentially: (1) violate any New York State environmental quality standard; (2) contaminate groundwater, surface water, flora, fauna or air; (3) pose a hazard to human health or the environment" (former 6 NYCRR 375.5(c), underline added).

The use of the word "potentially" caused a problem for the Court. "Inasmuch as hazardous wastes by statutory definition inherently suffer the potential to cause harms, their mere presence would automatically support a "significant threat" determination under any of the 6 NYCRR 375.5(c) factors in contravention of the statutory qualification, both substantively and procedurally." (id. at 93). "Here, the DEC regulation would allow remedial programs to be ordered for all inactive hazardous waste disposal sites, not just those which pose a "significant threat" as targeted by the Legislature ..." (id., at 94). Thus, the court annulled the regulation. From this decision, it is clear that something more than mere potential to cause harm is required before a "significant threat" may be found. Unfortunately, there was no reason for the Court to go beyond this to actually define "significant threat." In the instant matter, however, even a potential for harm was not established because of a failure to logically relate the current condition of the wastes on-Site to specific feared consequences.

6. Staff's citation in its pleadings of alleged facts, and general conclusion that they represented a "significant threat" to the environment, without specifically articulating the consequences that Staff feared might flow from such facts, and why, essentially deprived Respondent of useful notice of what it was to defend itself against. Insofar as the "significant threat" allegations were perceived to allege a threat to the drinking water supply, notice is considered adequate for that issue. Notice was inadequate for any other potential environmental harm.

The rationale for this Conclusion is set forth in the Discussion section above.

7. Respondent's renewed motion for Summary Judgement is now moot.

Second Cause of Action - disposal of hazardous waste without a permit or authorization (ECL 27-0913(1), 27-0914(2)):

8. Respondent regularly (approximately once per month) disposed of material (by dumping drainings from its vapor degreaser next to Building 73) that is currently listed as a hazardous waste (spent TCE, listed at 6 NYCRR 371.4(b) waste number F001) during the 1980 through October, 1984 period alleged in the Amended Complaint (see FFs 30, 31), apparently without a permit (CL 14 below).

9. However, during the alleged 1980 through October, 1984 period, no valid regulations defining or listing hazardous wastes existed. For that reason, the Second Cause of Action must fail.

ECL 27-0903 "Identification and listing of hazardous waste," subdivision 1, requires the promulgation of regulations that would both list hazardous wastes and identify hazardous waste by characteristic. The provision stated in pertinent part "The list of hazardous wastes and the identification of hazardous waste by characteristic shall determine those hazardous wastes which shall be subject to this title." (emphasis supplied). Such language makes it clear that not all hazardous wastes were to be subject to the title, but only those appearing on the list or having the promulgated characteristic. The legislature had not already determined, for enforcement purposes, what was or was not an hazardous waste by its definition thereof at ECL 27-0901(3), but, rather, wanted the Commissioner to do so before enforcing Title 9. Such intention was reiterated in ECL Article 71, Title 27 - "Enforcement of Article 27," at ECL 71-2702, which, in essence, defines for enforcement purposes "Hazardous wastes" to be the wastes identified or listed in the regulations promulgated pursuant to ECL 27-0903. For whatever reason, no valid regulations defining and/or listing "hazardous waste" existed until 1985 - after the time complained of herein. Thus, at the time of the dumping incidents, Respondent was not dumping regulated "hazardous waste" because that term had not yet been defined for enforcement purposes and, therefore, could not have violated the ECL Title 9 provisions charged herein.

A more detailed analysis of this issue was previously made in the Rulings dated August 11, 1989 (Appendix D attached hereto) on pages 7 through 11, which analysis is incorporated herein by reference as if fully set forth.

Third and Alternative Cause of Action (operation of a solid waste management facility without a permit pursuant to 6 NYCRR 360.2(b)):

10. The material that was drained from the degreaser and dumped next to Building 73 during the alleged 1980 through October, 1984 period was "solid waste" as that term was defined under ECL 27-0701(1), since it was rejected spent material (see FFs 29, 30).

11. The regular draining of the degreaser, carrying of its contents, and dumping of same on to the ground next to Building 73 as described in FF 30, was systematic transportation and disposal of solid waste, and, thus, was "solid waste management" as defined by ECL 27-0701(3).

12. The ground adjacent to Building 73 which received the discarded contents of the degreaser was a solid waste management facility within the definition of that term provided at ECL 27-0701(2) because it was used as a repository and final resting place for the waste.

13. The disposal of degreaser contents onto the ground was "operation" of the solid waste management facility found above.

14. Respondent was responsible for operation of the aforesaid solid waste management facility.

Respondent admitted ownership the Site (FF 1). The disposal of the degreaser's contents on the ground was a regular practice of Respondent's employees, made with the knowledge, acquiescence and occasional participation of Respondent's management personnel (FFs 30, 31).

15. The Respondent did not have a permit which allowed disposal of degreaser contents onto the ground.

Although Staff's prime witness claimed he searched Departmental records and found no permit for a solid waste management facility at the Site, it was never established that he had custody of such documents, was otherwise qualified to perform a search of the documents, or that the search was performed in a diligent manner. Thus, the witness' having been unable to find a permit does not establish that one did not exist. However, if a permit for the activity existed, it would be a complete defense to the cause of action. Respondent did not allege that it had a permit for such activity, though it produced a number of other permits. On that basis it is concluded that the activity was unpermitted.

16. Respondent operated a solid waste management facility without a permit, and thus violated 6 NYCRR 360.2(b), by dumping the spent solvent from the degreaser on the ground adjacent to Building 73 without a permit from the Department to do so.

17. Pursuant to ECL 71-2703(1), Respondent's violation of 6 NYCRR 360.2(b) makes it "liable for a civil penalty not to exceed two thousand five hundred dollars for each such violation and an additional penalty of not more than one thousand dollars for each day during which such violation continues, to be assessed by the commissioner after an opportunity to be heard pursuant to the provisions of section 71-1709 of this chapter ..."

18. The instant hearing afforded Respondent the opportunity to be heard, thus the Commissioner is empowered to assess a penalty against Respondent.

19. Pursuant to ECL 71-2703(1), the allegations of the Complaint and its prayer for relief, and the Findings of Fact herein, the Commissioner is authorized to assess a maximum penalty of $8,500.

The relevant paragraphs 8 and 9 of the Complaint (Appendix A) ostensibly overlap and allege the same occurrences - 7 instances of disposal of spent TCE onto the ground during the 1980 through October 1984 period. Findings of Fact 29 and 30 support a Conclusion that such dumpings occurred at least 7 times. The Complaint alleged the dumpings as one violation, therefore authorizing a $2,500 penalty for the first occasion and $1,000 for each of the remaining 6 occasions alleged.

20. The necessity or appropriateness of requiring Respondent, pursuant to ECL 71-2727, to take remedial measures was not demonstrated on the record herein.

Admissibility of Testimony of Messrs. Schmidtka and Foreman:

21. The testimony of Messrs. Schmidtka and Foreman was properly admitted in this proceeding since it was not demonstrated to be the product of an illegal search.

Respondent has contended that the testimony of witnesses Foreman and Schmidtka should be stricken pursuant to the exclusionary rule.

This tribunal obviously cannot issue a binding determination on a matter of Constitutional Law since such determinations are beyond the jurisdiction of this Agency. Nevertheless, as the NY State Court of Appeals made clear in Matter of Finn's Liquor Shop, supra, this Agency must conduct its activities in accordance with Constitutional requirements, or risk reversal of its decisions. In light of the Court's holding, it is prudent to examine the question for the purposes of protecting the record herein and the integrity of Agency decisions that may ultimately be based thereon.

In support of its position, Respondent pointed out: that personnel records were among the items listed on the search warrant; the investigator questioned employees and took down names and addresses during the search; eleven days later the investigator appeared at the home of Mr. Schmidtka; Schmidtka gave the investigator Foreman's name; the investigator admitted he "could have" obtained Schmidtka's name from Mr. Kummerow; and that Kummerow testified his only contact with the investigator after the search was just before the hearing commenced. Respondent argued that Officer O'Brien's testimony that he did not search personnel records was incredible in light of records being listed on the warrant; that the "inevitable discovery" exception to the exclusionary rule cannot be applied to "primary evidence" (the evidence obtained during the illegal search) per People v Stilth, 69 NY2d 313 (1987); that it wasn't even necessary to look at primary versus secondary or derivative evidence per People v Parris, 136 AD2d 882, 883-884 (4th Dept., 1988); and that if the inevitable discovery rule did apply, Staff did not prove by a "high degree of probability" that the witness' identities would inevitably have been discovered. (None of the several cases cited in Respondent's closing brief dealt with suppression of a witness' testimony).

As it did previously, Staff claimed the exclusionary rule does not apply in "these civil proceedings." Staff went on to assert if the rule did apply, that Respondent's reliance on the warrant's wording is misplaced because the warrant's return did not list employment records or names among the items seized, that such information was not suppressed under the Court's order, and (without reciting facts but merely citing certain pages in the transcript) that Staff "inevitably discovered" the names of the former employee witnesses during subsequent inquiry into site conditions. (A review of the cited pages does not reveal any discovery of the witness' names, but, rather, Officer O'Brien's inability to remember how he got the names.)

Respondent did not demonstrate that discovery of the witness' identities was causally connected to the illegal search. On examination, O'Brien clearly could not recall how he had obtained the witness' names. He did not remember seeing personnel records and believed he would have remembered such if he had. His testimony coupled with the fact that personnel records were not on the list of items seized, makes it unlikely that the witness' were identified through such records. Officer O'Brien's "could have" statement coupled with his appearance on Schmidtka's doorstep 11 days later is not substantive enough to support an inference that he obtained Schmidtka's name from Mr. Kummerow during the search.

Assuming arguendo that the witness' identification can be causally linked to the investigator's conversations with employees during the course of the search, such does not require exclusion under the rule. Not all evidence is the "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. "Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun v US, 371 US 471, 487-88 (1963). The employees spoken to are not the Respondent. The employees' knowledge of current or former co-workers is not the property of the Respondent. If Schmidtka's and Foreman's existence was discovered through conversations with employees, the information came not from the search of Respondent or its effects, but from third parties, thus the illegality was not exploited. Furthermore, even if the names of the witnesses had been obtained directly from the Respondent, a bare finding that the identity of witnesses was learned by illegal means is insufficient to warrant exclusion. People v Dannic, 30 AD2d 679, 680 (Second Dept., 1968). The test is whether the illegality was instrumental in inducing the witness to testify or in affecting the substance of testimony. People v Stadd, 32 AD2d 940 (Second Dept., 1969). No illegality was exploited here.

Affirmative Defenses:

22. All of Respondent's alleged affirmative defenses have been dealt with in the course of making the Findings of Fact and Conclusions above, or the prior August 11, 1989 Rulings.

RECOMMENDATIONS

  1. Staff's motions to open the record to receive evidence obtained under an illegal search warrant, and certain rebuttal testimony, should be rejected for the reasons previously stated in the ALJ's original rulings thereon, attached hereto as Appendices B and C, and incorporated herein by reference as if fully set forth.
  2. The First Cause of Action should be dismissed.
  3. The reclassification of the Site to Class 2 should be rescinded since it was based on defective information.
  4. The Second Cause of Action should be dismissed.
  5. Respondent should be found to have violated 6 NYCRR Part 360.2(b), operating a solid waste management facility without a permit, by its having repeatedly disposed of the contents of a vapor degreaser onto the ground adjacent to Building 73 during the alleged 1980 through October 1984 period.
  6. A penalty of $4,250 (i.e., one half of the maximum authorized penalty) should be assessed for the violation. The reason that only half of the maximum is recommended is the fact that the Department had previously been informed by Respondent's consultants in 1974 that oil from the degreaser would be disposed of on the ground (i.e., dispersed on the Site's gravel roads to control dust, FF 23). Apparently neither the consultant nor the Department, in the past, perceived this practice as posing an environmental problem.

* * *

Appendices: A - Amended Complaint
B - ALJ Rulings August 11, 1989
C - ALJ Rulings September 19, 1990
D - Diagram of Site
E - Site Classification Memoranda

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