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Sand Lake, Town of - Decision & Order, March 2, 1993

Decision & Order, March 2, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Alleged Violations of Articles 17, 27 & 71 of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by the -

TOWN OF SAND LAKE
Rensselaer County

DECISION AND ORDER

DEC File No. R4-0378-86-04

RESPONDENT

WHEREAS:

  1. Pursuant to a Notice of Hearing and Motion for Summary Order issued on May 18, 1992, and adjournments duly taken, an administrative enforcement hearing was held before Administrative Law Judge ("ALJ") William J. Dickerson on September 29 and October 29, 1992 at the Department of Environmental Conservation's Region 4 Office, 2176 Guilderland Avenue, Schenectady, New York 12306. The Department Staff were represented at the hearing by Ann Lapinski, Esq., Assistant Regional Attorney. The Respondent was represented by the law firm of Whiteman, Osterman & Hanna (Philip H. Dixon, Esq., of Counsel).
  2. Upon review of ALJ Dickerson's Hearing Report (copy attached), I concur with its Findings of Fact and Conclusions except as otherwise noted below. The record establishes that the Respondent violated the conditions of its permit by failing to submit annual reports from 1982 to 1992 and by failing to install three monitoring wells or to submit a schedule for closure of the landfill and implementation of an alternative solid waste plan by July 1, 1992. However, contrary to the conclusion reached by the ALJ, I further find that the landfill is contributing to the contravention of ground water standards.
  3. The ALJ found the testimony presented by Staff witness Theodore Robak to be insufficient to establish that the landfill is causing or contributing to an exceedance of groundwater standards because it did not provide the location of the groundwater wells from which samples were taken, the results of sampling other wells and the relationship of all of the wells to the landfill. However, it is undisputed that Mr. Robak testified as an expert witness and that the bases for his conclusions, principally the laboratory analysis of groundwater sampling, are incorporated into this record. Under these circumstances, any concerns about whether he could properly reach the conclusions that he did needed to have been raised by the Respondent. There is no other evidence in the record which contradicts Mr. Robak's conclusions nor any basis whatsoever to suggest that the concerns about well location were not already taken into account when Mr. Robak reviewed the well data and formed his expert opinion. Where the subject matter is of such a technical nature that the proper conclusions to be drawn from the facts depends upon professional or scientific knowledge or skill, qualified experts may express their opinions as to the proper inference to be drawn from a given set of facts (see Richardson On Evidence, 10th Ed., Jerome Prince, 1973, 367). Under these circumstances, the record cannot support ALJ Dickerson's conclusions and accordingly I find that the record demonstrates that the subject landfill is causing or contributing to a contravention of groundwater standards.
  4. The penalty requested by Staff is well below the maximum penalty authorized by law, particularly in light of my conclusion that the charges brought under ECL 17-0301 are to be confirmed. With respect to the charges that are confirmed, the Respondent has not demonstrated that there are any mitigating factors other than those already taken into account by the Staff.

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

  1. Respondent shall comply with the following schedule unless the schedule is subsequently modified by Department Staff as closure progresses:
    1. within 30 days of receipt of this order the Respondent shall cease acceptance of waste at its landfill;
    2. within 60 days of receipt of this order the Respondent shall grade the site to drain and shall place 12 inches of intermediate cover on the landfill;
    3. Respondent is ordered to prepare and submit to the Department for approval, a plan for a site investigation (Closure Investigation Plan) which includes the elements set forth in 6 NYCRR 360-2.15(a);
    4. within 60 days of the date of written approval of the Closure Investigation Plan, the Respondent shall conduct a site investigation and shall submit a Closure Investigation Report to the Department which must include all the elements set forth in 6 NYCRR 360-2.15(a);
    5. within 60 days of receipt of written approval of the Closure Investigation Report, the Respondent shall submit a plan to the Department for closure of the landfill (Closure Plan), the Plan must include the elements set forth in 6 NYCRR 360-2.15;
    6. within 200 days of receipt of written approval of the Closure Plan the Respondent shall complete closure of the landfill; and
    7. within 60 days of completion of closure the Respondent shall submit an engineer's certification to the Department in accordance with 6 NYCRR 360-2.13(t).
  2. Respondent is found to have violated the conditions of its permit on ten occasions by failing to submit annual reports as required and on an additional occasion by failing to either install three monitoring wells or to submit a schedule for closure of the landfill and implementation of an alternative solid waste plan by July 1, 1982. Respondent is assessed a civil penalty of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) for each of these eleven violations of its permit conditions. The penalty of TWENTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($27,500) shall be due and payable sixty (60) days after the service of a conformed copy of this Order on the Respondent.
  3. Respondent's landfill is found to be contributing to the contravention of groundwater standards established by ECL 17-0301 and 6 NYCRR Part 703. Respondent is hereby assessed an additional penalty for this violation of ECL Article 17 Title 3 of TWENTY FIVE THOUSAND DOLLARS ($25,000) to be due and payable sixty (60) days after the service of a conformed copy of this Order on the Respondent.
  4. The charges concerning violations of Special Conditions 6 and 9 of the 1981 permit are dismissed.
  5. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 4, 2176 Guilderland Avenue, Schenectady, New York 12306.
  6. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING,
COMMISSIONER
Albany, New York

Dated: March 2, 1993

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Alleged Violations of Articles 17, 27 & 71 of the New York State Environmental Conservation Law and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,

by

the TOWN OF SAND LAKE
(Rensselaer County)
RESPONDENT

Case No. R4-0378-86-04

HEARING REPORT

PROCEEDINGS

Pursuant to a Notice of Hearing and Motion for Summary Order issued on May 18, 1992 to the Town of Sand Lake, Rensselaer County, (the "Respondent"), by the Department of Environmental Conservation (the "Department") through its Region 4 Office, an administrative enforcement hearing was scheduled for 9:00 AM on June 10, 1992 at the Department's Region 4 Office, 2176 Guilderland Avenue, Schenectady, New York 12306. Following a Ruling denying the Motion for Summary Order issued on June 12, 1992, and pursuant to adjournments duly taken, the administrative enforcement hearing on this matter was convened before Administrative Law Judge William J. Dickerson at 10:00 AM on September 29, 1992 and continued on October 29, 1992 at the Department's Region 4 Office, 2176 Guilderland Avenue, Schenectady, New York.

The Respondent submitted a Memorandum of Law and two Affidavits in Opposition to the Motion for Summary Order on May 27, 1992. On June 12, 1992, the Administrative Law Judge issued a Ruling finding issues of fact concerning the alleged violations, denying the Motion for Summary Order and scheduling a hearing on the issues. An Amended Notice of Hearing which also constituted an amendment of the complaint was issued by agreement of counsel for the Department Staff and the Respondent on September 22, 1992. Reply briefs were received on November 24, 1992 and the record was closed on that date.

The Department Staff were represented at the hearing by Ann Lapinski, Esq., Assistant Regional Attorney. The Respondent was represented by the law firm of Whiteman, Osterman & Hanna (Philip H. Dixon, Esq., of Counsel).

The Charges

The Department Staff have alleged that the Respondent has operated its landfill in violation of its permit and that the Respondent's landfill is contributing to the contravention of groundwater quality standards established by the Department pursuant to Environmental Conservation Law ("ECL") 17-0301. The Department Staff claim that the Respondent failed to submit annual reports, did not provide grass cover over areas of the landfill which had been dormant for at least six months, failed to retain leachate on site, and did not install monitoring well results or submit a schedule for closure of the landfill and implementation of an alternative solid waste plan all in violation of the permit conditions.

Relief Sought

The Department Staff request an Order be issued which:

  1. directs the respondent to cease acceptance of waste within 30 days and within 3 months of issuance of the Commissioner's Order, institute closure of the Respondent's landfill in accordance with 6 NYCRR 360-2.15;
  2. assesses a civil penalty in the amount of Seventy-five thousand dollars ($75,000).

The Department Staff seek the following schedule of compliance:

  1. Within 30 days of issuance of the Commissioner's Order, the Respondent shall cease acceptance of waste at its landfill.
  2. Within 60 days of the Commissioner's Order, the respondent shall grade the site to drain and shall place 12 inches of intermediate cover on the landfill.
  3. Within 60 days of the date of written approval of the CIP ("Closure Investigation Plan"), the Respondent shall submit a Closure Investigation Report ("CIR") to the Department.
  4. Within 60 days of receipt of written approval of the CIR, the Respondent shall submit a Closure Plan ("CP") to the Department.
  5. The Respondent shall complete closure of the landfill within 200 days of receipt of written approval of the CP.
  6. Within 60 days of completion of closure, the Respondent shall submit to the Department an engineer's certification in accordance with 6 NYCRR 360-2.13(t).

The Answer

The Respondent filed a Memorandum of Law in Opposition to the Motion for Summary Order with accompanying affidavits. Portions of these affidavits became moot after the Amended Notice of Hearing was issued. The Respondent's basic position is set forth below.

Summary Position of the Department Staff

The Department Staff claim that the Respondent violated the conditions of its permit because the Respondent did not submit annual reports to the Department, allowed leachate to travel off-site and did not provide adequate grass cover. The Staff also claim that the Respondent did not properly install wells or submit a closure plan. The Staff further contend that the Respondent's landfill is contributing to the contravention of groundwater standards, that the "1988 Regulations" apply, that closure of the landfill is necessary and the requested closure schedule is reasonable. The Department Staff seek a penalty of $75,000.

Summary Position of the Respondent

The Respondent alleges that the Department Staff wrongfully informed the Respondent in 1985 that the Respondent did not have a permit and now claims that the Respondent violated the terms of that permit. The Respondent claims the alleged violations of the permit are of such a de minimis nature that they do not provide a reasonable basis for revoking the permit and requiring immediate closure. The Respondent argues that the permit revocation standards of 6 NYCRR 621.4 apply and that those grounds must be demonstrated by the Department. The Respondent claims that its proposed phased closure of the landfill is the most appropriate course because the Department's proposed schedule would have the Town cease accepting all waste immediately but final closure would not be completed for two years and would require that use of large amounts of clean fill to bring the landfill to final grade. The Respondent further claims that the immediate installation of 12 inches of intermediate cover would decrease the effectiveness of the gas venting layer that would ultimately be placed above the intermediate cover. The Respondent also claims the penalty sought by the Department Staff is wholly inappropriate and, even if it were appropriate for the landfill to close, because of the reliance of other communities on the landfill, some period of time for making alternate arrangements is necessary.

FINDINGS OF FACT

Background

  1. The Respondent, the Town of Sand Lake, Rensselaer County, was issued a permit to operate a solid waste management facility (sanitary landfill) on May 11, 1981 (Permit No. 0859). A copy of the permit is appended to this report as Attachment No. 1. The permit had an expiration date of May 11, 1984.
  2. The Respondent made a timely application to renew its permit. The Respondent was notified on October 25, 1985 that the Department could not issue a new permit but was never notified of the right to a hearing. The Respondent and the Department Staff agree that the permit issued on May 11, 1981 was continued in effect pursuant to 401(2) of the State Administrative Procedures Act upon submission of the renewal application.
  3. The Respondent operates a landfill on land that it leases on Chamberlain Road, Rensselaer County. The exact size and location of the landfill is not clear based on the record. The permit issued on May 11, 1981 (Exhibits 9 and 12) indicates the landfill is located in the Town of Sand Lake. The affidavit of Department Staff witness Elston states the landfill is located on Chamberlain Road in the Town of Petersburg (Exhibit 10). The landfill initially had a total useable area of 35 acres. As of May 10, 1984, the useable area was about 25 acres (Attachment 2 of Exhibit 12). According to Respondent's witness Primeau, the landfill area is approximately 20 acres (Transcript, page 73). The landfill does not have a liner.
  4. The landfill was inspected 21 times by Department personnel from July 1, 1981 through March 11, 1992. Only the reports of inspections on May 16, 1983 and December 14, 1983; indicate that the facility inspection report "item 20 Operation Permit conditions are being violated (List violations)" were marked with an "X". The May 16, 1983 inspection report notes: "No annual report." The December 14, 1983 inspection reports notes: "Monitoring wells not installed as yet." Department Staff witness Elston inspected the landfill on April 19, 1988; July 27, 1988; November 17, 1988; February 25, 1991; August 29, 1991 and March 11, 1992.

The Charges

1. Alleged Violation of Permit Condition No. 3 Failure to submit annual reports.
  1. Special Condition 3 of the 1981 permit reads: "Annual Report - a report, covering the items listed on the enclosed form, shall be submitted to the Department annually. The annual report period will end on the anniversary date of the permit, and the report shall be submitted to the Department within 30 days after the end of the report period."
  2. There is no record of any annual reports submitted by the Respondent in the Department's Regional or Central Office files. The report of inspection on May 16, 1983 notes: "No annual report."
2. Alleged Violation of Permit Condition No. 6 Did not provide adequate grass cover.
  1. Special Condition 6 of the 1981 permit reads: "Grass cover - Provide grass cover for any intermediate areas which lie dormant for period of over 6 months."
  2. The reports of inspections on December 9, 1981, May 16, 1983; December 14, 1983; May 16, 1984; July 5, 1984; November 8, 1985; February 25, 1991 and March 11, 1992 indicate that the facility inspection report "item 8 intermediate or final cover is not in place or properly applied" had been marked with an "X". The inspection reports do not indicate whether intermediate or final cover was the subject of the notation or whether the cover was not in place or was not properly applied.

    [ALJ Note: 6 NYCRR 360-1.2(b)(84) reads: "intermediate cover" means a compacted layer of at least 12 inches of cover material placed where no additional solid waste has been deposited or will be deposited within a period of 30 days. 6 NYCRR 360-1.2(b)(58) reads: "final cover" means a layer of material that is placed on any surface of a landfill where no additional solid waste will be deposited within one year and serves to restrict infiltration, support vegetation, control landfill gas, and promote surface drainage.]

  3. The reports of inspections on May 16, 1984; July 5, 1984 and October 24, 1984 indicate that the facility inspection report "item 10 vegetative cover is missing or inadequate on completed areas" had been marked with an "X". As noted above, Department Staff witness Elston inspected the landfill on April 19, 1988; July 27, 1988; November 17, 1988; February 25, 1991; August 29, 1991 and March 11, 1992. None of the 6 reports of the landfill inspections made by Department Staff witness Elston indicate that either item 10 vegetative cover is missing or inadequate on completed areas or item 19 Operation Permit conditions are being violated were marked with an "X". Department Staff witness Elston testified that "there essentially were no completed areas at the landfill." (Transcript page 21). Mr. Elston also testified that the far northern area of the landfill had been inactive for more than six months and that he visited the site on a routine basis (Transcript page 16) without making a full inspection (Transcript page 25). Mr. Elston did not state when the area had been inactive for more than six months or when he observed that grass cover had not been provided. Respondent's witness Primeau testified that there are portions of the landfill which do not have grass (Transcript, page 74). One area is a one half acre portion of the northern part of the landfill which is now ready for final cover. The other area is in the center of the landfill which has trees and other vegetative growth but has not been planted with grass. Mr. Primeau did not state how long the fringe area had been dormant or if the center of the landfill had received waste material.
3. Alleged Violation of Permit Condition No. 9 Allowed leachate to travel offsite.
  1. Special Condition 9 of the 1981 permit reads: "If any leachate is generated on site by landfill operations, it shall be retained on site unless a State Pollution (sic) Discharge Elimination System permit is obtained."
  2. The March 11, 1992 inspection report contains this comment "Took 2 surface water samples from leachate discharge along toe of slope". 13 of the inspection reports mention the presence of leachate at the landfill but there are no reported observations of leachate leaving the site. The Respondent's consultant geologist observed a small amount of leachate in the northwestern corner of the landfill on June 3, 1992. There is no evidence or testimony in the record to establish that leachate has left the site.

    [ALJ Note: 6 NYCRR 360-1.2(b)(141): "site" means the geographically contiguous property of a solid waste management facility and includes at a minimum the land area of that facility and its access roads, appurtenances, and land buffer areas.]

4. Alleged Violation of Permit Condition
No. 13 Did not properly install wells; Did not submit a closure plan.
  1. Special Condition 13 of the 1981 permit reads: "On or before July 1, 1982, perform one of the following items:
    1. Install a minimum of one upgradient and two downgradient monitoring wells. The Town must confer with this office about the location and construction of these wells. The Town shall have an approved laboratory perform the Baseline Scan on groundwater quality (See attached sheet) thirty days after well installation. After this, the Town should have sampling performed by an approved laboratory within 15 days of October 1 and April 1 using the Indicator Scan. If the Department determines that significant contamination exist, additional testing may be required.
    2. Submit a schedule for closure of the landfill and implementation of an alternative solid waste plan which will provide for closure of the landfill by the expiration date of the permit."
  2. The monitoring wells had not been installed as of the inspection by Department personnel on December 14, 1983. The report of the inspection conducted on May 16, 1984 indicates that the monitoring wells have been installed and preliminary testing done although the results of testing had not been completed as of that date. The affidavit of Department Staff witness Elston states that the monitoring wells were installed as required and a baseline scan was conducted in 1985. A report of an analysis of four samples, received on May 7 and 8, 1985 by Bender Hygienic Laboratory from the Town of Sand Lake Landfill, was dated June 6, 1985 (Exhibit 13). There is no testimony or other evidence when that report of analysis was submitted to the Department. The Respondent has not continued to provide the biannual monitoring data. There is no evidence that a schedule for closure of the landfill and implementation of an alternative solid waste plan which would have provided for closure of the landfill by May 11, 1984 was ever submitted by the Respondent. A draft closure investigation plan has been submitted to the Department but has not been approved by the Department. The date of submission of the draft closure investigation plan is not known.
5. Alleged Contravention of Groundwater Standards.
  1. Eight monitoring wells were drilled by the Respondent at the landfill in August 1992. Samples were taken from the wells by the Respondent's engineer on August 28 and 31, 1992 and a full base line analysis of over 100 substances was performed on each of the samples. The results of this sampling and analyses were provided to the Department on September 10, 1992. The reports of the analyses of those samples were not submitted for the record of this hearing.
  2. Based upon his review of those results, Department Staff witness Robak concluded that the landfill is contributing to the contravention of groundwater standards. Mr. Robak provided a list of concentrations of selected substances from 6 wells which purport to be in excess of the standards. Mr. Robak did not present any testimony concerning the analyses from the wells, the location of the eight wells or the relationship to the landfill of the six wells in which the substances on the list were detected. There is no information in the record of the results of the analyses for other substances in the samples from the six wells or any information concerning the other two wells.

Relief
Closure Considerations

  1. A draft closure investigation plan has been submitted to the Department but has not yet been approved. The installation of 12 inches of intermediate cover as requested by the Department Staff would decrease the effectiveness of the gas venting layer proposed for the landfill in the closure plan submitted to the Department. Placing of interim cover would not provide an effective leachate control mechanism. The most effective leachate control mechanism would be the construction of a clay cap or some other impervious material as part of final closure. Bringing the landfill up to grade with steeper slopes would increase the amount of runoff and decrease the amount of precipitation that would infiltrate the refuse or the cap in the future. Interim measures to minimize any impact from contamination of groundwater or surface water while solid waste was used to bring the landfill closer to final contours include regrading and development of surface runoff structures which would help convey precipitation and runoff away from the landfill face. The Respondent's engineering consultant opined that 90 days for submittal of the closure investigation report and the closure plan would be more appropriate than the 60 days requested by the Department Staff. The estimated cost of closure of the landfill is approximately $2.1 million.

CONCLUSIONS

  1. The Respondent failed to submit annual reports from 1982 to 1992 as required by Condition No. 3 of its permit which was issued on May 11, 1981.
  2. The Department Staff witness conducted inspections of the Respondent's landfill on 4/19/88; 7/27/88; 11/17/88; 2/25/91; 8/29/91 and 3/11/92. The intervals between these inspections were 3 months, 4 months, 26 months, 6 months and 6 months respectively. Although the Department Staff witness testified he visited the landfill routinely, he did not testify when the northern area had been dormant, only that grass cover had not been provided in the northern area of the landfill. This is not sufficient to establish that the Respondent violated the terms of Permit Condition No. 6 as charged especially in view of the inspection reports which do not indicate any violation of permit conditions.
  3. There is no evidence that leachate left the site of the Respondent's landfill as the term site is defined in the regulations.
  4. Absent any evidence that a schedule for closure of the landfill and implementation of an alternative solid waste plan which would have provided for closure of the landfill by May 11, 1984 was ever submitted by the Respondent, the Respondent violated the terms of Permit Condition No. 13 by not submitting a schedule for closure or installing the three required monitoring wells by July 1, 1982. The fact that the required monitoring wells were installed by May 16, 1984 bringing the Respondent into compliance does not expunge the violation but only shows a willingness on the part of the Respondent to comply, albeit belatedly.
  5. The conclusion of the Department Staff witness that the landfill is contributing to the contravention of groundwater standards is not sufficient to establish that the landfill is the cause of the exceedances of the groundwater standards without any information as to the location of the six wells, the results of the analyses from the other wells or the relationship of the wells to the landfill. Based on the selective results submitted by the Department Staff witness, one can infer that there is a problem at or in the vicinity of the landfill with respect to possible groundwater contamination but the nature, cause or extent of that problem has not been established. The Department Staff did not support its conclusion that the Respondent's facility caused or contributed to a violation of the groundwater standards.
  6. In view of the foregoing conclusions, the Respondent was in violation of the terms and conditions of its permit on December 30, 1988. The revised 6 NYCRR Part 360 regulations became effective on December 31, 1988. 6 NYCRR 360-1.7(a)(iii) pertaining to transition rules, reads in pertinent part as follows:

    "(iii) Existing facilities currently in violation. A facility constructed, operated, or closed in violation of the solid waste management facility regulations in effect on the day before the effective date of this Part is subject to the requirements of this Part as of its effective date. ..."

  7. The Respondent is subject to the Requirements of 6 NYCRR Part 360 which became effective December 31, 1988, especially 360-2.15 Landfill closure and post-closure criteria. Of particular concern in this case is the fact that the Respondent does not own the landfill site but operates the landfill as a leaseholder of the site. It is essential that measures be taken to assure that the landfill be properly closed in strict conformance with the provisions of 6 NYCRR 360-2.15.
  8. The Respondent violated Permit Condition No. 3 by failing to submit an annual report each year from 1982 to 1992. The failure to submit 10 annual reports constitute 10 separate violations of the permit condition. The Respondent violated Permit Condition No. 13 by failing to install three monitoring wells or a schedule for closure of the landfill and implementation of an alternative solid waste plan by July 1, 1992. Each violation of the permit conditions is subject to a maximum civil penalty of $2500 pursuant to Environmental Conservation Law 71-2703. The Respondent should be assessed a total civil penalty of $27,500 for each of the proven violations.
  9. The Respondent operates an unlined landfill. The only effective way to control leachate at the Respondent's landfill is by the installation of an impermeable cap and closure in strict conformance with the provisions of 6 NYCRR 360-2.15. The Respondent should be ordered to cease receiving solid waste at its landfill and commence closure of the landfill in strict compliance with the provisions of 6 NYCRR 360-2.15 within 90 days.
  10. The Respondent's claim that the Department Staff wrongfully informed the Respondent in 1985 that the Respondent did not have a permit is unfounded and misconstrues the letter from the then Regional Solid Waste Engineer which simply stated that the Department Staff were unable to grant a permit to operate. This is especially true in the face of the agreement between the Respondent and the Department Staff that the letter did not constitute a proper denial of the renewal application and that the terms of the 1981 permit were continued in effect pursuant to 401(2) of the State Administrative Procedures Act upon submission of the renewal application.

RECOMMENDATION

I recommend that an Order be issued that directs the Respondent to cease receiving solid waste at its landfill within 90 days, orders the Respondent to commence closure of the landfill in strict compliance with the provisions of 6 NYCRR 360-2.15 and assesses a penalty of $27,500 for each of the proven violations.

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

TO: Philip H. Dixon, Esq.
Whiteman, Osterman & Hanna, Esqs.
One Commerce Plaza
Albany, New York 12260

Ann Lapinski, Esq.
Assistant Regional Attorney
Region 4
NYS Department of
Environmental Conservation
2176 Guilderland Avenue
Schenectady, New York 12306

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