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Smith, Dexter - Decision and Order, February 16, 1994

Decision and Order, February 16, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations
of Environmental Conservation Law
of the State of New York (ECL)
Article 17 by

DEXTER K. SMITH
RESPONDENT

DECISION AND ORDER

DEC CASE No. R7-0732-92-07

WHEREAS:

  1. This Decision and Order is issued with reference to the Notice of Hearing and Motion for Summary Order dated December 20, 1993 regarding the captioned matter. The Region 7 Department Staff filed its motion with Administrative Law Judge Daniel P. O'Connell on January 3, 1994. The Respondent did not answer the Department's motion. The attached Ruling submitted by ALJ O'Connell with respect to the motion is accepted as my decision in this matter subject to my comments below.
  2. A Motion for Summary Order shall be granted if, upon review of all the papers and proof submitted, it is concluded the cause of action or a defense thereto is established as a matter of law [6 NYCRR 662.10(c) and CPLR 3212(b)]. Granting Summary Order does not deny the Respondent his right to a hearing where the record demonstrates there is no triable issue of fact relevant to the outcome of the case. In such a case, the determination through this means fulfills the requirement that a party be given an opportunity for a hearing [Crowley's Milk Co. v. Klein, 24 AD2d, (3d Dept 1965)]. Since the Respondent defaulted, the facts stated below are not disputed and are assumed true [John William Costello Associates, Inc. v. Standard Metals Corp., 99 AD2d 227, 472 NYS2d 325 (1984)]. The facts establish the Respondent's liability and the Department's entitlement to the requested relief as a matter of law.
  3. The Department's Affidavit of Service and the signed Domestic Return Receipt show the Respondent received notice of this enforcement action on December 24, 1993 in a manner consistent with 6 NYCRR 622.3(c).
  4. Based on the Discharge Monitoring Reports (DMRs) prepared by the Respondent, the Department established the Respondent exceeded the effluent limits of his permit as specified in the Ruling. The Department also established the Respondent did not file DMRs for 34 months.
  5. ECL 17-0803 prohibits the Respondent from discharging pollutants in a manner other than as prescribed by SPDES Permit NY-0231118. The conditions of the Permit also require the Respondent to file DMRs each month. Therefore, I conclude the Respondent violated ECL 17-0803 and the terms of SPDES Permit NY-0231118.
  6. In determining the appropriate relief, I have considered the circumstances of this matter as they are developed in the record and discussed in the attached Ruling.

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

  1. I partially grant the Department's Motion for Summary Order pursuant to 6 NYCRR 622.10.
  2. When the Department served the Motion for Summary Order, the Respondent had an additional 4 days to file the November 1993 DMR, and 35 days to file the December 1993 DMR. Consequently, the charges related to the Respondent's failure to submit DMRs for November 1993 and December 1993 are remanded to ALJ O'Connell for hearing.
  3. The thirteen discharges from the Respondent's Facility that exceeded the limits for pH, lead, antimony, cadmium, beryllium and surfactants during the months specified in the Ruling violate the terms of SPDES Permit NY-0231118 and ECL 17-0803. The Respondent's failure to file DMRs on 34 occasions are also violations of the terms of SPDES Permit NY-0231118 and ECL 17-0803.
  4. For the aforementioned violations, the Respondent, Dexter K. Smith, is assessed a total civil penalty of Twenty-seven thousand five hundred Dollars ($27,500). I assess $1,000 for each of the 8 violations resulting from the discharge of lead, antimony, cadmium and beryllium in concentrations greater than the effluent limits authorized in the Permit. I assess $500 for each of the 5 violations resulting from discharges exceeding the pH range authorized in the Permit and discharging surfactants in concentrations greater than the permitted limit. A larger civil penalty is assessed for the violations associated with discharging excess lead, antimony, cadmium and beryllium because the discharges containing these heavy metals have a toxic effect on the environment when the concentrations exceed the authorized limits. The Respondent is assessed $500 for each of the 34 violations associated with failing to file DMRs. The full amount of the assessed civil penalty ($27,500) shall be due and payable to the Department within 60 days after service of a conformed copy of this Order upon the Respondent.
  5. Within 90 days after service of a conformed copy of this Order upon the Respondent, Mr. Smith shall provide the Region 7 Department Staff with an approvable engineering report (the Report). The Report shall include a detailed plan and work schedule for upgrading the Facility so that discharges will meet the limits in SPDES Permit NY-0231118. The Region 7 Director shall have the discretion to determine whether the Report is approvable.
  6. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 7 Director, NYSDEC, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  7. The provisions, terms and conditions of this Order shall bind the Respondent, his 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
February 16, 1994

To: Dexter K. Smith
RD #3, Box 293
Binghamton, New York 13901

Thomas Coulson, Esq.
41 Riverview Avenue
Binghamton, New York 13904

Jennifer L. Powell, Esq.
Assistant Regional Attorney
NYSDEC-Region 7
615 Erie Boulevard West
Syracuse, New York 13204-2400

SUMMARY

After duly serving a Notice of Hearing and Motion dated December 20, 1993 upon Dexter K. Smith, the Department's Region 7 Staff moved for Summary Order as provided by 6 NYCRR 622.10 (effective prior to January 10, 1994). The Department showed Mr. Smith violated the terms of his State Pollutant Discharge Elimination System (SPDES) permit from December 1989 to October 1992 by exceeding effluent limits and by not filing Discharge Monitoring Reports. Although the Respondent did not answer the Motion, the charges related to filing the November and December 1998 DMRs should be remanded for hearing. Except for these two charges, the Commissioner should grant the Department's Motion for Summary Order.

PROCEEDINGS

The Department's Region 7 Staff (the Department) duly served a Notice of Hearing and Motion on Dexter K. Smith (the Respondent), and moved for Summary Order pursuant to 6 NYCRR 622.10 (effective prior to January 10, 1994). With a cover letter dated January 3, 1994, Jennifer L. Powell, Esq., Assistant Regional Attorney, Region 7, provided Administrative Law Judge Daniel P. O'Connell with a copy of the Notice of Hearing and Motion. Included with the Motion was an Affidavit dated December 20, 1993 by William F. McCarthy, Environmental Engineer II, Region 7. Attached as exhibits to Mr. McCarthy's affidavit were copies of the Respondent's State Pollutant Discharge Elimination System (SPDES) permit, monthly Discharge Monitoring Reports (DMRs) from the Respondent's Facility and the Division of Water Penalty Assessment Guidance document. Ms. Powell also filed a Memorandum of Law in support of the Motion for Summary Order.

The Department's motion papers contended the Respondent owns and operates a business called the Filter Cleaning Service located at the intersection of Route 12 and Willard Road in the Town of Greene, Chenango County (the Facility). The Department asserted it issued SPDES Permit NY-0231118 (effective December 1, 1989 to December 1, 1994) authorizing the Respondent to discharge treated effluent from the Facility to groundwater.

The Department alleged 49 separate violations of the terms of the Respondent's SPDES permit. According to the Department, the Respondent exceeded the permitted effluent limits for pH, lead, antimony, cadmium, beryllium and surfactants at various times from December 1989 to July 1992. Also, the Respondent allegedly did not file the required DMRs each month from August 1990 through May 1992 and from October 1992 through December 1993.

Relying on ECL 71-1929, and a document entitled, Division of Water Penalty Assessment Guidance, the Department requested a total civil penalty of $28,500 for the 49 alleged violations. The Department also asked for an Order from the Commissioner directing the Respondent to prepare and implement an approvable engineering report and plan to upgrade the Facility to meet the terms of the SPDES permit.

The Respondent did not answer the Department's Motion for Summary Order.

The record of the proceeding closed on January 27, 1994.

FINDINGS OF FACT

  1. The Department served the Notice of Hearing and Motion dated December 20, 1993 with supporting papers on the Respondent, Dexter K. Smith, by certified mail return receipt requested. The Respondent received the Notice of Hearing and Motion on December 24, 1993.
  2. From on or about December 1, 1989 to the present, the Respondent has operated a business called the Filter Cleaning Service located at the intersection of Route 12 and Willard Road in the Town of Greene, Chenango County (the Facility). On October 18, 1989, the Department issued SPDES Permit NY-0231118 effective from December 1, 1989 to December 1, 1994 (the Permit) to Filter Clean Service, Attention: Millard F. Clapper. The Permit authorizes the discharge of treated effluent from unspecified industrial processes at the Facility to groundwater.
  3. On May 4, 1990, the Department modified the Permit by changing the Permittee's name from Filter Cleaning Service to Dexter K. Smith. The Department did not change any effluent limits or other terms of the Permit.
  4. Dexter K. Smith's name and signature appear on the Facility's Discharge Monitoring Reports (DMRs) as the owner for monitoring periods December 1989, March 1990, April 1990, May 1990, June 1990, July 1990, June 1992 and July 1992.
  5. SPDES Permit NY-0231118 limits the pH of the effluent from 6.5 to 8.5 standard units. Based on monthly measurements, the pH of the effluent from the Facility was 9.0 standard units in December 1989, and 9.96 standard units in July 1990.
  6. The Permit limits the discharge of lead from the Facility to 0.05 milligrams per liter (mg/l). Based on monthly analyses of the discharge, the concentration of lead was 1.5 mg/l in December 1989, 0.10 mg/l in March 1990, 0.056 mg/l in April 1990, 0.14 mg/l in May 1990, and 0.051 mg/l in June 1990.
  7. The Permit limits the discharge of antimony from the Facility to 0.003 mg/l. Based on a monthly analysis of the discharge, the concentration of antimony was 0.005 mg/l in May 1990.
  8. The Permit limits the discharge of cadmium from the Facility to 0.02 mg/l. Based on a monthly analysis of the discharge, the concentration of cadmium was 0.075 mg/l in December 1989.
  9. The Permit limits the discharge of beryllium from the Facility to 0.003 mg/l. Based on a monthly analysis of the discharge, the concentration of beryllium was 0.03 mg/l in December 1989.
  10. The Permit limits the discharge of surfactants from the Facility to 1.0 mg/l. Based on monthly analyses of the discharge, the concentration of surfactants was 100.0 mg/l in December 1989, 2.2 mg/l in June 1992, and 8.3 mg/l in July 1992.
  11. While the Permit requires the Facility's operator to submit Discharge Monitoring Reports (DMRs) to the Department each month, the Respondent did not file DMRs from August 1990 through May 1992 and from October 1992 through October 1993 for a total of 34 missing DMRs.
  12. The discharge of lead, antimony, cadmium, or beryllium would have a toxic effect on the environment when the concentration of these compounds exceeds the effluent limits authorized in the Permit.

DISCUSSION

JURISDICTION OVER THE RESPONDENT

There are two questions about the Department's jurisdiction over the Respondent. First, since the Respondent did not answer the Department's Motion for Summary Order, there is a question about whether the Respondent had proper notice of this enforcement action. Second, there is also a question about whether the Respondent can be held responsible for any violations of the Permit that occurred between December 1989 and May 1990 because the Department originally issued the SPDES permit to the attention of Millard F. Clapper, rather than to the Respondent.

The Respondent received proper notice of this enforcement action. Section 622.3(c) provides for service of the Notice of Hearing and Motion for Summary Order by certified mail. Furthermore, when service is by certified mail, service is complete when the Motion for Summary Order is received. The Department's Affidavit of Service dated January 3, 1994 shows the Department mailed the Notice of Hearing and Motion by certified mail return receipt requested to Dexter K. Smith at RD #3, Box 293, Binghamton, New York 13901. The signed Domestic Return Receipt attached to the Department's Affidavit of Service shows the Respondent received the Notice of Hearing and Motion on December 24, 1993. Therefore, the Respondent received notice of this enforcement action in a manner consistent with 6 NYCRR 622.3(c).

Moreover, the Respondent had adequate time to respond to the Department's Motion for Summary Order. The Notice provided the Respondent with 20 days after receiving the Motion to file an Answer. As shown above, service of the Motion upon the Respondent was complete on December 24, 1993. Consequently, the Respondent's Answer was due by January 13, 1994. As of January 27, 1994, some 34 days after the Respondent received the Motion for Summary Order, ALJ O'Connell had not received either an Answer or a request from the Respondent to extend the time for filing an Answer.

The Respondent can be held responsible for any violations of the Permit that may have occurred between December 1989 and May 1990. Although the Department originally issued the SPDES Permit to Mr. Clapper's attention, the Respondent's name and signature appear as the owner on all the DMRs submitted with the Department's motion including those dated before May 1990. Since the Respondent did not provide any evidence to contradict the Department's proof, the information in the DMRs, including the identity of the business' owner, is true [John William Costello Associates, Inc. v. Standard Metals Corp., 99 AD2d 227, 472 NYS2d 325 (1984)]. Having identified himself as the owner of the Facility on the DMRs since December 1989, Mr. Smith is responsible for any violations of the Permit that may have occurred from December 1989 to the present.

MOTION FOR SUMMARY ORDER

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) 622.10 (effective before January 10, 1994), the Commissioner should grant a Motion for Summary Order if any Party's filings sufficiently establish the cause of action or the defense that would warrant the granting of Summary Judgement under the Civil Practice Law and Rules. The Commissioner should deny the Motion for Summary Order if the Respondent shows facts sufficient to require a hearing on any issue of fact. However, the existence of a triable issue of fact that is associated with relief, such as the amount of civil penalty, does not prevent the granting of the Motion.

Although each case is unique, there are some general guidelines about how to decide whether to grant summary judgement. First, a Motion for Summary Judgement is procedurally equivalent to a hearing [Crowley's Milk Co. v. Klein, 24 AD2d 920, 264 NYS2d 680 (3d Dept 1965)], and therefore does not deny the Respondent a hearing. Rather, the Respondent must prove there is a need for a hearing [D. Siegel, New York Practice, 407] by showing there are issues of fact for adjudication [Zolin v. Roslyn Synagogue 154 AD2d 369, 545 NYS2d 846 (2d Dept 1989); Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966, 525 NYS2d 793 (Ct App 1988)]. Conclusive allegations by the Respondent are not sufficient to raise issues of fact for adjudication [Freedman v. Chemical Construction Corp., 43 NY2d 260 (1977), Spearmon v. Times Square Stores, Inc., 96 AD2d 552, 465 NYS2d 230 (2d Dept 1983)].

Next, the Parties must submit supporting affidavits by persons with knowledge of the facts [CPLR 3212(b); S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 (1974)]. With a Motion for Summary Judgment, the court will accept the opposing Party's evidence and any evidence of the movant that favors the opposing Party as true [Weiss v. Garfield, 21 AD2d 156, 249 NYS2d 458 (1964)]. However, facts alleged by the movant that are not controverted by the opponent may be assumed to be true [John William Costello Associates, Inc. supra].

Finally, the judge must examine the Parties' submissions with the goal of finding issues, not determining them [Sillman v. Twentieth Century Fox F. Corp., 3 NY2d 395, 165 NYS2d 498 (1957)].

Since the Respondent did not answer the Department's Motion for Summary Order, there are no disputes about the Respondent's liability for all but two of the charges. These charges are discussed below and relate to the Respondent's failure to file DMRs for November and December 1993. An appropriate civil penalty can be determined for the proven violations, and there is a sufficient basis to grant the Department's request for remediation. Therefore, the Commissioner should partially grant the Motion for Summary Order.

LIABILITY

ECL 17-0803 states, in pertinent part, that "it shall be unlawful to discharge pollutants to the waters of the state from any outlet or point source without a SPDES permit issued pursuant hereto or in a manner other than prescribed by such permit." The General Conditions in Part II of the Respondent's SPDES permit state that "all discharges authorized by this permit shall be consistent with the terms and conditions of this permit ..." The General Conditions also state that "if the permittee fails or refuses to comply with an interim or final requirement in a SPDES permit, such noncompliance shall constitute a violation of the permit for which the Commissioner may modify, suspend, or revoke the permit or take direct enforcement action pursuant to law."

The Facility operated by the Respondent has had a SPDES permit since December 1989 with effluent limits for pH, lead, antimony, cadmium, beryllium and surfactants. Without any other evidence to the contrary, the DMRs signed by the Respondent prove the Respondent violated the terms of the SPDES permit by exceeding the effluent limits at the times specified in the Department's papers.

The Permit also requires the Respondent to file DMRs each month. As explained below, the Department showed the Respondent did not file DMRs for 34 months, rather than the 36 months originally alleged.

Page 5 of 7 of the Permit requires the Respondent to file a DMR for each month by the 28th day of the following month. Based on this condition, the Respondent's DMR for November 1993 was due by December 28, 1993, and the December 1993 DMR was due by January 28, 1994. However, Mr. McCarthy signed his affidavit on December 20, 1993 -- 8 days before the November 1993 DMR was due, and 39 days before the December 1993 DMR was due. Since Mr. McCarthy's affidavit predates the time by which the Respondent was to have filed the DMRs for November and December 1993, I consider the evidence offered to prove these two charges unreliable. Accordingly, I assign no weight to the pertinent part of Mr. McCarthy's affidavit.

The Department did not file any additional information about whether the Respondent filed the November 1993 and the December 1993 DMRs. Since there is not sufficient proof to determine if the Respondent filed these two DMRs, the Respondent cannot be found liable for these charges related to them. The Commissioner should remand these charges for a hearing.

RELIEF

The Department's prayer for relief includes a civil penalty of $28,500, and an order from the Commissioner directing the Respondent to upgrade the Facility to meet the effluent limits in the SPDES permit.

To calculate the requested civil penalty, the Department relied on ECL 71-1929(1) and the guidance provided in the Division of Water Penalty Assessment Guidance document. Pursuant to ECL 71-1929(1), "a person who violates any of the provisions of, or who fails to perform any duty imposed by, titles 1 through 11 inclusive and title 19 of article 17, ... or the terms of any permit issued thereunder shall be liable to a penalty not to exceed $25,000 per day for each violation ..." The guidance document suggests a $500 civil penalty for exceeding effluent limits that would have a non-toxic effect on the environment, $1,000 for exceeding effluent limits that would have a toxic effect, and $500 for failing to submit DMRs.

The basis used by the Department to calculate the requested civil penalty is reasonable. The civil penalties suggested in the guidance document are substantially less than the maximum civil penalty authorized by ECL 71-1929(1). The suggested civil penalties relate to the nature of the effluent discharges by considering the environmental harm (toxic v. non-toxic) that is likely to occur from exceeding the limits authorized by a permit. The guidance document also considers the regulatory significance of violating other permit conditions such as the requirement to file DMRs. Without DMRs the Department is not able to determine whether the Respondent's discharges consistently meet the authorized effluent limits. For these reasons and because the Respondent did not challenge the Department's rationale, it should be used to calculate the civil penalty for the demonstrated charges.

In his affidavit, Mr. McCarthy concluded without explanation that the discharge of lead, antimony, cadmium and beryllium would have a toxic effect on the environment when the concentration of these compounds exceeded the effluent limits authorized in the Permit. Since the Respondent did not challenge Mr. McCarthy's statement, it is accepted as true [See John William Costello Associates, Inc. supra]. Consequently, the recommended civil penalty for the 8 separate violations associated with discharging concentrations of lead, antimony, cadmium and beryllium in excess of the Permit's limits is $8,000 (i.e. 8 violations @ $1,000 per violation).

Discharges with pH readings outside the permitted range, and discharges that exceed the surfactant effluent limit would not have a toxic effect on the environment. Therefore, the recommended civil penalty for these 5 violations is $2,500 (i.e. 5 violations @ $500 per violation).

The suggested civil penalty for not filing a DMR is $500 for each missing DMR. The record shows the Respondent did not file 34 DMRs. The recommended civil penalty for not filing DMRs is $17,000 (i.e. 34 violations @ $500 per violation). Therefore, the total recommended civil penalty is $27,500.

The Commissioner has the authority to require the Respondent to submit an approvable engineering report and plan that would bring the Facility into compliance with the SPDES permit. ECL 17-0303(4)(b) authorizes the Commissioner to "make, modify or cancel orders requiring the discontinuance of the discharge of sewage, ... into any waters of the state ... " Additionally, ECL 71-1929 and the general conditions of the Respondent's SPDES Permit authorize permit revocation for violations of the permit conditions.

The Permit expires on December 1, 1994. The Department would be acting irresponsibly if it renewed the Permit at the end of this year without requiring the Respondent to meet the effluent limits. Consequently, the Commissioner should order the Respondent to provide the engineering report requested by the Department.

CONCLUSIONS

  1. The Respondent received notice of this enforcement action in a manner consistent with 6 NYCRR 622.3(c).
  2. The Respondent is responsible for any violations of the Permit that occurred from December 1989 to October 1993.
  3. Except for two charges, there are no triable issues of fact about the Respondent's liability. There is a sufficient basis to order the relief sought by the Department for the established charges.
  4. The Respondent violated the terms of SPDES Permit NY- 0231118 in December 1989 and again in July 1990 when the pH of the effluent discharged from the Facility was greater than 8.5 standard units.
  5. The Respondent violated the terms of the Permit in December 1989, in March 1990, in April 1990, in May 1990, and in June 1990 when the concentration of lead in the effluent discharged from the Facility was greater than the 0.05 mg/l effluent limit.
  6. The Respondent violated the terms of the Permit in May 1990 when the concentration of antimony in the effluent discharged from the Facility was greater than 0.003 mg/l effluent limit.
  7. The Respondent violated the terms of the Permit in December 1989 when the concentration of cadmium in the effluent discharged from the Facility was greater than the 0.02 mg/l effluent limit.
  8. The Respondent violated the terms of the Permit in December 1989 when the concentration of beryllium in the effluent discharged from the Facility was greater than the 0.003 mg/l effluent limit.
  9. The Respondent violated the terms of the SPDES Permit in December 1989, in June 1992, and in July 1992 when the concentration of surfactants in the effluent discharged from the Facility was greater than 1.0 mg/l effluent limit.
  10. The Respondent failed to submit DMRs on 34 separate occasions.
  11. Each violation is separate and distinct for a total of 47 violations.

RECOMMENDATIONS

  1. The Commissioner should partially grant the Department's request for Summary Order, and affirm the violations identified above.
  2. The Commissioner should remand the charges that the Respondent failed to submit DMRs for November 1993 and December 1993 for a hearing.
  3. As explained in detail above, the Commissioner should assess a total civil penalty of $27,500.
  4. The Respondent should provide the Region 7 Department Staff with an approvable engineering report and plan to upgrade the Facility so that discharges will meet the effluent limits in the SPDES permit.
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