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Tinkham, David - Order, January 23, 2003

Order, January 23, 2003

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 17
of the Environmental Conservation Law and 6 NYCRR
Parts 612 & 613 by:

ORDER

DAVID TINKHAM,
DEC File Number:
Respondent.

R620011115-114

WHEREAS:

  1. Pursuant to Section 622.12 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR 622.12) Staff of the New York State Department of Environmental Conservation (DEC) duly served a motion for order without hearing upon the Respondent, David Tinkham, on February 25, 2002. The motion was supported by affidavits of Donald I. Johnson, an engineer responsible for the administration of the petroleum bulk storage program in DEC Region 6, and Ernest Lucantonio, a DEC Region 6 engineering technician. Mr. Tinkham did not respond to the motion.
  2. The motion for order without hearing alleged that Mr. Tinkham violated two provisions of the Department's regulations: Section 612.2(a)(2), by failing to renew the registration of his petroleum bulk storage facility at 2223 Oriskany Boulevard, Utica; and Section 613.5(a), by failing to tightness test unprotected underground gasoline storage tanks at that facility.
  3. A copy of the motion and supporting papers was filed with the Office of Hearings and Mediation Services, and the matter was assigned to Administrative Law Judge (ALJ) Edward Buhrmaster. A copy of the ALJ's report is attached to this order, and I hereby adopt it as my own.

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

  1. Pursuant to 6 NYCRR 622.12, DEC Staff's motion for order without hearing is granted and Respondent is found to have violated 6 NYCRR 612.2(a)(2) by failing to renew the registration of his petroleum bulk storage facility at 2223 Oriskany Boulevard, Utica and also 613.5(a), by failing to tightness test unprotected underground gasoline storage tanks at that facility.
  2. The Respondent, David Tinkham, is assessed a civil penalty of Sixteen Thousand Dollars ($16,000), representing Eight Thousand Dollars ($8,000) for each of the two violations alleged by Department Staff.
  3. Half of the total civil penalty, Eight Thousand Dollars ($8,000), shall be due and payable to the Department within 30 days of service of a conformed copy of this order upon the Respondent.
  4. Payment of the remaining Eight Thousand Dollars ($8,000) is suspended provided that the Respondent complies with paragraphs V and VI of this order. Should the Respondent not comply with these paragraphs, this portion of the assessed civil penalty shall be considered immediately due and payable to the Department.
  5. Within 10 days of service of a conformed copy of this order upon the Respondent, the Respondent shall submit a petroleum bulk storage application form to renew the registration of his facility pursuant to 6 NYCRR 612.2, including the requisite fee pursuant to 6 NYCRR 612.3.
  6. Within 60 days of service of a conformed copy of this order upon the Respondent, the Respondent shall provide evidence satisfactory to the Department that the underground gasoline storage tanks have been tightness tested within the last five years. If the tanks have not been tightness tested within the last five years, the Respondent shall either permanently close the tanks in accordance with 6 NYCRR 613.9(b) or have the tanks tightness tested and the results submitted to the Department, also within 60 days of service of the order.
  7. All communications from the Respondent to the Department in this matter shall be made to Randall C. Young, assistant Region 6 attorney, at the Dulles State Office Building, 317 Washington Street, Watertown, New York, 13601-3787.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
/s/
By: Erin M. Crotty, Commissioner

Albany, New York
January 23, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 BROADWAY
ALBANY, NY 12233-1550

In the Matter

- of -

the Alleged Violation of Article 17 of the
Environmental Conservation Law and
6 NYCRR Parts 612 & 613 by:

DAVID TINKHAM,

Respondent

DEC File Number R620011115-114

RULING AND REPORT ON

MOTION FOR ORDER WITHOUT HEARING

/s/
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

Under a cover letter dated February 14, 2002, Staff of the Department of Environmental Conservation ("DEC," or "the Department") mailed a Motion for Order Without Hearing to David F. Tinkham, 110 Hawthorne Avenue, Utica, New York. According to a U.S. Postal Service certified mail receipt, Staff's papers were received by Mr. Tinkham, the Respondent, on February 25, 2002, rendering service complete.

Staff's papers confirmed that pursuant to Section 622.12 of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR 622.12), Mr. Tinkham was required to file a response to Staff's motion, including all proof and supporting affidavits, with the Department's Chief Administrative Law Judge (ALJ) within 20 days after his receipt of the motion. Given the receipt date of February 25, 2002, filing of a response should have occurred, at the latest, by March 18, 2002. No response has been received by the Chief ALJ or DEC Staff.

POSITIONS OF THE PARTIES

- - Position of Department Staff

Department Staff allege that the Respondent has violated two provisions of the Department's regulations:

  • Section 612.2(a)(2), by failing to renew the registration of his petroleum bulk storage facility at 2223 Oriskany Boulevard, Utica; and
  • Section 613.5(a), by failing to tightness test unprotected underground gasoline storage tanks at that facility.

Department Staff maintains that no material issue of fact exists with regard to these alleged violations, and therefore summary judgment in its favor is warranted.

- - Relief Requested

Department Staff request a Commissioner's order assessing a total civil penalty of at least Sixteen Thousand Dollars ($16,000), with at least Eight Thousand Dollars ($8,000) to be paid and the remainder suspended pending the Respondent's compliance with certain specified directives.

- - Position of the Respondent

Because the Respondent did not answer Department Staff's motion, his position is unknown.

FINDINGS OF FACT

  1. By application dated May 3, 1996, the Respondent, David F. Tinkham, sought to register himself as owner and operator of a petroleum bulk storage facility, Dave's Full Serve Citgo, a retail gasoline station at 2223 Oriskany Boulevard in Utica, New York.
  2. In response, on May 10, 1996, the Department issued Mr. Tinkham a petroleum bulk storage registration certificate with an expiration date of May 10, 2001.
  3. Mr. Tinkham's facility includes three 12,000-gallon underground tanks used for gasoline storage. The tanks are steel and have no cathodic protection. According to the 1996 registration certificate, testing of these tanks was due in March of 2001.
  4. On April 9, 2001, Department Staff sent Mr. Tinkham a letter notifying him that his tanks were overdue for testing and that the facility registration was about to expire. Mr. Tinkham did not respond to this letter.
  5. On June 21, 2001, Department Staff sent Mr. Tinkham another letter indicating that the facility registration had expired and that the tanks required tightness testing or closure.
  6. The letters were sent to Mr. Tinkham at 1219 Leeds Street in Utica, the address then on file for him at the Department. Neither letter was returned, so it is presumed that he received the letters.
  7. The Department still has not received results for any tightness tests subsequent to those that Mr. Tinkham indicated in his application were done in March of 1996. Also, the Department has not received notice that Mr. Tinkham has permanently closed the tanks in question.
  8. Tightness testing of a petroleum storage tank costs at least Five Hundred Dollars ($500.00).

DISCUSSION

The Department's papers allege two violations of the Department's regulations: (1) failure to renew the registration of the petroleum bulk storage facility, and (2) failure to conduct tightness testing in a timely manner. The Department's evidence of these violations consists of affidavits of two Department employees: Donald I. Johnson, an engineer responsible for administration of the petroleum bulk storage program in DEC Region 6, and Ernest Lucantonio, an engineer technician also working in Region 6. Because the Respondent has not responded to Staff's motion, the assertions in these two affidavits are uncontested. For that reason, they form the basis for my findings of fact. Each of the two alleged violations is discussed below.

- - Registration Renewal

According to 6 NYCRR 612.2(a)(2), the owner of a petroleum storage facility having a capacity of more than 1,100 gallons must renew the facility's registration every five years from the date of the last valid registration until the Department receives written notice that the facility has been permanently closed or the ownership of the facility has been transferred.

Based on his application dated May 3, 1996, the Respondent received a petroleum bulk storage registration certificate dated May 10, 1996, with a stated expiration date of May 10, 2001. According to Mr. Johnson's affidavit of January 16, 2002, this registration was not renewed, and the Department has not received notice that the Respondent has permanently closed the tanks at the facility. Staff's affidavits do not address the possibility of an ownership transfer, but if there had been one, the Respondent was obliged to tell the Department before his registration expired, and I expect he would have raised the transfer as an affirmative defense, rather than remain silent in the face of Staff's motion.

Failure to renew the facility's registration - - or, in lieu of that, to give written notice that the facility has been closed or that it has been transferred to a new owner - - means the Respondent has violated 6 NYCRR 612.2(a)(2).

- - Tightness Testing

According to 6 NYCRR 613.5(a), owners of underground petroleum storage tanks must assure that those tanks are tested for tightness on a periodic basis. As Department Staff explains in its papers, the Respondent's three 12,000-gallon underground gasoline tanks are unprotected and therefore require retesting every five years until they are permanently closed. Department Staff have not received results for any testing conducted since March of 1996, more than five years ago. Also, Department Staff have not been informed that the tanks have been permanently closed. (According to a document attached to Staff's papers, the Respondent notified the Department in January of 1999 that the tanks were temporarily out-of-service, but that is not the same as closure on a permanent basis.)

Failure to retest the three tanks prior to March of 2001 - - or to close the tanks permanently with notice to the Department - - means the Respondent has violated 6 NYCRR 613.5(a).

- - Penalty Factors

Department Staff request a total civil penalty of Sixteen Thousand Dollars ($16,000), with at least Eight Thousand Dollars ($8,000) to be paid and the remainder suspended pending the Respondent's compliance with certain specified directives.

Staff's penalty recommendation is based on considerations of economic benefit (due to avoided costs) and gravity of the alleged violations. Mr. Johnson indicates that, based on his experience in the petroleum bulk storage program, tightness testing of a petroleum storage tank costs at least Five Hundred Dollars ($500), so testing the Respondent's three tanks according to the periodic schedule required by the regulations would have cost at least $1500 by now. Also, according to 6 NYCRR 612.3(a), a five-year registration renewal of a facility with a combined storage capacity of 5,000 gallons or more costs $250. Therefore, as Department Staff argues, the Respondent's violations have given him an unwarranted economic benefit of $1,750.

The Department's civil penalties are calculated to eliminate any benefit achieved from non-compliance and to deter future violations by the Respondent and others in the regulated community. DEC Staff argues that an additional penalty (beyond the avoided costs) is warranted here because the Respondent failed to respond to two letters reminding him of the need to tightness test his tanks, one of which also gave advance warning that the facility's registration was about to expire. I agree that these letters, sent to an address Mr. Tinkham himself had specified for Department correspondence, should be considered an aggravating factor in this circumstance, so that DEC Staff's recommended civil penalty, still well short of the maximum that could be assessed in this matter, is reasonable.

Of course, by not responding to Staff's motion, the Respondent has not created any triable issues of fact that would warrant a hearing on the relief Staff has requested. The nature of that relief has been clarified with Department Staff counsel by telephone and letter, and is reflected in the proposed order submitted with this report.

RULING

Department Staff's motion for order without hearing is granted in full.

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