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Universal Waste, Inc. - Recommended Decision and Hearing Report, April 5, 2006

Recommended Decision and Hearing Report, April 5, 2006

PROCEEDINGS

POSITIONS OF THE PARTIES

Summary of Petitioners' Arguments

Summary of Department Staff's Arguments

SUMMARY OF RECOMMENDATION

APPLICABLE STATUTE AND REGULATIONS

DEPARTMENT STAFF'S BASIS FOR SITE LISTING

POST-HEARING BRIEFING

Sections 375-1.4(a)(1) and (a)(2)

Consideration of Past Effects

Res Judicata

Effects on Species of Special Concern

Effects on Protected Streams

DISCUSSION

On-Site PCB Contamination

Disposal History

"Trommelling"

Preliminary Site Assessment ("PSA")

Off-Site Contaminant Migration

PCB "Fingerprinting"

PCB Migration in Water and Soil

Flooding and Surface Water Runoff

Sanitary Sewer

Storm Sewer

Sampling at Station 70 (Backwater)

PISCES Samplers

Observations at Station 70

Effects on Invertebrates

Sampling Results at Station 70

Other Sources

Combined Sewer Overflow

Utica City Dump

Empire Recycling

FINDINGS OF FACT

CONCLUSION

Appendix (Site Map)

PROCEEDINGS

In a submission dated January 8, 2003, Universal Waste, Inc. and Clearview Acres, Ltd. (collectively referred to herein as "Petitioners"), petitioned the New York State Department of Environmental Conservation ("Department") to delete an inactive hazardous waste site, Universal Waste, Inc., located at Leland and Wurz Avenues, Utica, New York 13503 (the "Site") from the New York State Registry of Inactive Hazardous Waste Sites (the "Registry"). Petitioners sought to delist the Site pursuant to section 375-1.9 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). In the alternative, Petitioners sought reclassification of the Site from Class 2 to Class 3.¹ Petitioners filed a corrected petition on June 23, 2003.

The property where the Site is located was listed in the Registry as a Class 2 site until approximately 1999, when the property was subdivided, at Petitioners' request, into the Utica Alloys and Universal Waste sites, respectively. The Utica Alloys parcel remained as a Class 2 site, and the Universal Waste parcel was reclassified 2a, until Petitioners undertook a Preliminary Site Assessment ("PSA") pursuant to a May 2000 Order on Consent.² Following the submission of the PSA, Department Staff notified Petitioners by letter dated July 24, 2002 of the Universal Waste parcel's reclassification to Class 2.

In their delisting petition, Petitioners asserted that the contamination at the Site, specifically, the presence of polychlorinated biphenyls ("PCBs"³), does not present a significant threat to the environment, and that delisting or reclassification is therefore warranted. According to Petitioners, Department Staff made no showing that PCBs had migrated from the Site to a sewer outfall channel (the "backwater") connecting to the Upper Mohawk River, or that the PCBs in the backwater are causing or materially contributing to a significant environmental effect, or that it was reasonably foreseeable that those contaminants would do so. As a result, Petitioners argued that the Department could not conclude that the Site constitutes a significant environmental threat, warranting the Site's listing as Class 2 on the Registry.

Department Staff denied the petition by letter dated July 8, 2003. By letter dated July 17, 2003, Petitioners requested that the Department's Office of Hearings and Mediation Services "reconvene the adjudicatory hearing" concerning the status of the Site. Department Staff objected. The matter was assigned to administrative law judge ("ALJ") Maria E. Villa, and in a ruling dated November 3, 2003, the Petitioners' request was denied. See Matter of Universal Waste Hazardous Waste Site, ALJ Ruling at 3-4, 2003 WL 22668212, *3.

Petitioners sought judicial review, pursuant to Article 78 of the New York Civil Practice Law and Rules, of Department Staff's summary denial. In a decision dated May 26, 2004, and entered June 3, 2004, Supreme Court, Oneida County, vacated the Department's summary denial, and ordered that an administrative hearing be held, "consistent with 6 NYCRR §375-1.9 and 6 NYCRR §624.1 et seq."⁴ (see Matter of Universal Waste, Inc. v. New York State Dept. of Envtl. Conservation, Julian, J., Index No. CA-2003-002781, at 10).

Notice of the hearing was published on July 21, 2004 in the Department's electronic Environmental Notice Bulletin, and in the July 27, 2004 edition of the Utica Observer Dispatch. On August 31, 2004, the legislative hearing was held at the State Office Building in Utica, New York. On September 22, 2004, the issues conference was held at the same location. The hearing notice set a deadline of September 17, 2004 for receipt of petitions for party status. No petitions for party status were received.

Although Department Staff and Petitioners agreed that the issue to be adjudicated was whether the Site poses a significant environmental threat and therefore should be listed on the Registry as a Class 2 site, the parties disputed the scope of discovery. On October 7, 2004, the ALJ issued a ruling with respect to that discovery dispute, confirming the issue for adjudication, and scheduling further proceedings. See Matter of Universal Waste Inactive Hazardous Waste Disposal Site, ALJ Ruling, 2004 WL 2296585 (Oct. 7, 2004).

The adjudicatory hearing began on October 26, 2004, and continued on October 27, 2004. During this portion of the hearing, Petitioners and Department Staff presented their direct cases. Petitioners were represented by Michael B. Gerrard, Esq., and Richard Webster, Esq., of the law firm of Arnold & Porter, LLP. Paul D. Boehm, Ph.D., a vice president and principal scientist with Exponent, a scientific consulting firm, and Remy Jean-Claude Hennet, Ph.D., a consulting geochemist employed by S. S. Papadopulos & Associates, Inc., a specialty environmental consulting firm, testified on Petitioners' behalf. Department Staff was represented by Dolores Tuohy, Esq. and Sonia K. Meyer, Esq., and offered the testimony of the following Department employees: John Iannotti, P.E.; Simon Litten, Research Scientist 1; Timothy Preddice, Aquatic Biologist 1; James Ludlam, P.E.; and John B. Swartout, Chief of Section C, Bureau A of the Department's Division of Environmental Remediation.

The hearing continued on February 2, 2005. At that time, the parties presented rebuttal testimony through Petitioners' witnesses, Dr. Hennet and Bret Copple, an employee of Utica Alloys, Inc., and Department Staff witnesses Mr. Swartout, Kevin Farrar, Engineering Geologist II, Faye L. Harris, Environmental Chemist, and David A. Tromp, P.E., Environmental Engineer I.

The parties submitted post-hearing briefs and reply briefs, and during a conference call on November 10, 2005, requested that the ALJ prepare a recommended decision in this matter, pursuant to Section 624.13(a)(2)(ii). The Commissioner agreed to this request, and directed that this hearing report be issued as a recommended decision.

POSITIONS OF THE PARTIES

Summary of Petitioners' Arguments

According to Petitioners, Department Staff failed to establish that the contamination at the Site, as well as contamination in the adjacent backwater area, "are affecting, or will foreseeably affect, any environmental resource to a significant extent." Petitioners' Brief, at 2. Specifically, according to Petitioners, Department Staff "has not alleged that the Site and the backwater area make, or will foreseeably make, a material contribution to the fish consumption advisory that is in place for the Mohawk River for many miles both upstream and downstream of the Site." Id. Petitioners emphasized that the regulations and caselaw have established that the mere presence of hazardous waste at a site or in the environment is not a sufficient basis for a significant threat finding, and went on to assert that Department Staff "is urging that insignificant or immaterial effects should be used to list the Site as Class 2." Transcript (hereinafter "Tr.") at 8-9; Petitioners' Reply Brief at 1.

Petitioners contended that the "significant environmental effects" of potential concern at the Site are "significant adverse effects on protected streams, waters, wetlands or other habitat;" "bioaccumulation of contaminants in flora or fauna to a level that causes or materially contributes to significant ecotoxicological effects, or leads or materially contributes to the need to recommend that human consumption be limited;" and "significant adverse, acute or chronic effects to fish, shellfish, crustacea and wildlife." Tr. at 10-11. Petitioners also cited to the general, "catch-all" provision of Section 375-1.4(a)(2), and the factors set forth in Section 375-1.4(b)(1) through (13). As discussed below, Section 375-1.4(a)(2) provides that a Site may be listed as a significant threat if hazardous waste present at the Site "is causing or will foreseeably cause significant environmental damage."

Petitioners maintained that PCBs are not leaving the Site in any significant quantity, if at all, and that PCBs "coming from the overall area are not causing any significant environmental damage or one of the enumerated effects on the Mohawk River." Tr. at 13. The witnesses offered by Petitioners focused on two points: first, that PCBs are not migrating off the Universal Waste Site in any significant amount, and second, that even if such migration were occurring, there has been no significant environmental effect within the meaning of the regulations as a result. Petitioners' witnesses also testified that such migration, and any associated environmental effects, were not reasonably foreseeable.

Summary of Department Staff's Arguments

Department Staff argued that its determination to list the Site as Class 2 on the Registry, and its denial of the petition to delist, were appropriate. According to Department Staff, the PCBs disposed of at the Site constitute a significant threat in and of themselves, and moreover, contamination from the Site has migrated into the backwater area and the main stem of the Mohawk River. Department Staff contended that this contamination impacts the areas where PCBs have migrated, and that PCBs have the potential to migrate further in the future and result in additional impacts, including impacts to the food chain and bioaccumulation of PCBs in wildlife.

Department Staff pointed to the history of disposal of significant quantities of PCB-containing materials at the Site, noting that PCBs were found in subsurface soils at depths of 14 to 16 feet. According to Department Staff, this refutes Petitioners' contentions concerning the highly immobile nature of PCBs in soil. Tr. at 29. Department Staff asserted that PCBs could be leaving the Site via several migration pathways, including: (1) stormwater runoff, either directly into the sewer in the street immediately adjacent to the Site, around the manmade earthen berm, or directly into the backwater prior to the berm's construction; or (2) through the soil. Tr. at 30.

Department Staff maintained that flooding at the Site would allow PCBs to be transported off-site by receding floodwaters, and also asserted that a preferential pathway for contaminant migration exists via the sewer line and the sewer line bedding beneath the Site. Tr. at 31. Department Staff argued further that sampling undertaken in 1996 in the backwater adjacent to the Site revealed the presence of PCBs of the same type as those found on the Site. Tr. at 32. With respect to Petitioners' arguments concerning the deficiencies surrounding the sampling undertaken in the backwater, Department Staff asserted that, if anything, the sampling results in question underestimated the level of PCB contamination at that location. Tr. at 32-33. Department Staff concluded that "[n]o additional input of PCB contamination into the river or backwater area itself is acceptable nor can it be tolerated." Tr. at 33.

SUMMARY OF RECOMMENDATION

Based upon this record, the Commissioner should determine that the Site does not constitute a significant threat to the environment. Petitioners have met their burden to establish by a preponderance of the evidence that PCB contamination either on the Site or potentially migrating off-Site does not pose a significant threat. Moreover, the record demonstrates that it is not reasonably foreseeable that such PCB contamination will pose a significant threat in the future. Accordingly, the Site should be re-classified as Class 3, to reflect that while hazardous wastes in the form of PCBs are present, the Site does not present a significant threat to the environment.

APPLICABLE STATUTE AND REGULATIONS

Section 27-1305(1) of the New York State Environmental Conservation Law ("ECL") requires the Department to maintain a registry of all of the known inactive hazardous waste disposal sites⁵ in the State. The statute further requires the Department to conduct investigations of the listed sites. ECL § 27-1305(2)(a). The purpose of these investigations is to develop information required by the statute, including, among other things, a general description of the site; the time period during which the site was used for the disposal of hazardous waste; the type and quantity of hazardous waste disposed of; the nature of the soils at the site, and the depth of the water table; direction of present and historic groundwater flows at the site; location, nature and size of all surface waters at and near the site; and levels of contaminants in groundwater, surface water, air and soils at and near the site resulting from hazardous wastes disposed of at the site or from any other cause and areas known to be directly affected or contaminated by wastes from the site. ECL § 27-1305(1)(a), (c), (f), (g), (h), (i), (k), (l) and (m).

The statute requires the Department, in cooperation with the New York State Department of Health ("DOH"), to assess "the relative need for action at each site to remedy environmental and health problems resulting from the presence of hazardous wastes at such sites." ECL § 27-1305(2)(b). In making its assessments, the Department is required to place every site in one of the classifications enumerated in Section 27-1305(b)(1) through (5). As noted earlier, a Class 2 site is one that presents a significant threat to public health or the environment, such that action is required. ECL § 27-1305(2)(b)(2). Pursuant to the statute, the Department is required to reassess a Site's classification, in cooperation with DOH and based upon new information, by March 31^st of each year. ECL § 27-1305(2)(b).

If the Commissioner finds that hazardous wastes at an inactive hazardous waste disposal site constitute a significant threat to the environment, the Commissioner:

ECL § 27-1313(3)(a).

The statute's implementing regulations are found in Part 375 of 6 NYCRR. Pursuant to Section 375-1.9(b)(1) through (3), the only relief a petitioner may seek is deletion of a site from the Registry, reclassification, or modification of any information concerning the site. In this case, although the petition requested delisting or, in the alternative, reclassification as a Class 3 site, at the hearing Petitioners acknowledged that hazardous waste is present at the Site, and therefore that delisting would not be appropriate. Tr. at 8. Accordingly, this recommended decision addresses Petitioners' request that the Site's classification be changed to a Class 3.

The regulations provide that the procedures of Part 624 of 6 NYCRR are to be used in any hearing held in connection with a petition to re-classify a Registry site. Section 375-1.9(d)(2)(ii). The regulation goes on to state that "the petitioner bears the burden of proof in any such hearing," and provides further that "any reference in Part 624 of this Title to an 'applicant' shall be construed to be a reference to a petitioner for purposes of the applicability of such Part." Section 375-1.9(d)(2)(iii). Section 624.9(b) contains a similar provision stating that the petitioner has the burden of proof.

Accordingly, in this proceeding, Petitioners have the burden of demonstrating that the Site is not a significant threat to the environment. Petitioners are therefore obliged, under the circumstances of this case, to establish by a preponderance of the evidence that any significant threat to the environment at the Site, in the backwater, or in the River is not attributable to the hazardous waste that Petitioners acknowledge is present on the Universal Waste Site.

If Petitioners meet their burden of production, the burden of coming forward with probative evidence to refute Petitioners' contentions shifts to Department Staff. See Matter of Peckham Materials Corp., Second Interim Decision at 4, 1993 WL 113776, * 3 (Mar. 15, 1993) (noting that the applicant had both the burden of proof and burden of going forward with respect to an issue to be adjudicated); Matter of St. Lawrence Cement Co., LLC, Second Interim Decision at 126, 2004 WL 2026420, * 53 (Sept. 8, 2004) (stating that ALJs' holdings were "consistent with the ordinary shifting of the burden to produce evidence - as distinct from the non-shifting ultimate burden of proof established by section 624.9 - common to all evidentiary hearings, including those conducted pursuant to Part 624") (citations omitted).⁶ Nevertheless, to the extent the evidence on a particular factual question is weighted equally between Petitioners and Department Staff, the question must be decided in Department Staff's favor because the ultimate burden of persuasion always remains with Petitioners.

Although the statute does not define a "significant threat to the environment," the Department's regulation at 6 NYCRR Section 375-1.4 provides a detailed definition. Section 375-1.4(a)(1) allows the Commissioner to find that hazardous waste disposed of at a site constitutes a significant threat to the environment "if, after reviewing the available evidence and considering the factors the commissioner deems relevant set forth in subdivision (b) of this section, the commissioner determines that the hazardous waste disposed at the site or coming from the site results in, or is reasonably foreseeable to result in," any of six situations, including:

- a significant adverse impact upon endangered species, threatened species, or species of concern (Section 375-1.4(a)(1)(i));

- a significant adverse impact upon protected streams or freshwater wetlands (Section 375-1.4(a)(1)(ii));

- "a bioaccumulation of contaminants in flora or fauna to a level that causes, or that materially contributes to, significant adverse ecotoxicological effects in flora or fauna or leads, or materially contributes, to the need to recommend that human consumption be limited" (Section 375-1.4(a)(1)(iii));

- "contaminant levels that cause significant adverse, acute or chronic effects to fish, shellfish, crustacea, or wildlife" (Section 375-1.4(a)(1)(iv));

- a significant adverse impact to the environment due to a fire, spill, explosion, or similar incident or a reaction that generates toxic gases, vapors, fumes, mists, or dusts (Section 375-1.4(a)(1)(v)); or

- "where the site is near private residences, recreational facilities, public buildings or property, school facilities, places of work or worship, or other areas where individuals or water supplies may be present, the New York State Department of Health or the Agency for Toxic Substances and Disease Registry has determined that the presence of hazardous waste on a site poses a significantly increased risk to the public health" (Section 375-1.4(a)(1)(vi)).

It is undisputed that Subsections (v) and (vi) are not under consideration in this proceeding. Department Staff's Brief at 13-14 (listing regulatory criteria at issue in the hearing).

Subdivision (b) of Section 375-1.4 provides that in making a finding as to whether a significant threat exists, the Commissioner may take into account several factors enumerated in 6 NYCRR Section 375-1.4(b)(1)-(13), "as may be appropriate under the circumstances of the particular situation." Those factors include:

the duration, areal extent, or magnitude of severity of the environmental damage that may result from a release of hazardous waste (Section 375-1.4(b)(1));

the type, mobility, toxicity, quantity, bioaccumulation, and persistence of hazardous waste present at the site (Section 375-1.4(b)(2));

the manner of disposal of the hazardous waste (Section 375-1.4(b)(3));

the nature of soils and bedrock at and near the site (Section 375-1.4(b)(4));

groundwater hydrology at and near the site (Section 375-1.4(b)(5));

location, nature and size of surface waters at and near the site (Section 375-1.4(b)(6));

levels of contaminants in groundwater, surface water, air and soils at and near the site and areas known to be directly affected or contaminated by waste from the site, including but not limited to contravention of ambient surface water and groundwater standards, and drinking water standards (Section 375-1.4(b)(7));

proximity of the site to private residences, recreational facilities, public buildings or property, school facilities, places of work or worship, and other areas where individuals may be present (Section 375-1.4(b)(8));

the extent to which hazardous waste and/or hazardous waste constituents have migrated or are reasonably anticipated to migrate from the site (Section 375-1.4(b)(9));

the proximity of the site to areas of critical environmental concern, such as wetlands (Section 375-1.4(b)(10));

the potential for wildlife or aquatic life exposure that could cause an increase in morbidity or mortality of same (Section 375-1.4(b)(11));

the integrity of the mechanism, if any, that may be containing the hazardous waste to assess the probability of a release of the hazardous waste into the environment (Section 375-1.4(b)(12)); and

the climatic and weather conditions at and in the vicinity of the site (Section 375-1.4(b)(13)).

In addition, Section 375-1.4(a)(2) allows the Commissioner to find that hazardous waste disposed of at a site constitutes a significant threat to the environment "if, after reviewing the available evidence and considering the factors the commissioner deems relevant set forth in subdivision (b) of this section, the commissioner determines that the hazardous waste disposed at the site or coming from the site results in, or is reasonably foreseeable to result in, significant environmental damage." "Environmental damage" is defined at 6 NYCRR Section 375-1.3(h) to mean "any impairment of use by flora or fauna of, or any injury to, the environment; and any adverse health impact."

DEPARTMENT STAFF'S BASIS FOR SITE LISTING

As noted above, by letter dated July 24, 2002, Department Staff notified Petitioners of the Site's Class 2 listing. Exh. 3-1. The reason for the change in classification from a Class 2a to Class 2 was set forth as follows:

"Hazardous waste in the form of polychlorinated biphenyls (PCBs) was identified in site soils during two preliminary site investigations. One of the PCB contaminated areas is adjacent to the sewer outfall channel. PCBs were also discovered in the sediment of this channel at levels of concern to the Division of Fish and Wildlife, and Marine Resources (DFWMR). This channel discharges to the Mohawk River in an area where the DEC has identified PCBs as a contaminant of concern. In fact, a March 1998 DEC report [the "PISCES Report"] identified the ditch behind Universal Waste as one of the two "HOT" spots which had been identified during sampling conducted during 1996. The report states: "Further downstream at Station 60, PCB levels rise again, influenced by the extremely high levels present in the ditch behind Utica Alloys ("Universal Waste"), Station 70." The PCBs disposed at the Universal Waste site present a significant threat to the environment. Remedial Action is necessary. Universal Waste has proposed capping a one acre area with asphalt as an Interim Remedial Measure ("IRM") to mitigate potential risks associated with the PCB contaminated soils."

Exh. 3-1 at 1.

By letter dated April 26, 2002, John B. Swartout, one of the Department's witnesses in this proceeding, commented on the PSA. Exh. 3 at 7; Exh. 3-6. That letter was addressed to counsel for Petitioners, and stated that "[t]he PCB contamination on the other hand, seems to be more likely site related since the sewer discharge channel is located adjacent to the primary area of PCB contamination at the Universal Waste Site." Exh. 3-6 at 2. The letter indicated that "[w]e have recommended that this site be categorized as a class 2 inactive hazardous waste site because of the evidence of PCB hazardous waste at this site and the offsite migration of PCBs from the site." Id. at 1.

As noted above, Department Staff summarily denied the petition to delist by letter dated July 8, 2003. By letter dated September 5, 2003, Department Staff reiterated its summary denial, stating that "[t]he Department has determined that the factual allegations made within the delisting petition, even if accepted as true by the Department, are insufficient to support the Department's either deleting the site from the Registry of Inactive Hazardous Waste Disposal Sites or reclassifying the site as a 'Class 3' site." Exh. 4 at 1. The letter went on to state that even if the Site did not pose a significant threat based upon the criteria in Section 375-1.4(a)(1), "the provisions of Section 375-1.4(a)(2) require the Department to find that the contamination of soils, sediments and groundwaters by PCBs related to the site, when evaluated in accordance with the factors set forth in Section 375-1.4(b), presents a significant threat to the environment." Id. at 2.

In prefiled testimony and at the hearing, Mr. Swartout maintained that the Site is a significant threat to the environment, and that hazardous waste at the Site has resulted in significant environmental impacts. Swartout Prefiled at 26. Referring to the factors enumerated in Section 375-1.4(b), the witness stated that PCBS are toxic, bioaccumulate, and persist in the environment, where they are mobile in soils and groundwater. Id. at 22. He went on to testify that uncontrolled dumping of materials containing PCBs took place at the Site, and that the groundwater flow is directly towards the Mohawk River. Id. Mr. Swartout stated that the Mohawk River is significant, within the meaning of the regulation, because it is a Class C waterbody and is immediately adjacent to the Site. Id.

Mr. Swartout testified that sampling performed in 1984 found PCBs in composite surface soil samples at levels up to 36,000 parts per million ("ppm"), and that in 1977, PCBs at a level of 51,200 ppm were detected in a sample taken from soil next to a pile of capacitors. Id. at 23. The witness testified further that sampling in 2000 revealed PCBs in shallow and surface soils at levels up to 1302 ppm, and that only three of the thirty soil samples taken at that time showed levels of contamination below 1 ppm, which is the unrestricted surface soil guidance level. Id. As discussed below, Mr. Swartout later acknowledged on cross-examination that the 1302 ppm result was an error, and the actual level was much lower. The witness also stated that sampling of sediments at the sewer discharge channel revealed levels of PCBs and other contaminants "that exceeded the standards, criteria or guidance as defined in the regulations." Id. at 22-23.

In discussing the Site's proximity to areas where individuals may be present, Mr. Swartout contended that the Site is actively in business, that workers are present at the Site, and an active rail line runs through the property. Id. The witness pointed out that the Site is separated from the Mohawk River only by a public right of way that leads to a river level control structure located just downstream. Id. According to Mr. Swartout, "[t]here is ready access to this right of way from Leland Avenue and no fence between this right of way and the Site." Id. Mr. Swartout testified that PCBs from the sewer discharge channel have migrated into and have impacted the Mohawk River, stating that

"[i]t has been the Department's position that PCBs entered the sewer discharge channel by way of a combination of mechanisms, including: erosion of PCB contaminated surface soils on the Site by storm water (I'll note, Universal Waste, Inc., does not have a stormwater control program in effect); discharge of PCB contaminated sewage from the former sanitary sewer settling pond on what is now Universal Waste property; discharge of contaminated groundwater moving through the bedding along the existing storm sewer line; and discharge of contaminated storm water from the storm sewer line."

Id. at 23-24. According to the witness, "migration is likely to continue to occur by way of transport of contaminated surface soils into the adjacent wetland and thus the Mohawk River through storm water runoff and the continued leaching of contamination from the contaminated Site soils and from the former sanitary sewer settling pond into the storm sewer or the adjacent bedding material." Id. at 24.

Mr. Swartout testified that the Site is located in the River's flood plain and that in the past, portions of the Site have been flooded at depths of up to three feet. Id. As a result, Mr. Swartout concluded that "the past flood events are likely to have transported PCBs from the Site to the Mohawk River and may continue to do so during future flooding." Id. With respect to the Site's proximity to areas of critical environmental concern, Mr. Swartout testified that "storm water runoff from the Site directly impacts the adjacent wetland." Id.

The witness went on to testify concerning the potential for wildlife or aquatic life exposure that could cause an increase in death or disease, stating that highly bioaccumulative PCB Aroclors,⁷ specifically Aroclor 1254 and 1260, have been found in the backwater area just east of the Site. Id. at 24. According to Mr. Swartout, the same Aroclors have been found in soils on-Site, and oil, which facilitates PCB migration, has migrated from the Site and been found in the backwater area sediments. Id. Mr. Swartout stated further that "fish in the area of the Site are contaminated with PCBs, which has resulted in a health advisory from the Department of Health." Id. at 24-25.

Mr. Swartout noted further that both the United States Environmental Protection Agency ("EPA") and the Department have documented the detrimental effects of PCBs on wildlife and aquatic life in general. Id. at 25. Mr. Swartout stated that the concentrations of PCBs found downgradient of the Site consist predominantly of bioaccumulative Aroclors 1254 and 1260, the same Aroclors found at the Site. Id. With respect to the probability of releases of hazardous waste into the environment, the witness stated that there is no containment at the Site, and PCBs continue to be released into the environment. Id.

On cross-examination, Mr. Swartout was asked to summarize the ways which, in Department Staff's view, the Site constitutes a significant threat to the environment. Tr. at 446. He responded that

Tr. at 446-47.

The witness stated that in his opinion the Site is having a significant effect on the environment, because of the presence of PCBs "that are in exceedance of the standards and are at levels of concern to fish and wildlife in a backwater of the river which is interconnected with a wetland area." Tr. at 448. Mr. Swartout went on to testify that Department Staff has determined that the Site poses a significant threat to the environment, based upon the likelihood of a significant environmental effect on health or the environment in the future. Tr. at 447. According to Mr. Swartout, "[w]e have not necessarily stated there's a significant effect right now, although the information from the PISCES tends to point in that direction, but for us to find that a site presents a significant threat and requires a remedial investigation to be done, we don't actually have to find there is a current threat or current impact." Tr. at 447-48.

As Mr. Swartout noted, a fish consumption advisory with respect to the portion of the Mohawk River where the Universal Waste Site is located has been in effect since 1994, when the New York State Department of Health ("DOH") warned the public not to consume carp caught in the upper Mohawk River from the mouth of Oriskany Creek, Oriskany, to approximately twenty-two miles downstream to the mouth of the West Canada Creek in Herkimer. Preddice Prefiled at 4. The mouth of the Oriskany Creek is approximately eight miles upstream of the Site, and the mouth of West Canada Creek is approximately fourteen miles downstream. Id. The 1994 health advisory was based upon PCB contamination detected in the River, and in 1998 DOH issued a further health advisory with respect to consumption of largemouth bass or tiger muskellunge, for the same reason. Id. The health advisories go on to caution that women of childbearing age and children under fifteen years of age should not consume any fish from this reach of the River or its tributaries up to the first barrier impassable to fish. Id.

Department Staff offered testimony with respect to the effects of PCB contamination on fish and wildlife. Timothy Preddice, a Department biologist, stated that PCBs "are a group of very slowly degrading organic compounds that can bio-accumulate greatly in highly lipophilic (fatty) tissues." Preddice Prefiled at 12. He testified further that biological and toxicological effects attributable to PCBs include birth defects, reproductive failure, liver damage, tumors, a wasting syndrome, and death. Id. Mr. Preddice went on to state that PCBs "tend to magnify through the food chain," resulting in consumption of significant amounts of this toxic chemical by fish, mammals, and humans. Id. at 12-13. The witness stated that highly chlorinated Aroclors, such as Aroclor 1254, are not easily degraded. Preddice Prefiled at 10. Mr. Preddice and Petitioners' witness, Dr. Boehm, agreed that Aroclor 1254 is the type found in fish. Preddice Prefiled at 8; Tr. at 106.

Mr. Preddice asserted that PCBs from the Site are flowing from the backwater adjacent to the Site into the River, "particularly during receding high water levels." Preddice Prefiled at 13. The witness testified that PCBs contained in oil, adsorbed to organic material, and in water which flows from the backwater area near the Site into wetlands and the River contribute "to a situation which has resulted in restrictions on human use of the fishery resource." Id.

POST-HEARING BRIEFING

Sections 375-1.4(a)(1) and (a)(2)

In their brief, Petitioners stated that the Commissioner may find a site to be a significant threat based upon the six situations enumerated in Section 375-1.4(a)(1), and may also make such a finding pursuant to Section 375-1.4(a)(2) after reviewing the available evidence and considering the Section (b) criteria. Petitioners' Brief at 40. Department Staff responded that Petitioners had mischaracterized the scope of the Commissioner's inquiry under the regulations, arguing that Petitioners improperly indicated that the Section (b) criteria do not apply to significant threat determinations pursuant to the six specific categories set forth in Section 375-1.4(a)(1). Department Staff's Reply Brief at 8.

While it would be a misreading of the regulation to contend that the Section (b) criteria are only applicable to significant threat determinations made pursuant to Section (a)(2), it does not appear that Petitioners are in fact making such an assertion in this case. In any event, it is clear from the express language of the regulation that a significant threat finding under either Section (a)(1) or Section (a)(2) is to be based upon the Commissioner's review of the available evidence, and consideration of the criteria set forth in Section 375-1.4(b).

Petitioners also contended that the "catch-all" provision in Section 375-1.4(a)(2) is intended to complement the specifically enumerated impacts "and is designed to cover significant effects that are not enumerated in Section 375-1.4(a)(1)." Petitioners' Brief at 41. In their reply brief, Petitioners maintained that the "catch-all" provision "is not an invitation for DEC to side-step the requirements imposed by the other more specific provisions of the regulations." Petitioners' Reply Brief at 21. According to Petitioners, the provision "should only be employed where an effect does not come within the coverage of a more specific provision." Id.

Department Staff took the position that Petitioners mistakenly asserted that the broader "significant environmental damage" provision in Section 375-1.4(a)(2) is intended to address only those effects not enumerated in Section 375-1.4(a)(1). Department Staff's Reply Brief at 8-9. Department Staff argued that Petitioners' interpretation is contradicted by the statute's plain meaning, contending that

Department Staff's Reply Brief at 9. Department Staff argued further that any determination as to the significance or materiality of the threat posed by the Site is committed to the Commissioner's discretion, based upon the evidence and testimony adduced at the hearing. Tr. at 34, 242.

As part of its reply brief, Department Staff included an excerpt from the Department's March 1992 "Hearing Report; Responsiveness Summary; and Revision to Draft Regulatory Impact Statement" for the revised Part 375 regulations (the "Responsiveness Summary"). That document states that the Section (a)(2) "catch-all" provision is "designed to provide standards and criteria to assist us in evaluating the presence of a significant threat to the environment posed by hazardous waste at a particular site under circumstances that do not neatly fit within any of the preceding categories." Responsiveness Summary, at II-9. The document goes on to note that "[w]e cannot be expected to articulate every single circumstance in which hazardous waste at an inactive hazardous waste disposal site constitutes a significant threat to the environment; nor should we be required to do so." Id.

The thrust of Petitioners' argument with respect to this point appears to be that to the extent a Section 375-1.4(a)(1) subsection establishes a specific standard for a demonstration of significance (for example, a "material contribution" to the need to limit human consumption of biota due to bioaccumulation, pursuant to Section 375-1.4(a)(1)(iii)), Department Staff cannot invoke the "catch-all" provision of Section 375-1.4(a)(2) to make such a demonstration based upon a lesser standard.

Petitioners' assertion that Department Staff cannot "bootstrap" a finding pursuant to Section (a)(1) to also establish that significant environmental damage has occurred within the meaning of Section (a)(2) is supported by the language of the regulation. As noted, both Section 375-1.4(a)(1) and 375-1.4(a)(2) state that the Commissioner's determination that a significant threat exists as a result of hazardous waste disposal is to be based upon a review of the available evidence and the Section 375-1.4(b) factors. Because this language appears in both Sections (a)(1) and (a)(2), and because Section (a)(2) does not state that the six situations enumerated in Section 375-1.4(a)(1)(i) through (vi) are to be considered in making a significant threat finding, it is clear that the subsection (b) criteria and the available evidence are to be used in making any findings pursuant to Section (a)(2).

This is likewise consistent with the language of the Responsiveness Summary, as well as principles of statutory construction. See diLeo v. Greenfield, 541 F.2d 949, 954 (2d Cir. 1976) ("A saving construction is especially appropriate . . . where a myriad of uncontemplated situations may arise and it is not reasonable to require a legislature to elucidate in advance every act that requires sanction. Some general "catchall" phrase may be incorporated to ensure that the legislature's inability to detail all matters meant to be proscribed does not permit clearly improper conduct to go uncorrected.")

Moreover, because both Section(a)(1) and Section(a)(2) require a threshold determination of significance in order to support a listing decision, Petitioners' reading of the regulation to foreclose application of a lesser standard under Section(a)(2) than Section(a)(1) is consistent with the regulatory language. There is further support for this interpretation in Section 375-1.4(c), which provides that the mere presence of hazardous waste at a site or in the environment is not a sufficient basis to find that a significant threat exists.

In addition, while the Responsiveness Summary states that it would be within the Department's authority to "adopt a regulatory standard by which a 'significant threat to the environment' might be found based on any environmental damage, however slight, attributable to the hazardous waste," the Responsiveness Summary goes on to note that "[I]t is important to observe, however, that the proposal does not so provide: the Department is adopting a standard by which a 'significant threat to the environment' premised on environmental damage may only be found based on an a [sic] significant level of environmental damage attributable to the hazardous waste." Responsiveness Summary at II-8 to II-9.

Nevertheless, Department Staff is correct that the underlying facts or information considered under subsection (b) that are relevant to the Section 375-1.4(a)(1) factors may also be taken into account in determining whether "significant environmental damage" has occurred within the meaning of the regulation, and that therefore hazardous waste at a site poses a significant threat. "Where general terms in a statute follow an enumeration of terms with specific meaning, the general terms can be expected to apply to matters similar to those specified." diLeo, 541 F.2d at 954 (citations omitted). For example, the "type, mobility, toxicity, quantity, bioaccumulation, and persistence of hazardous waste present at the site," as articulated in Section 375-1.4(b)(2), may be a factor the Commissioner relies upon in finding a significant threat under both subsection 375-1.4(a)(1)(iii) and Section 375-1.4(a)(2). The same facts or information may therefore be relevant to a significant threat determination under more than one section of the regulation.

Exceedances of Standards and Guidance Values

The regulation goes on to state that "[t]he mere presence of hazardous waste at a site or in the environment is not a sufficient basis for a finding that hazardous waste disposed at a site constitutes a significant threat to the environment." Section 375-1.4(c). The parties presented arguments as to the correct interpretation of this provision, particularly with respect to the presence of PCB contamination in environmental media, such as groundwater and soils at the Site, in excess of regulatory standards.

Pursuant to its authority under ECL Section 17-0301, the Department has classified the State's water bodies based upon their best usage and degree of purity. These are referred to as use-based standards, as opposed to standards based upon an identified impact to public health. Section 701.15 of 6 NYCRR designates fresh groundwater of the State as "Class GA fresh groundwaters." The regulation provides further that Class GA fresh groundwaters' best usage is as a source of potable water supply. Id. Pursuant to Section 703.5(f), the maximum allowable concentration of PCBs in fresh groundwater of the State is 0.09 micrograms per liter (0.09 parts per billion).

The Division of Water's Technical and Operational Guidance Series ("TOGS") 1.1.1 provides a compilation of ambient water quality standards and guidance values and groundwater effluent limitations. Exh. 27. That document tracks the regulation, and provides that the groundwater standard for PCBs is 0.09 micrograms per liter or parts per billion, which would apply to the sum of all Aroclors. Exh. 27; Tr. at 488. The surface water standard articulated in the TOGS for a Class C water body such as the Mohawk River is 1 x 10^-6 micrograms per liter (parts per billion). Id.

With respect to soils, the Department's Division of Environmental Remediation Technical and Administrative Guidance Memorandum ("TAGM") 4046 ("Determination of Soil Cleanup Objectives and Cleanup Levels", revised Jan. 24, 1994) indicates that the cleanup level for PCBs in surface soils is 1 part per million, and the cleanup level for subsurface soils is 10 parts per million. According to Department Staff, "[t]here is no standard or widely used guidance value for maximum allowable concentration levels in sediments. The Department makes a determination regarding the appropriate level of cleanup required for sediments on a case-by-case basis based on factors such as the biota that would be in contact with the sediment." Department Staff's Brief at 30.

At the hearing and in post-hearing briefing, Department Staff pointed out that PCBs found in environmental media at the Site and in the vicinity of the Site, including groundwater, have in some instances exceeded these values. Department Staff observed that "[i]n the Universal Waste case, there is not merely the existence of a violation of groundwater standards for PCBs at the Site, it is beyond dispute that PCBs disposed at the Universal Waste Site are the cause of the violation." Department Staff's Reply Brief, at 15.

Petitioners countered that such exceedances, standing alone, are insufficient to demonstrate that the Site is a significant threat within the meaning of the statute and regulations. Petitioners' Reply Brief, at 23. Petitioners went on to assert that "even if exceedances of environmental standards alone could be the basis of a significant threat listing, the violations are insignificant." Id. at 24. Petitioners pointed out that the single groundwater standard exceedance is minimal, that there are no drinking water wells that would be affected, and that the dissolved PCBs in the groundwater are "highly immobile due to their high retardation factor." Id. With respect to any water quality violations in the River, Petitioners noted that Department Staff's witness, Dr. Litten, stated at the hearing that the contribution of the Universal Waste Site to PCB levels in the Mohawk River is "not great." Id. at 24; Tr. at 169.

Both parties cited to the recommended decision in Matter of Gruner, which was adopted by the Commissioner on December 10, 1998. Decision and Order, at 1, 1998 WL 939492, *1. In that proceeding, the ALJ determined that in the context of the Part 364 regulations, contravention of a standard amounted to a significant adverse environmental impact, and found that such an impact existed, within the meaning of ECL Section 17-0501 and Part 364. Id. at 7, * 6. While the ALJ observed that because the nearest drinking water well was "a distance away," the applicant "may be correct that the site does not present a 'threat,' at least in the Part 375 sense," he went on to state that he could not "appropriately rely" on Part 375 to make that determination. Id. at 6-7, * 5-6. The ALJ reasoned that Part 375 addresses situations where cleanup at a site is necessary because damage has already been done, whereas the standards of Part 364 are intended to prevent damage before it occurs. Id. at 7, * 6. Because Matter of Gruner construed a different regulatory provision, it is not dispositive with respect to the precise issue presented here.

An earlier decision considered the regulations then applicable to inactive hazardous waste sites. In Matter of George A. Robinson & Co., Inc., the ALJ considered whether hazardous waste disposed of at a site constituted a "significant threat" within the meaning of ECL Section 27-1305. ALJ's Hearing Report at 32, 1994 WL 114901, * 34 (Mar. 2, 1994).⁸ At the time of the hearing in Matter of Robinson, an earlier version of the Part 375 regulations at issue in this proceeding had been declared invalid by the New York State Court of Appeals in Matter of New York State Superfund Coalition, Inc. v. New York State Dept. of Envtl. Conservation, 75 N.Y.2d 88 (1989) (holding that the mere presence of hazardous waste was not enough to support a legal determination that a site posed a significant threat). Matter of Robinson was therefore decided with reference to the statute alone. Matter of Robinson, Commissioner's Decision and Order, at 1, 1994 WL 114901, * 1.

In Matter of Robinson, the ALJ concluded that the record was "insufficient to support a conclusion that hazardous waste on the Site constitutes 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." Hearing Report at 32, * 34. The ALJ noted that "too little [was] 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," and concluded that Department Staff "cannot argue that a particular concern is a 'significant threat' without at least demonstrating that the applicable criteria could be exceeded." Id.

The Commissioner disagreed, concluding that there was sufficient evidence in the record to sustain a finding that the site constituted a significant threat, in light of the hazard to groundwater. Matter of Robinson, Commissioner's Decision and Order, at 6-7, 1994 WL 114901, *5-6 (Mar. 2, 1994). According to the Commissioner, "[t]he 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." Id. at 7, * 6. On a petition pursuant to CPLR Article 78, the Appellate Division, Fourth Department annulled the Commissioner's determination, stating that "under the circumstances of this case, we conclude that respondent's determination is not supported by substantial evidence in the record." Matter of George A. Robinson & Co., Inc. v. Marsh, 227 A.D.2d 953, 953 (4^th Dept. 1996).

Matter of Robinson describes two potential bases for a significant threat finding, by showing a potential for hazardous wastes on-site to contaminate groundwater to a degree that: (1) would impair the water's usefulness as a current or future water supply, or (2) to cause an adverse effect on an actual or reasonably foreseeable environmental receptor. It does not, however, state that the exceedance of a groundwater standard, without more, is sufficient to demonstrate the existence of a significant threat as that term is defined in the regulations.

The Department's guidance is consistent with this determination. While the Responsiveness Summary indicates that "contravention of an environmental quality standard may establish a present injury to the environment, even absent an immediate danger to human health," it also states that "[w]e believe that there can be instances where the violation of an ambient groundwater quality standard does not constitute a 'significant threat.'" Responsiveness Summary, at 11-16, 11-15. Accordingly, the contravention of groundwater standards, without more, is insufficient to establish the existence of a significant threat to the environment at this Site.

Consideration of Past Effects

In post-hearing briefing, Petitioners also maintained that "a significant threat listing is forward looking and cannot be based on past effects." Petitioners' Brief at 58-59. In support of this argument, Petitioners cited Matter of Lashins Arcade Co. v. Jorling, 221 A.D.2d 533 (2^nd Dept. 1995), in which the court affirmed the lower court's grant of a petition pursuant to CPLR Article 78 seeking to annul the Commissioner's determination directing petitioners to commence remediation of contaminated groundwater, without first affording petitioners a hearing. Because the decision in Matter of Lashins considered a different provision of the statute than that at issue here, it is of limited utility in construing the term "significant threat" in this proceeding.

Matter of Lashins dealt with the provisions of ECL Section 27-1313(b)(i)-(iii), where the Commissioner, after investigation and determining that hazardous waste at a site poses a significant threat, and "that such threat is causing or presents an imminent danger of causing irreversible or irreparable damage to the environment," may proceed without a hearing to develop and implement a remedial program for the site. The regulatory subsection at issue in Matter of Lashins tracks the language of Section 375-1.4(f) of 6 NYCRR, which addresses situations where the Commissioner must evaluate whether a significant threat to the environment "posed by hazardous waste disposed at a site makes it prejudicial to the public interest to delay action until a proceeding can be held pursuant to ECL article 27, title 13."

In affirming the lower court, the Appellate Division stated that "the record fails to support the conclusion that further environmental damage reasonably is anticipated to result during the period necessary to hold a hearing. The investigations sponsored by the DEC showed that while environmental damage had already occurred, there was no potential for further damage." Matter of Lashins, 221 A.D.2d 535. The court held that the Department's conclusion that the threat posed by the site made it prejudicial to the public interest to delay action pending a hearing was not supported by the evidence indicating that the overall level of groundwater contamination at the site was decreasing and the contaminant plume was not migrating. Id.

In light of the statutory scheme upon which it was decided, Matter of Lashins provides only scant support for Petitioners' position. Moreover, Matter of Lashins demonstrates the distinction between a finding that a significant threat exists currently merely because such an effect may have existed in the past, which is not consistent with the statute, as opposed to a finding based upon record evidence that such a threat is reasonably foreseeable given the disposal history or other information developed in the time before a site owner petitions for delisting. As Department Staff points out, the current regulations allow the Commissioner to consider the history of disposal at a site in making a significant threat finding. ECL Section 27-1305(1); Section 375-1.4(b)(3). Moreover, such information is relevant here in assessing the adverse impacts potentially attributable to the Site. Department Staff's witness, Mr. Farrar, testified that "migration of contaminants off the site in the past could lead to conditions which give rise to significant threat at the present day or in the future," and that knowledge of past levels of contamination "helps inform one's interpretation of what could have happened, what migration may have happened and what the impacts of that migration have been." Tr. at 743.

Nevertheless, the language of the regulation expressly states that a site constitutes a significant threat to the environment where "hazardous waste disposed at the site or coming from the site results in, or is reasonably foreseeable to result in," any of a series of enumerated adverse impacts. Section 375-1.4(a)(1). At the hearing, Department Staff's witness Mr. Swartout testified that "[w]e have not necessarily stated there's a significant effect right now," and that it was not necessary "to find there is a current threat or current impact." Tr. at 447-48. This is consistent with the wording of the regulation, which employs the present tense or in the alternative the future tense, and does not use the term "resulted in." Thus, the inquiry in this proceeding should focus on the impacts presently occurring at the Site, as well as those reasonably foreseeable to occur, taking into account that evidence of past effects could be relevant in assessing whether the hazardous waste at the Site currently results in, or is reasonably foreseeable to result in, a significant threat to the environment.

Res Judicata

In their post-hearing brief, Petitioners argued that a prior determination with respect to this Site establishes, by virtue of the doctrine of res judicata, a preclusive determination that the Site is not a significant threat to the environment. Specifically, Petitioners contended that ALJ Robert O'Connor reached this conclusion in a 1987 ruling on a motion for summary order. Petitioners' Brief, at 45 (citing Matter of Utica Alloys, Inc., Decision and Order, Hearing Report, and Ruling, 1987 WL 55369 (January 16, 1987)).

Petitioners maintained that "[s]ince that decision was taken, no new PCB waste has been deposited on the Site. Thus, unless DEC can point to information that has been generated since the previous ruling showing a significant impact that was not considered, or was underestimated, the Site cannot be classed as a significant threat." Petitioners' Reply Brief at 2. Petitioners went on to note that "as would be expected, measurements have confirmed that the Site is now having even less effect than it did at the time of the previous hearing." Id. According to Petitioners, the earlier ruling precludes Department Staff from using the same evidence it used or could have used to support a determination that the Site poses or will pose a significant threat.

"Under res judicata or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action." Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343, 347 (1999) (citations omitted). As Department Staff correctly points out, the language of the ruling does not support Petitioners' argument. In Matter of Utica Alloys, the ALJ ruled that "the question of significant threat to the environment will require further adjudication," and went on to bifurcate the proceeding to consider this question in the first phase of the hearing, as well as other threshold factual inquiries, before considering the issue of liability, if any. Matter of Utica Alloys, Inc., ALJ Ruling at 4, 6, 1987 WL 55369, *7, *9. The adjudication did not take place.⁹ Given this procedural posture, the doctrine of res judicata does not foreclose further inquiry in this proceeding into the question whether the Site poses a significant threat to the environment.

Petitioners also argued that the doctrine of res judicata should likewise attach to ALJ O'Connor's ruling that certain findings in a report prepared for Universal Waste in 1983 by Clayton Environmental Consultants, Inc. (the "Clayton Report") were insufficient to demonstrate the presence of a significant threat to the environment as a matter of law. In Matter of Utica Alloys, the ALJ noted that Department Staff's assertions that the presence of PCBs at the Site "in relatively high concentrations in the surficial soils" and in groundwater in excess of standards were based upon the Clayton Report. Id. at 3, * 7. According to the ALJ, "[t]hese assertions fail to establish the nature of the effect of these conditions on either the environment or public health." Id.

Petitioners maintained that Department Staff's attempts to use the Clayton Report findings as evidence to support its significant threat determination in this proceeding are foreclosed by the doctrine of res judicata, asserting that this evidence "was considered and rejected by ALJ O'Connor is [sic] his decision." Petitioners' Brief at 46. As discussed above, res judicata does not apply here because no final determination was rendered.

Nevertheless, the doctrine of issue preclusion supports Petitioners' position. Issue preclusion prevents a party from relitigating in a subsequent action or proceeding an issue that was clearly raised in a prior action or proceeding and decided against that party. Parker, supra, 93 N.Y.2d at 349 (citations omitted). Issue preclusion applies even if the tribunals or causes of action are not the same, as long as the issue in the second action "is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action." Id. (citations omitted).

In Matter of Utica Alloys the ALJ found that the data and conclusions drawn in the Clayton Report (i.e., that PCBs were present in the surficial soils in relatively high concentrations, and in the groundwater above the standards established in 6 NYCRR Part 703) were insufficient to establish that the Site presents a significant threat to the environment. ALJ Ruling at 3, * 7. The Commissioner's decision and order adopted the ALJ's findings and conclusions. Decision and Order, at 1, * 1. Therefore, due to the doctrine of issue preclusion, the Clayton Report, standing alone, cannot provide the basis for Department Staff's listing decision in this proceeding.

Effects on Species of Special Concern

In post-hearing briefing, Department Staff asserted that PCB contamination attributable to the Site has had a significant adverse impact on wildlife species of special concern, within the meaning of Section 375-1.4(a)(1)(i), specifically the Cooper's hawk, the common nighthawk, and the vesper sparrow. Department Staff's Brief at 61-62. In support of these arguments, Department Staff contended that

Id. at 62 (citation omitted). Department Staff went on to argue that because the Dump and the Site are in close proximity, "it is likely that these birds which are listed as species of special concern are located in the immediate vicinity of the Universal Waste Site." Id. Department Staff asserted that because PCBS tend to biomagnify, significant adverse impacts upon consumers at the top of the food chain, including the bird species in question, are reasonably foreseeable due to the contamination at the Site. Id. at 63.

Petitioners objected to the introduction of these arguments in post-hearing briefing, pointing out that neither the prefiled testimony nor any witnesses offered by Department Staff at the hearing discussed any alleged effects of the contamination at the Site on birds. Petitioners' Reply Brief at 12-13. According to Petitioners, Department Staff was attempting impermissibly to introduce an environmental effect that was not the subject of the hearing and then to shift the burden to Petitioners to demonstrate that the effect was not occurring. Id. at 13. Petitioners asserted that "[b]efore the burden shifts to Petitioners, DEC must first raise the issue at the appropriate time and then meet its burden of going forward by producing evidence to support its allegations of a significant effect." Id.

Petitioners went on to note that the ecological assessment in the Remedial Investigation/Feasibility Study ("RI/FS") for the Dump concluded that PCBs at that site did not pose a significant ecological risk in the terrestrial environment, and only a minor risk to birds that eat fish and birds that eat invertebrates. Exh. 31 at 5-34, 5-46 to 5-47. According to Petitioners, because the Cooper's hawk feeds on birds and small mammals, the nighthawk feeds on flying insects, and the vesper sparrow feeds on insects and seeds, none are aquatic species that are most at risk from PCB contamination. Petitioners' Reply Brief, at 14.

In addition, Petitioners discussed the differences in habitat between the Site and the Utica City Dump, pointing out that the former is sparsely vegetated, in contrast to the Dump site, and does not provide suitable habitat or foraging areas for these bird species. With respect to the backwater, Petitioners noted that even assuming contamination at that location could be attributed to the Site, the PCB levels (8 mg/kg) are lower than those reported in the RI/FS for the Utica City Dump site (20 mg/kg). Petitioners' Reply Brief at 14-15. According to Petitioners, because the consultant that prepared the RI/FS found that there would be insignificant adverse effects from PCB contamination at the Dump site even on those species most at risk, the species identified by Department Staff, "which are not those most at risk, would experience even lesser effects, if any." Petitioners' Reply Brief at 14.

Department Staff's arguments with respect to the potential for significant effects on species of concern are untimely, and even if timely made, those arguments are not persuasive. No evidence was offered at the hearing as to the effects of PCB contamination attributable to the Site on the specific bird species in question. Moreover, there is insufficient evidence in the record to support Department Staff's contentions, inasmuch as none of the birds were observed on the Site, and only the Cooper's hawk was seen at the Utica City Dump.

The RI/FS for the Dump discusses the effects of contamination on the great blue heron and spotted sandpiper, and assumed that the former feeds only on fish, and the latter on 50% crayfish and 50% mussels. Exh. 31 at 5-37 to 5-39. The RI/FS concluded that the risks from PCB contamination were relatively low for fish-eating birds, and a moderate risk for birds eating primarily invertebrates. Exh. 31 at 5-46, 5-47. As Petitioners point out, the birds identified by Department Staff in its brief rely on other food sources than fish and invertebrates, and prefer a habitat different from that found at the Site. The record supports Petitioners' contention that no significant effect on these species is occurring or is reasonably foreseeable to occur, both because their presence at the Site or at areas potentially influenced by contamination at the Site is questionable, and even if such birds are present, the likelihood of any significant impact is minimal. Without more, Department Staff's arguments on this point are speculative.

Effects on Protected Streams

Department Staff contended further in its post-hearing brief that the Site poses a significant threat pursuant to Section 375-1.4(a)(1)(ii) because of impacts or potential impacts on a protected stream, pursuant to Section 608.1 of 6 NYCRR. Section 608.1(p) defines a protected stream as "any stream or particular portion of a stream" for which certain classifications have been adopted, including, in the case of the Mohawk River, A, A(t),¹⁰ B, and C(t). The portion of the Mohawk River in the vicinity of the Site is designated Class C. Tr. at 488.

Department Staff noted that some areas of the Mohawk downstream of the Site are classified as protected pursuant to Section 608.1. Department Staff maintained that:

Department Staff's Brief at 63-64 (emphasis added). According to Department Staff, the backwater area is part of the Mohawk River, and both are encompassed within the regulatory definition of a "protected stream" because of their influence on protected areas of the River.

Petitioners responded that any alleged effects on such areas were insignificant, and also took issue with Department Staff's characterization of the area near the Site as a protected stream. Petitioners pointed out that the Site is located within the reach of the Mohawk River that is designated "C," and that "the nearest stretch of the Mohawk River that is a 'protected stream' is ten miles downstream." Petitioners' Reply Brief at 16. Petitioners argued that "the Site and the backwater together are having no measurable effects on the Mohawk River at its nearest points and will not foreseeably have any such effects." Id. According to Petitioners, in light of this, as well as the existence of other, more significant sources upstream and downstream, Department Staff cannot list the Site as a significant threat based on an impact on a protected stream.

Petitioners observed that Department Staff did not cite to any other instances when it employed this interpretation of the regulation, and that Petitioners found no prior decisions consistent with Department Staff's view. Petitioners argued further that it was not clear that the backwater was even included within the regulatory map Department Staff relied upon in contending that the backwater is part of the River, and that in any event, the PCBs in the backwater are immobile and therefore do not affect the main part of the River.

As discussed below, Petitioners met their burden to show that PCBs disposed of at the Site do not pose a significant threat to the backwater or the River itself. Petitioners' witness, Dr. Boehm, testified that PCBs from the backwater area are not influencing the mass of PCBs in the River. Tr. at 51. Moreover, Department Staff's witness, Dr. Litten, testified that the influence of the backwater on PCBs in the River is "not great," and acknowledged that there is no significant increase in PCB readings downstream of the Site. Tr. at 169.

This testimony was corroborated by Dr. Hennet, who concluded that the results of sediment sampling showed that there was no measurable input of PCB contaminated sediments from the Universal Waste Site to the River. Tr. at 341. Accordingly, the record does not support a finding that the Site poses a significant threat because of an existing significant adverse impact or a reasonably foreseeable significant adverse impact on a "protected stream" as that term is defined under Section 608.1(p). In this case, any such impact of the Site on the portion of the Mohawk River that is classified as C(t) would result from an impact on the backwater or the portion of the River, designated as a Class C, in the vicinity of the Site.

Moreover, Department Staff's contention that Section 375-1.4(a)(1)(ii) extends to impacts or reasonably foreseeable impacts "upon any stream for which all or part of the stream is defined as a protected stream" is not supported by the express language of Section 608.1(p). Research has not revealed support for this reading of the regulation, which would essentially nullify the phrase "or particular portion of a stream" and render it superfluous. Such a reading of the regulatory language is not consistent with a basic principle of statutory construction. See Matter of Scoglio v. County of Suffolk, 85 N.Y.2d 709, 713 (1995) (construction that rendered preceding general provision of law surplusage violated settled tenet of statutory construction that effect and meaning must be given, if possible, to every part and word of a statute) (citing Sanders v. Winship, 57 N.Y.2d 391, 396 (1982), McKinney's Cons. Laws of N.Y., Book 1, Statutes § 98).

While Department Staff's rationale for its interpretation, generally speaking, is not without some foundation in light of the potential for an adverse effect on a designated protected stream portion as a result of contamination flowing from another area of the water body that is not so designated, in this case that rationale cannot support a reading of the regulation contrary to its express language. Accordingly, the record does not support a finding that a significant adverse effect on a protected stream within the meaning of Section 375-1.4(a)(1)(ii) is occurring, or that such an effect is reasonably foreseeable.

DISCUSSION

On-Site PCB Contamination

Petitioners took the position that Department Staff's listing determination was legally deficient because that determination was based upon a finding that a significant threat exists due to the mere presence of hazardous waste on-Site. Department Staff asserted that the PCB levels on the Site itself are sufficient to support a determination that the contamination poses a significant threat to the environment, apart from any effects attributable to off-Site PCB migration. The subsections of this hearing report that follow discuss the Site's disposal history and the investigations undertaken at the Site to determine the nature and extent of PCB contamination.

Disposal History

In its direct case, Department Staff offered testimony that since approximately 1957, Universal Waste operated a salvage yard for scrap iron, copper and stainless steel. Swartout Prefiled at 5. As part of those operations, PCB contaminated oils from capacitors and transformers received from Special Metals, Inc. and Niagara Mohawk were disposed of on the Site. Swartout Prefiled, at 5; Exh. 15, at 2-3; Exh. 50, at 2. Department Staff estimated that the total amount of PCB-containing materials disposed of at the Site from Special Metals alone between 1957 to 1978 was 25.7 tons. Department Staff's Brief at 16-17; Exh. 50.

At the hearing, John Iannotti, P.E., the Department's Manager of Environmental Auditing and Compliance, Division of Operations, offered testimony concerning a transcript of proceedings that took place on April 29, 1981 as part of the Department's investigation of the Site. In that transcript, James Williams, a former employee of Universal Waste, described disposal of hazardous waste, including PCBs, that occurred during Site operations. Exh. 7. Mr. Williams was not produced for cross-examination in this proceeding, and Mr. Iannotti acknowledged on cross-examination that he had no personal knowledge of the activities described by Mr. Williams. Tr. at 41.

Petitioners objected to the receipt of the transcript of Mr. Williams's testimony, asserting that Mr. Williams's credibility was suspect, that in the absence of a witness with personal knowledge of the alleged activities, the testimony was hearsay, and that in any event, the testimony was of questionable relevance. Tr. at 38, 41. Petitioners raised similar objections with respect to Exhibit 12, a September 6, 1979 memorandum authored by a Department employee memorializing an interview with a former Universal Waste employee. Tr. at 40.

Department Staff argued that the transcript was qualified through foundational questions in Mr. Iannotti's prefiled testimony, and that the document is a record maintained by the Department and therefore admissible under the State Administrative Procedure Act ("SAPA") Section 306(2). Tr. at 38-39. The statute provides in pertinent part that "[a]ll evidence, including records and documents in the possession of the agency of which it desires to avail itself, shall be offered and made a part of the record." The ALJ received the exhibits into evidence, ruling that the Petitioners' objections went to weight.

At the hearing on rebuttal, Bert Copple, a Utica Alloys employee, testified as to Mr. Williams' criminal record which includes convictions for possession of stolen property and burglary. Copple Prefiled at 2. Petitioners also provided a copy of Mr. Williams's criminal record. Copple Prefiled at 2; Exh. 29.

In light of the complete record of the hearing, Mr. Williams's testimony is of doubtful reliability and should be accorded little weight. Petitioners had no opportunity to cross-examine Mr. Williams in this proceeding, and the transcript of his testimony indicates that with respect to some points for which that testimony was offered his knowledge was limited or contradicted by other testimony, and thus did not constitute probative evidence. Specifically, Mr. Williams testified as to the presence of floor drains in the buildings at the Site, and appeared to indicate that all but one of the drains discharged directly to the ground. Exh. 7 at 26-27. According to Mr. Williams, the remaining drain located in the main building at the Site was connected to the sewer. Id. at 27. Nevertheless, in response to a question concerning any blockages in the drains, Mr. Williams stated that "I think we usually got an overflow from the Mohawk River inside the building so other than that, I don't know how the drains work." Id. at 26.

In addition, as discussed below, Department Staff offered evidence concerning periodic flooding at the Site. Mr. Williams stated that the Mohawk River "[b]acked up three times in the ten years I was there. And it would go in some places three foot high." Id. at 37. This testimony is duplicated in other, more reliable evidence in the record that the water on the Site was three feet deep during a flood. Exh. 11.

In any event, it is undisputed that PCBs were released to the environment as a result of Site operations, and are present at the Site today. Moreover, ALJ O'Connor found no triable issue of fact in Matter of Utica Alloys, Inc. where it was undisputed that PCBs "are present in the surficial soils and groundwater on and under portions of the Site, respectively." ALJ's Ruling at 3, 1987 WL 55369, * 6 (Jan. 16, 1987). As discussed above, the inquiry in this proceeding should focus on the whether a significant threat presently exists or is reasonably foreseeable as a result of contamination attributable to the Site.

Sampling in 1977, the Clayton Report (1983) and the CDM Report (1993)

In his testimony, Mr. Swartout referred to an April 5, 1979 memorandum from Berton Mead, a regional engineer in the Department's Region 6 office, to Charles Goddard, of the Bureau of Hazardous Waste. Swartout Prefiled at 7; Exh. 10. According to the memorandum, seven earth and sediment samples taken in 1977 were analyzed for PCBs. Id. Six of the surface samples, taken at a depth of six inches, were taken from the Universal Waste Site. Id. One sample was taken from ditch sediment off-site. Id. According to the memorandum,

Id.

Mr. Swartout testified that in 1983 Universal Waste hired Clayton Environmental Consultants to conduct an investigation of potential contamination at the Site. Swartout Prefiled at 11. A field investigation report dated March 21, 1984 (the "Clayton Report") was submitted to Department Staff, but the report was never approved by the Department. Id. at 11-12; Exh. 3-8; Tr. at 490. Mr. Swartout testified that the Site was listed as a Class 2 site in 1986 based upon technical information in the Clayton Report, "as well as earlier information obtained by the Department." Swartout Prefiled at 13.

The Clayton Report states that PCBs were found in surficial and subsurface soils at the Site. Swartout Prefiled at 12; Exh. 3-8, at 8, 15. The results of analysis of one sample showed PCBs up to 36,000 parts per million ("ppm"). Swartout Prefiled at 12; Exh. 3-8, at 16. PCBs were also detected in all groundwater samples, and PCB levels in samples taken downgradient were one to two orders of magnitude greater than levels in samples obtained from upgradient wells. Id.

Although only PCB Aroclor 1254 was found on the surface of the property, the Clayton Report indicates that both 1254 and 1262 were detected in the groundwater at the Site. Exh. 3-8, at 16. On cross-examination, Mr. Swartout was questioned concerning this section of the Clayton Report, which goes on to state that the presence of both 1254 and 1262 in groundwater, coupled with the fact that PCBs were detected in upgradient wells, indicated that "offsite sources may be contributing to this contamination." Exh. 3-8 at 16-17, Tr. at 452.

Mr. Swartout was also asked to refer to the discussion and findings section of the Clayton Report, which concludes that "[t]he degree to which the Utica Alloys operations have contributed to this contamination can not be determined at this time because wells determined to be upgradient (based on water level measurements taken during periods of high and low water levels) of the operations were also contaminated with these same compounds." Exh. 3-8 at 23; Tr. at 452. According to the Clayton Report, "[d]ata indicate a significant contribution from offsite sources, which should be investigated further." Id.

Mr. Swartout went on to discuss an August 1996 report prepared by Camp, Dresser & McGee (the "CDM Report") as part of a preliminary site assessment ("PSA"). Swartout Prefiled at 15; Exh. 3-11. The CDM Report described sampling of Site soils and the storm and sanitary sewers, as well as a video inspection of those sewers. Swartout Prefiled at 15; Exh. 3-11 at 2-4, 2-5. According to the CDM Report, samples collected from the soils and storm and sanitary sewers indicated that PCBs in the soils at the Site "do not appear to be coming from an offsite and upgradient source, by way of the sewer system" onto the Site. Swartout Prefiled at 16; Exh. 3-11 at 5-1.

Although no groundwater samples were collected off-site and upgradient due to a clay layer that was encountered, the CDM Report stated that PCBs were only detected in the soils in close proximity to or in front of [the] property and in the storm sewer manholes at the intersection of Wurz and Leland Avenues." Id. The CDM Report concluded that "[b]ased upon the data collected during this PSA, a review of available records and PRP investigation, no further investigation of potential off-site sources is required at this time." Id.

Mr. Swartout testified at the hearing concerning the subsurface soil and groundwater investigation described in the Clayton Report. Tr. at 429. The witness stated that monitoring well B-5 was downgradient of well B-6, and noted that the levels of Aroclor 1254 in those wells were 0.10 and 0.018, respectively. Tr. at 431-32; Exh. 3-8 at 12 and Table F. Mr. Swartout went on to testify that the area where PCBs were historically disposed of at the Site is in the general vicinity of well B-6. Tr. at 433.

On cross-examination, after reviewing other documents in the record, Mr. Swartout acknowledged that he did not know whether groundwater migrated from well B-6 to B-5. Tr. at 479. He stated that "[i]t may be that the source of the groundwater coming into B5 would be further to the north and west of the B6 location, which would be over closer to the main building facilities of Universal Waste rather than the area out near the ditch." Tr. at 479-80.

The Clayton Report concluded that "[t]he groundwater under the property is contaminated with PCBs and various toxic contaminants, and is therefore in violation of Class GA water quality criteria." Exh. 3-8, at 23. The Clayton Report noted that groundwater at the Site was not being consumed by humans, and thus did not pose an immediate health hazard, but stated that the groundwater discharge to the Mohawk River could reach human receptors. Swartout Prefiled at 12-13; Exh. 3-8 at 23.

As noted above, ALJ O'Connor determined that the data and conclusions in the Clayton Report were insufficient to establish that conditions on the Site presented a significant threat. The testimony of Department Staff's witness provides no basis to disturb that determination, and therefore that determination should be afforded preclusive effect. While Department Staff may rely upon the Clayton Report as part of its case, the Clayton Report, standing alone, does not provide a basis to conclude that on-Site contamination constitutes a significant threat to the environment.

Similarly, the CDM Report does not establish the existence of a significant threat. The investigation undertaken by CDM was intended to identify potential off-site sources. The CDM Report does not discuss potential significant effects due to contamination on-Site, and no groundwater was sampled as part of the investigation. Moreover, the sampling locations selected for that investigation were primarily in the western portion of the Site, and do not provide information concerning levels of PCBs migrating from the Site itself into the backwater. As discussed further in this hearing report, Petitioners met their burden to demonstrate that to the extent any migration of PCBs from the Site is occurring, any effect on environmental resources is insignificant, and no significant threat is reasonably foreseeable.

"Trommelling"

Department Staff's witness, James Ludlam, P.E., testified concerning a soil treatment program undertaken at the Site in or around the summer of 1997. Mr. Ludlam stated that he attended a meeting on February 11, 1998 where representatives of Universal Waste indicated that a process called "trommelling," where Site soils were fed into an apparatus to remove metals, fluff and other pieces of debris, had taken place. Ludlam Prefiled at 2-3.

According to Mr. Ludlam, trommelling results in more highly contaminated soils being mixed with less contaminated soils, "thereby homogenizing the Site's soils and causing PCB contamination to affect a greater quantity of soils than had previously been the case." Id. Mr. Ludlam testified further that while an analysis of individual soil samples would show lower levels of contamination, the contamination at the site would be more widespread, and PCBs in areas of higher concentration would be diluted by mixing with less contaminated soils. Id. at 3-4.

In his prefiled testimony, Mr. Ludlam indicated that Universal Waste did not seek Department approval before the soil trommelling operation took place, and that the Department did not learn of this activity until the February 1998 meeting. Id. at 3. At the hearing, Petitioners introduced documents demonstrating that Department Staff had in fact been notified by letter dated May 7, 1997 that Universal Waste intended to undertake the trommelling operation, and that upon receiving that notification, Department Staff advised Universal Waste to "proceed with caution." Tr. at 417-19; Exhs. 23 and 24. The May 7, 1997 letter stated that the trommelling operation was not intended as a remediation measure, and that Universal Waste would avoid disturbing locations where high levels of PCBs had been found. Tr. at 418; Exh. 23.

On rebuttal, Bert Copple, control and compliance manager for Utica Alloys, testified that analyses by Universal Waste's consultant, Stearns & Wheler, of samples of the soil piles to be processed in the trommelling operation showed PCB levels ranging from non-detect to 19 mg/kg. Copple Rebuttal at 1; Exh. 28. In a letter dated April 29, 1997, reporting those results, Stearns & Wheler noted that PCBs were detected in five of the six samples "and therefore should be considered generally present in the soils." Exh. 28 at 1. The letter went on to state that "[t]he levels do exceed NYSDEC clean up goals of 1 ppm for surface soils but are not at levels that constitute hazardous waste." Id.

Although Mr. Copple testified on cross-examination that the samples were taken after the trommelling operation took place, the exchange of correspondence appears to indicate otherwise. Tr. at 530, 533. The May 7, 1997 letter from Universal Waste advised that the trommelling operation was planned for the summer. Exh. 23. The sampling results reported were attached to the April 19, 1997 letter from Stearns & Wheler, which indicated that "[o]n April 22, 1997 we collected soil samples from various scrap piles around the Universal Empire [sic] property." Exh. 28.

Mr. Copple testified that the samples analyzed were created by compositing a number of soil samples. Tr. at 534. The witness acknowledged that this procedure could indicate that for a particular sample with a level of 19 parts per million, one or more of the discrete samples contained PCBs at a higher level. Tr. at 535. As Department Staff's witness Mr. Farrar testified, ECL Section 27-1301(1) was amended in 2003. Farrar Prefiled Rebuttal at 15. That amendment expanded the definition of "hazardous waste" to include the Department's list of hazardous substances set forth at Part 597 of 6 NYCRR. Id. Aroclor 1254 is included on that list, and as a result, Aroclor 1254 at any concentration level is a hazardous waste, regardless of the concentration of PCBs. Id.

In its brief, Department Staff pointed out that PCBs in four of the six soil samples exceeded the 1 ppm cleanup level for PCBs in surface soils, as set forth in TAGM 4046. Department Staff's Brief at 21. Department Staff argued that "[t]he 1997 sampling results must be read with caution, because each sample analyzed was created by the compositing of an unknown number of discreet [sic] samples." Id. at 22. As noted, according to Department Staff, as a result of the tromelling, PCB contamination would be more widespread, even if individual soil samples showed lower levels of contamination.

In light of the chronology discussed above, it is not clear that the sampling was performed after the trommelling operation took place. In addition, Mr. Copple stated that he did not know if the samples were taken from locations where soil was removed for trommelling, or whether the material was trommelled and returned to the soil pile and thus remained in essentially the same location. Tr. at 532. Based upon this record, the effect of the trommelling operation on PCB contamination on-Site has not been established.

Preliminary Site Assessment ("PSA")

On rebuttal, Mr. Swartout testified concerning a declaratory ruling issued by the Department's General Counsel on February 11, 1994. Swartout Prefiled Rebuttal at 6-7. The declaratory ruling indicated that

Matter of Universal Waste, Inc., and Utica Alloys, Inc. and Clearview Acres, Ltd., Declaratory Ruling, DEC 27-28, at 2 (Feb. 11, 1994) (emphasis in original).

In May of 2000, Universal Waste agreed to conduct a PSA at the Site. Swartout Prefiled at 16. Universal Waste retained Stearns & Wheler to conduct the PSA, which Mr. Swartout testified was intended "to collect additional data to assist in determining whether the conditions at the Universal Waste site constituted a significant threat to human health or the environment." Id. In its brief, Department Staff noted that a PSA is used "to determine whether a site meets the State's definition of an inactive hazardous waste disposal site by confirming or denying the presence of hazardous waste and determining whether the site poses a significant threat to the environment." Department Staff's Brief at 10; Exh. 53A at 1; Tr. at 774-75.

Specifically, Stearns & Wheler was charged with investigating the Site's surface and shallow sub-surface soils, the Site groundwater, the sewer line bedding, off-Site surface water, and sediment conditions in the sewer outfall channel. Swartout Prefiled at 16. Mr. Swartout stated that the "[p]ipe bedding material along the storm sewer that runs underneath the Site was to be sampled and analyzed to determine if the sewer could be a source of actual impact or if the bedding could be a preferred pathway of migration of the contaminants." Id. at 16-17.

In January 2001, Stearns & Wheler submitted a report (dated January 2000) in draft form (the "S&W Report") that was never finalized by the consultants or approved by the Department. Id. at 17; Exh. 3-5. According to Mr. Swartout, Stearns & Wheler did not investigate the sewer line bedding, and although three test pits were dug along the active storm sewer line and the abandoned sewer line, the sewer bedding could not be located due to the depth of the sewers. Swartout Prefiled at 17. The witness went on to note that shallow groundwater was encountered during the excavation of the test pits. Id.

Mr. Swartout testified that the S&W Report demonstrated "the continued presence of PCBs in the surficial and also subsurficial soils, despite the fact that spillages and disposal had presumably ceased several decades ago on the Site." Id. He asserted that although on-site PCB "hot spots" had allegedly been removed several years before the PSA was conducted, no documentation was provided regarding the removal of that contamination, and the subsequent S&W Report reflected that PCBs were still detected at elevated levels on the Site. Id. at 17-18.

At the hearing, Mr. Swartout noted that Aroclor 1254 was detected in all of the soil samples taken at the Site. Tr. at 425-26; Exh. 3-5, Table 2. The S&W Report indicated that elevated levels of PCBs on the Site have been found in the east-central part of the Site, near the outfall channel, and in the southern portion of the Site near the railroad tracks. Exh. 3-5 at 8. In the east-central area, concentrations ranged from 26 to 120 parts per million. Id. The surface sample concentrations ranged from 42 to 120 ppm, and at a depth of 12 to 18 inches in the subsurface, PCB concentrations in samples ranged from 26 to 60 ppm. Id. The S&W Report noted that "[o]ver the remainder of the Site, PCB concentrations were generally below 50 ppm, and in most cases, below 10 ppm." Id. at 9.

Mr. Swartout testified concerning a letter he prepared in April 26, 2002, commenting on the S&W Report. Swartout Prefiled at 18; Exh. 3-6. In that letter, Mr. Swartout observed that PCB levels in the sewer outfall channel exceeded those in Mohawk River sediment. Swartout Prefiled at 18; Exh. 3-6 at 2. Specifically, the highest level of 8.1 ppm was detected in a sample taken adjacent to the sewer outfall pipe, which the witness noted was within 150 feet of the largest area of PCB contaminated soil found on the Site. Swartout Prefiled at 18-19; Exh. 3-6 at 2. As discussed below, however, on cross-examination Mr. Swartout acknowledged that this result was qualified. Tr. at 460-63.

In the letter, Mr. Swartout stated that PCB contamination at the outfall "seems to be more likely site related since the sewer discharge channel is located adjacent to the primary area of PCB contamination at the Universal Waste site." Swartout Prefiled at 19; Exh. 3-6 at 2. The letter noted further that "[i]n terms of access and exposure to site-related contaminants, the greatest risk under current conditions appears to be biota due to the PCBs which are entering the aquatic ecosystem." Id. According to the letter, an asphalt cap would inhibit stormwater runoff from washing PCBs from surface soils into adjacent waterways, but should not be placed over the contaminated area without first taking into consideration removal of contaminated soils. Id. The letter concluded that a remedial investigation/feasibility study ("RI/FS") "is needed to give proper consideration to this matter, as well as others such as remediation of the sewer discharge channel." Id. Mr. Swartout testified that Stearns & Wheler did not address these comments, and that the S&W Report was never finalized. Swartout Prefiled at 20.

The witness stated that Stearns & Wheler conducted further work at the Site, and that he learned of this additional work after reviewing exhibits provided as part of the delisting petition. Swartout Prefiled at 20; Exh. 3-7. He testified concerning a supplement to the S&W Report, by letter dated December 19, 2002 (the "Letter Report"), which discussed additional sampling for PCBs on the Site. Exh. 3-7.

Four soil borings, three of which were completed as monitoring wells, were installed along the sewer route, where soil samples were taken at various depths. Swartout Prefiled at 20; Exh. 3-7 at 1. According to the Letter Report, the borings were advanced to fifteen feet, and encountered artificial fill material consisting of silt, sand, gravel, and brick and wood fragments. Tr. at 428; Exh. 3-7 at 2.

PCB levels were detected at all four locations and in every soil sample but one, and concentrations ranged from 4 to 20 ppm. Swartout Prefiled at 20-21; Exh. 3-7 at Table 1 and Figure 2. In three out of the four bore holes, PCBs were detected at a depth of 14-16 feet. Tr. at 428-29; Exh. 3-7, Figure 2. The highest level of PCBs detected (19.6 ppm) was from a sample taken 4 to 6 feet below grade in the vicinity of the former settling pond. Swartout Prefiled at 21; Exh. 3-7 at 2, Table 1 and Figure 2; Tr. at 427. The witness noted that this location was in the same general area where a pile of capacitors was reported in 1977, and where a soil sample taken at that time showed PCB levels of 51,200 ppm. Swartout Prefiled at 21. Based on this information, Mr. Swartout concluded that PCB contamination on-site "extends deeper than was discerned from prior sampling," and that PCBs were being leached out of the soil by groundwater. Id.

Mr. Swartout testified that the information provided by Stearns & Wheler indicates that PCBs have migrated downward and are in the saturated soils near the storm sewer. Id. at 25. The witness also concluded that this downward migration of PCBs indicates that it is likely that

Id. at 26. This conclusion is at odds with the Letter Report, which indicated that subsurface migration was not occurring, and that PCBs were not being transported through groundwater or sediment transport in the storm sewer or the sewer bedding. Exh. 3-7 at 3.

The S&W Report stated that at the Department's request, a surface water sample was taken from the sewer outfall area. Exh. 3-5 at 11. No PCBs were detected in that sample at levels that exceeded the method detection limits. Id. at 12, 13. The S&W Report noted that PCBs were present in the sediment at the outfall, but at levels under 10 ppm. Id. at 13. Four sediment samples were collected, one from sixty feet upstream of the backwater and one fifty feet downstream. Id. at 7. Two sediment samples were taken in the backwater, one twenty feet downstream, and one adjacent to the storm sewer outfall. Id.

According to the S&W Report, PCBs were found in surface soils and shallow subsurface soils at depths from 12 to 18 inches, up to 1302 ppm. Swartout Prefiled at 18, Exh. 3-5 at Table 2. Thirty samples were taken, of which three had PCB levels below the unrestricted surface soil level of 1 ppm. Id. On cross-examination, Mr. Swartout acknowledged that the results in Table 2 were in error by a factor of 1,000, so that rather than 1302, the number should read 1.3. Tr. at 458-59. The witness noted that this result was also coded with the letter "J," which indicated that "analyte was positively identified. Reported value may not be accurate or precise." Tr. at 458, Exh. 3-5, Glossary of Data Qualifiers.

Mr. Swartout noted that the letter "R" following a sample result indicated that the result was unusable, and that "the presence or absence of this analyte cannot be verified. Supporting data necessary to confirm result." Tr. at 460, Exh. 3-5, Glossary of Data Qualifiers. He acknowledged that the results for one of the sediment sampling points adjacent to the outflow pipe in the backwater where PCBs were detected at high levels were qualified with a "J" and an "R." Tr. at 462. The witness also acknowledged that sampling results from the point twenty feet from the outfall pipe were considerably lower, and were not qualified. Tr. at 462-63. Mr. Swartout testified further on cross-examination that the cleanup level for PCBs in subsurface soils is 10 parts per million, and that only one of 28 soil boring samples taken at the site exceeded the cleanup level. Tr. at 463-64.

Mr. Swartout acknowledged that the PSA found low levels of groundwater contamination, but pointed out that while the levels were low in absolute terms, groundwater standards were exceeded. Tr. at 453. He also acknowledged that the groundwater results were non-detect for PCBs, with one exception at 0.34 micrograms per liter (parts per billion). Tr. at 454. According to Petitioners' witness Dr. Hennet, levels of this magnitude would make an infinitesimal contribution to PCBs flowing from the Site into the River. Tr. at 358. Dr. Hennet also argued that the 0.34 ppb result may not be representative of actual Site conditions, because the sample in question was taken from a test pit and not a monitoring well, and in consequence may have been contaminated by PCBs in sediment. Tr. at 352-54.

In post-hearing briefing, Department Staff correctly maintained that hazardous waste need not migrate from the Universal Waste Site in order for the Site to present a significant threat to the environment, and pointed out that "[l]imited sampling undertaken by the Department in 1977 showed PCB 'hot spots' at levels as high as 50,000 parts per million (ppm) or 5% PCB." Department Staff's Brief at 7. Department Staff went on to note that "[n]o evidence has been provided to the Department that PCBs have been removed from the Site, other than through the processes of migration." Id. Department Staff observed that analytical testing undertaken after the trommelling operation shows widespread contamination, "but lacks the areas of extremely high concentrations identified in both sampling events which occurred prior to trommelling." Id. at 32. As noted above, however, it is not clear that the analytical testing took place before the trommelling process occurred.

Petitioners countered that Department Staff had not alleged that contamination at the Site was significantly affecting any environmental resource, or that any such significant effect was reasonably foreseeable. Petitioners argued that Department Staff had alleged only that PCBs were present on the Site, and that this allegation was insufficient to establish the existence of a significant threat within the meaning of the statute and the regulations.

Petitioners pointed out that the TAGM 4046 cleanup guideline levels are 1 ppm for surface soils and 10 ppm for subsurface, fifty to five times less than the 50 ppm that constituted hazardous waste under the regulations in effect at the time of the decision in Matter of New York State Superfund Coalition, Inc. v. New York State Dept. of Envtl. Conservation, supra, where the Court of Appeals invalidated the former Part 375 regulations. Petitioners' Reply Brief at 22. The court held that "more than the mere presence of hazardous waste - which is always potentially hazardous - must be proven before a 'significant threat' declaration under this regulatory scheme can be justified." 75 N.Y.2d 88, 92 (1989).

Petitioners went on to note that ALJ O'Connor reached the same conclusion in Matter of Utica Alloys, and argued that Department Staff could not rely upon the mere presence of PCBs higher than the cleanup level, "which is far below the former hazardous waste level, to show that the Site is a significant threat." Petitioners' Reply Brief at 22-23. With respect to migration, according to Petitioners, Department Staff's comments on the PSA in a letter dated April 26, 2002 (Exh. 3-6) "indicate[] that the conclusion that the PCBs on the Universal Waste Site are migrating off-site is based solely on the spatial proximity between the PCBs in the sewer discharge channel and those on the Universal Waste Site." Exh. 3 at 7-8.

Department Staff asserted that "the plain language of the regulations and a prior administrative ruling indicate that on-site impacts are sufficient to support a determination that hazardous waste disposed at a site constitute [sic] a significant threat to the environment," citing to Matter of Syracuse Die-Casting and Manuf. Co., Inc., Commissioner's Decision and Order, 1988 WL 158303 (Mar. 10, 1988). In that Decision, the Commissioner held that a significant threat existed where PCBs on the site of a former die-casting facility were detected at levels as high as 46,700 parts per million. Id. at 7, * 8. After some contamination was removed, PCBs were still found at levels up to 1200 parts per million. Id. The Commissioner concluded that the PCB concentrations in soils were sufficient to warrant implementation of a remedial plan. Id. at 2, * 2.

While Department Staff is correct that the regulations clearly do not require that contamination migrate off-site in order to establish a significant threat, Matter of Syracuse Die is not controlling in this case. The ALJ noted in his hearing report that at the time the proceeding took place, the Part 375 regulations had not yet been promulgated, and went on to conclude that even the regulations ultimately promulgated on April 16, 1987 were "not directly applicable to this proceeding as they were not expressly given retroactive application." Id. at 3, * 4. Matter of Syracuse Die was an enforcement action that was decided under the earlier version of the Part 375 regulations, and is therefore distinguishable from this proceeding.

Moreover, the ALJ rejected Department Staff's contention that "since the Site is one of uncontrolled improper disposal of hazardous wastes, it constitutes a per se significant threat to the environment," and observed that "[a]ccording to the statute a logical construction requires finding that the mere presence of improperly disposed of hazardous wastes at a site does not, as a matter of law, require a finding that the site constitutes a significant threat to the environment." Id. at 10, * 9-10. The ALJ did not reach any conclusion as to whether the PCBs present on the site constituted a significant threat to the environment, stating that "[i]t is within the discretion and expertise of the Commissioner to make that determination." Id. at 10, * 10. As discussed above, the Commissioner in fact determined that the site posed a significant threat, based upon the PCB levels in soils.

Nevertheless, as the ALJ noted in Matter of Robinson, supra, the precedential value of Matter of Syracuse Die

Hearing Report, at 33, 1994 WL 114901, * 35. The same reasoning applies here, because a determination of "significant threat" is necessarily site-specific, and based on the unique facts of each case.

As Petitioners pointed out, while PCB levels on-Site in some cases exceed regulatory standards or guidance, in this case those exceedances do not amount to a significant threat, which is required for a listing determination according to the language of the statute and the regulations. Although it is undisputed that sampling results showed levels of PCB contamination in the groundwater at the Site above the standard of 0.09 micrograms per liter in some instances, the highest level detected was 0.34 micrograms per liter. There is no evidence in the record that this groundwater is being used, or will be used, as a water supply. This proceeding is therefore distinguishable from Pall Corp. v. New York State Dept. of Envtl. Conservation, Index No. 23617/97 (Sup. Ct. Nassau Cty. 1998), where the court upheld the Commissioner's decision that contamination on the site in question was a significant threat, in part because the site was located on top of the sole source drinking water aquifer on Long Island. Pall Corp. at 4.

Petitioners' arguments regarding a lack of any significant threat or material impact on the environment due to contamination attributable to the Site were persuasive, in light of the relatively low levels of PCBs detected in samples taken during the PSA and in the subsequent round of sampling. Moreover, although Stearns & Wheler's letter of April 29, 2997 transmitting the results of sampling at the scrap piles stated that workers should take precautions, including wearing gloves and air filters or respirators and exercising caution with regard to accidental ingestion, that letter also indicated that "PCB concentrations are not significantly high." Exh. 28 at 1. The evidence offered by Department Staff in rebuttal did not establish the existence of any of the significant adverse impacts listed in Section 375-1.4(a)(1)(i) through (vi). Department Staff did not establish a link between conditions at the Site and a significant threat within the meaning of the regulations, other than to argue generally that on-site impacts are sufficient to support a determination that such a threat exists, nor did Department Staff identify the nature or extent of the existing or reasonably foreseeable significant environmental impacts on-Site.

Moreover, consideration of the Section 375-1.4(b) criteria does not lead to the conclusion that the on-Site contamination is resulting in, or is reasonably foreseeable to result in, significant environmental damage within the meaning of Section 375-1.4(a)(2). A number of those criteria address instances where contamination may migrate off-Site, and those alleged impacts are discussed below.

With respect to on-Site impacts, Department Staff asserted that such impacts existed because it is an area where individuals may be present (Section 375-1.4(b)(8)). In this regard, Department Staff stated that an active business is present on-Site, that workers are present at the Site, and an active rail line runs through the property. Department Staff also offered testimony that the Site is separated from the Mohawk River only by a public right of way that leads to a river level control structure located just downstream. Id. According to Mr. Swartout, "[t]here is ready access to this right of way from Leland Avenue and no fence between this right of way and the Site." Id. Department Staff acknowledged that Universal Waste has no employees at present, but argued that "one or more employees of Utica Alloys, Inc. do enter the Site, and the possibility exists that Universal Waste or another commercial enterprise will have employees working at the Site in the future." Department Staff's Brief at 53; Tr. at 527.

Nevertheless, other than general statements that PCBs are toxic, bioaccumulable, and persist in the environment, Department Staff did not establish a link between the on-Site PCBs and any significant threat or environmental damage sufficient to overcome Petitioners' arguments to the contrary. As a result, Petitioners' assertions that PCB levels in soils and groundwater on the Site itself are not causing or will not foreseeably cause significant environmental damage are more persuasive than Department Staff's counter arguments. Accordingly, the Commissioner should determine that, with respect to on-Site conditions, no significant threat exists within the meaning of the statute and regulations.

Off-Site Contaminant Migration

Petitioners argued that contamination from the Site was having, at most, a minimal effect on any off-Site area, specifically the backwater and the Mohawk River. Petitioners asserted that there are no pathways for significant amounts of PCBs to migrate from the Site to the backwater area or the Mohawk River.

Department Staff asserted that groundwater flow from the Site is directly toward the backwater area, and the main stem of the River. As a result, according to Department Staff, the backwater area is contaminated with significant quantities of PCBs, and this contamination migrates further into the main stem of the Mohawk River. Moreover, Department Staff pointed out that the Site lies in the River's flood plain, and regular flooding occurs which transports contamination off-site.

According to Department Staff, a number of pathways exist which allow PCBs to move from the Site, including flooding; a preferential pathway through the sewer that runs beneath the Site and the bedding associated with the sewer pipe; migration through the subsurface dissolved in groundwater; and migration through the subsurface in non-aqueous phase liquid ("NAPL") form.

With respect to effects on the backwater, the parties disputed the reliability of sampling undertaken in the backwater area, as well as the conclusions to be drawn from the results of analyses of samples obtained at stations in the backwater and the River.

PCB "Fingerprinting"

Petitioners argued that the composition of the PCBs found on-Site differed from PCBs in sediment samples taken for the PSA. Petitioners' witness, Dr. Hennet, testified as to the fate and transport of PCBs at the Site, and stated that analysis of chromatograms¹¹ of the PCBs obtained through sampling showed a difference between PCB contamination on-Site and off-Site. According to Petitioners, analysis of these chromatograms at the congener level demonstrates that the type of PCB (Aroclor 1254) detected in the samples taken in the backwater and in the River is not the same as the Aroclor 1254 found on the Site.

Dr. Hennet analyzed chromatograms from Site soils, the sewer outfall channel, and samples taken upstream and downstream of the sewer outfall channel in the backwater, and concluded that the chromatograms from the upstream and downstream samples were very similar. Hennet Prefiled at 8. Dr. Hennet testified further that chromatograms from samples taken on the Site were different from chromatograms of samples taken in the sewer outfall channel, in a manner that cannot be explained by transport or decay of PCB molecules. Hennet Supplemental Rebuttal at 5. This analysis, according to Petitioners, shows that contamination from Universal Waste was not and is not an important source of PCBs in the Mohawk River, and that as a result PCB contamination attributable to the Site cannot be deemed a significant threat.

In his prefiled testimony, Dr. Hennet asserted that "[b]ecause commercial PCBs were a complex mixture of individual compounds with varying degrees of chlorination, careful study of the composition of the PCBs can yield useful information about the origin of environmental PCBs." Hennet Prefiled Testimony at 4. Dr. Hennet testified that

Id. (citation omitted). Dr. Hennet went on to testify that

Id.

The chromatograms at issue were generat