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Kent, Max - Order, December 7, 1992

Order, December 7, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of
Environmental Conservation Law Article 17
and Navigation Law Article 12 by

MAX KENT
Respondent

ORDER

DEC FILE NO. R9-3320-90-12

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint of August 26, 1992 an administrative enforcement hearing was held before Francis W. Serbent, Administrative Law Judge ("ALJ") on September 24, 1992 at the Department s Region 9 office located at 270 Michigan Avenue, Buffalo, New York concerning, as set forth above, allegations against Max Kent. The Department s Region 9 Staff appeared by Maureen Brady, Assistant Region 9 Attorney. The Respondent did not appear and was found in default.
  2. Upon review of the record and ALT Serbent s hearing report, a copy of which is attached, I find that the Respondent violated Navigation Law §173 in that he discharged petroleum. The findings show that Respondent was responsible for the leakage of petroleum products and that these products were not in a controlled state in the environment. As a matter of law, this is sufficient to establish a discharge, as defined in Navigation Law §172(8). No specific proof is required to show that these products may might drain or flow into the waters of the state or elsewhere since it has already been held that judicial notice may be taken of common knowledge that oil can seep through the ground into surface and groundwater (Merrill Transport Co. v. State, 94 A.D.2d 39 (3d Dept. 1983)).
  3. Since the record shows that Respondent is responsible for a discharge of petroleum products, I conclude that he also violated Navigation Law §l75 by failing to report the discharge, and Navigation Law §176 by failing to immediately undertake to contain and ultimately clean up and remove the discharge.
  4. I concur that no violation of charges brought pursuant to the ECL and its implementing regulations was demonstrated as there was no showing that the discharge caused or contributed to a violation of state water quality standards.
  5. As the inspection reports and other documents attached as an appendix make clear, at least fifteen site inspections were made by Staff and numerous attempts were made to have Respondent clean-up the site. Despite verbal assurances by Respondent that he would take the necessary action, he has still not done so some two years later. I conclude that these circumstances are aggravating factors affecting penalty assessment. Accordingly, even though no violation of water quality standards was demonstrated, the full amount of the penalty sought by Department Staff is warranted.

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

  1. Max Kent is therefore assessed a civil penalty in the amount of Six Thousand Dollars ($6,000) which shall be due and payable to the Department within thirty (30) days from the date of the service of this Order upon the Respondent.
  2. With thirty (30) days from the date of the service of this Order upon Respondent, Respondent is directed to remediate the spill site in accordance with the Navigation Law and under the direction of the Region 9 Staff.
  3. The alleged violations of the state water quality standards are dismissed.
  4. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 9, 270 Michigan Avenue, Buffalo, New York 14203-2999.
  5. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and persons, firms and corporations acting for or on behalf of the Respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER

______________/s/______________

DATED: December 7, 1992
Albany, New York

TO: Max Kent
P.O. Box 304
4136 Route 16
Maplehurst, New York 14743

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the -

alleged violations of the Environmental Conservation Law
Article 17, Water Pollution Control and the Navigation Law Article 12, Oil Spill
Prevention, Control and Compensation

- by -

MR. MAX KENT
P.O. BOX 304, 4163 ROUTE 16,
MAPLEHURST, CATTARAUGUS COUNTY, NY
Respondent

Case No. 90-107
R9-3320-90-l2

Report
(revised)

- by -

/s/
Francis W. Serbent
Administrative Law Judge

PROCEEDING

On August 24, 1992, a Notice of Hearing and a Complaint, Case No. 90-107 R9-3320-90-12, was mailed by certified mail, with a return receipt filed for article #283631345, to Max Kent, P.O. Box 304, 4163 Route 16, Maplehurst, Town of Hinsdale, NY 14743 ("Respondent") from the New York State Department of Environmental Conservation (the "Department"), through the Department s Region 9 Office (the "Staff" or "Department Staff"), 270 Michigan Avenue, Buffalo NY, initiating this proceeding for alleged violations of, and pursuant to the Environmental Conservation Law ("ECL") §17-0501(1), General Prohibition Against Pollution, Article 71 Title 19, Enforcement of Titles 1 Through 11 and 15 Through 19 inclusive of Article 17 and Spills of Bulk Liquids, the Navigation Law ("NL") Article 12 Oil Spill Prevention, Control and Compensation; and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") §701.19 (Classes and Standards for Fresh Surface Waters) and Part 622 (Uniform Enforcement Hearing Procedures).

Complaint (ATTACHMENT A to this Report)

The Department Staff alleges that the Respondent leaked approximately thirty gallons of various petroleum products during 1990 in violation of:

ECL §17-0501(1), that states, in part, "General prohibition against pollution. 1. It shall be unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or inorganic matter that shall cause or contribute to a condition in contravention of the standards adopted by the department pursuant to section 17-0301.";

6 NYCRR §701.19. (Note that the regulation was revised on August 31, 1991 but in 1990, the section was titled "Classes and Standards for Fresh Surface Waters".) The Complaint does not identify any fresh surface water, class or standard that the Staff is or may be considering; and

Navigation Law §173, which indicates "Discharge of petroleum; prohibition. The discharge of petroleum is prohibited. This section shall not apply to discharges of petroleum pursuant to and in compliance with the conditions of a federal or state permit.";

The Department Staff also alleges that the Respondent never notified the Department of the oil spill in violation of:

Navigation Law §175, which states in part, "Notification by persons responsible for discharge. Any person responsible for causing a discharge shall immediately notify the department pursuant to rules and regulations established by the department, ... Failure to so notify shall make persons liable to the penalty provisions of section 192 of this article. ..."

The Department Staff finally alleges that the Respondent did not respond promptly to remediate the spill or contain the alleged discharge in violation of:

Navigation Law §176, which states, in part, "Removal of prohibited discharges. 1. Any person discharging petroleum in a manner prohibited by section one hundred seventy-three if this article shall immediately undertake to contain such discharge. ... 2.(a) ... Implementation of cleanup and removal procedures after each discharge shall be conducted in accordance with environmental priorities and procedures established by the department. ...";

The Department Staff requests the following relief:

a finding that the Respondent violated ECL Article 17 and the Navigation Law Article 12,

a penalty of six thousand ($6,000.00) dollars pursuant to ECL §71-1929,

the proper disposal of certain materials (i.e. four drums and a pile of soil) according to prescribed procedures.

NOTE: The Complaint makes no allegations regarding any drums and/or any contaminated soil.

Answer

No answer is on file.

Default

The Hearing was noticed for September 29, 1992 at the Department Staff s address as noted above, and the Respondent did not appear. A Notice of Hearing and Complaint was mailed on August 24, 1992 by certified mail to the Respondent at the address Of the alleged spill. A returned receipt for item #P283 631 345, apparently signed by Dean Kent on August 29, 1992, was filed. A default was opened pursuant to 6 NYCRR §622.12(b) by the hearing officer, Administrative Law Judge ("ALJ") Francis W. Serbent. The Staff advises that the Respondent telephoned the regional attorney s office on September 17, 1992 to discuss the Notice of Hearing and Complaint. The Staff Attorney arranged a meeting but the Respondent did not contact the Staff again.

The Staff s motion on September 29, 1992, to present its evidence by affidavit was granted and the affidavit of Robert N. Leary, PE, Environmental Engineer-II was presented. The affidavit included six (6) appendices (ATTACHMENT B to this Report) that included inspection notes, copies of photographs, and correspondence dated after the allegation of leaks onto the Respondent s facility in 1990.

The ALJ telephoned the Staff s Attorney on September 30, 1992 regarding service of the Notice of Hearing and the Complaint. The ALT inquired of the availability for the record of the affidavit of mailing of the Notice of Hearing and the Complaint. The affidavit of mailing was filed at this office on October 6, 1992.

On October 26, 1992, the ALJ requested the original snapshots to replace the copies appended to the affidavit. The originals were received on October 26, 1992 and the record was thereupon closed.

The Department Staff was represented by Marc S. Gerstman, General Counsel and Deputy Commissioner (Maureen Brady Esq., Assistant Region 9 Attorney, of Counsel).

Official Notice

NL §12-172.8: " 'Discharge means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum into the waters of the state or onto lands from which it might flow or drain into said waters, ... when damage may result to the lands, waters or natural resources within the jurisdiction of the state;"

FINDINGS OF FACT

The Complaint paragraph 2 alleges: "Approximately 30 gallons of various petroleum products leaked onto Respondent s facility in 1990..."

1. The Department Staff s prima facie case is the affidavit of Robert N. Leary, PE, Environmental Engineer II, ("Affidavit") whose general duties include management of the spill response program and the petroleum bulk storage programs.

2. Engineer Leary visited at 4163 Route 16, Maplehurst, Town of Hinsdale, Cattaraugus County ("Site") twice in 1990. No one was there to talk to during the first visit on June 21, 1990 and no one was on the site during the second visit on August 2, 1990.

3. Previously, on April 24, 1990, John Otto of the Department s Staff, Division of Water, filed a Spill Response Form for spill number 9001030. The date of the spill is sometime in April and is not completely legible on the form.

4. The Spill Response Form indicates:

that an unknown quantity of gasoline, waste oil, transmission fluid and motor oil spilled at an unknown rate onto the land (from among the other choices, i.e. in sewer, groundwater, surface water or air) at the Site;

housekeeping was the spill cause;

gas station as the spill source and

in the remarks section on the form, it is noted that the Site is cluttered with old transmissions, waste oil drums, oil soaked cardboard and cars leaking transmission fluid saturating the area.

5. Notes of a June 21, 1990 site visit indicate considerable spillage of various (but unidentified) petroleum products in the area of junk parts and full oil barrels.

6. This record does not identify any waters into which the Respondent's petroleum flowed or drained or could have received Respondent s petroleum.

7. This record does not identify any classified surface waters into which the Respondent s petroleum flowed or drained.

8. This record does not identify any water quality standards that were contravened by the Respondent.

9. This record does not identify any damage that occurred or may have resulted to the lands; water or natural resources within the jurisdiction of the state.

10. This record does not demonstrate that any petroleum products could have or did move over, under or of f the surface of the site.

The Complaint paragraph 3 alleges "Respondent never notified the Department of the oil spill ..."

11. There is no evidence of any response by or communication from the Respondent in 1990 except the returned receipt for the Department Staff s certified letter of August 2, 1990.

The Complaint paragraph 4 alleges: "Respondent did not respond promptly to remediate the spill or contain the discharge ..."

12. Engineer Leary sent a certified letter dated August 2, 1990 to the Respondent at the alleged spill site address, with a return receipt for item #P892 116 952 filed with an apparent signature of Paulette J. Kent. The letter includes a copy of correspondence by Staff to the Respondent dated June 22, 1990. The letters are regarding Site remediation and identifies subsequent activities for the Respondent to do, including sampling and testing of contaminated materials, interim storage on site, and final landfill disposal procedures.

13. The Staff s August 2, 1990 letter was delivered on August 13, 1990 according to the return receipt. The Spill Continuation Sheet contained in Appendix 2 of the Affidavit has entries dated August 20, 1990 and October 10, 1990 with the comment "no work done" for each date.

The relief sought in the Complaint includes, among other things, a penalty of six thousand ($6,000) dollars, the removal of four (4) full drums and a pile of contaminated soil to an approved disposal site.

14. The Spill Continuation Sheets contained in Appendix 2 of the Affidavit are stylized hand written notes that are not entirely legible but do indicate that during 1991:

Staff visited the Site on April 17, May 23, June 20, July 30, and October 1, 1991;

the Site was unattended during the Staff s visits in 1991;

Site cleanup started prior to the May 23rd visit;

the Respondent was contacted on June 20, 1991 and cleanup was discussed. A letter, sent by regular mail, dated June 24 to the Respondent followed;

and some cleanup was noted during the July visit but not at the October visit.

15. The Spill Continuation Sheets, with the stylized hand written notes that are not entirely readable, do indicate that in 1992:

the Staff visited the Site on January 21 and 28, May 5, and August 27, 1992 and, among the things that are legible, it was noted that cleanup has not been completed.

16. The Respondent provided Staff with a receipt dated January 22 or 27, 1992 hand written to indicate that Cubic Storage, Olean, NY received three (3) fifty-five (55) gallon drums of used oil & sludge from the Respondent.

CONCLUSIONS

1. There is no evidence or demonstration of environmental damage and would be a consideration for a less severe remedy.

The Complaint paragraph 2 alleges: "Approximately 30 gallons of various petroleum products leaked onto Respondent s facility in 1990 ..."

2. The oily appearance of the grade surface on Site and the presence of full drums on Site have not been shown on this record to cause or contribute to a condition in contravention of any specified surface water quality standard. There is no violation as alleged pursuant to ECL §17-0501(1) and 6 NYCRR §701.19. A penalty of six thousand ($6,000.00) dollars pursuant to ECL §71-1929 can not be assessed as requested.

3. To conclude that there is a violation of the Navigation Law §173, a discharge of petroleum would or might, among other things, flow or drain into water. There was no such flow or drainage or movement of petroleum products of f site or off the surface of the site.

4. No such waters that received or may have received Respondent s petroleum have been identified in this record. It cannot be concluded that any water did or may contain petroleum from the Respondent s Site in violation of the Navigation Law §173 as alleged.

The Complaint paragraph 3 alleges "Respondent never notified the Department of the oil spill ..."

5. It cannot be concluded that there was a failure to notify the Department of an oil spill in violation of the Navigation Law §175 as alleged. Immediate notification of a spill is mandated after a discharge. However, no discharge pursuant to the ECL or NL has been established.

6. However, in contemplation of a discharge pursuant to the ECL and/or the NL as alleged, there was no notification by the Respondent. The NL requires that any person responsible for causing a discharge shall immediately notify the Department. The Respondent would be in violation of NL §175.

7. The relief would be determined after considering that: the Complaint alleges the spill occurred at some unspecified date or dates only in, and not prior to, 1990;

there is no record of the Respondent being on Site in 1990;

the quantity of either gasoline, waste oil, motor oil and/or transmission fluid spilled is unknown;

the leak rate or rates of either the gasoline, waste oil, motor oil and transmission fluid are unknown;

although a Spill Response Form was filed on April 24, 1990, the date (or dates) of the spill (or spills) is indeterminate and when notification of the spill (or spills) should have occurred is, consequently, indeterminate;

gasoline, waste oil, transmission fluid and motor oil were all identified by visual observations as a spill at a gas station concluded to be unattended and out of business. When immediate notification, of each or collectively, pursuant to NL §175 should have occurred is indeterminate;

the spill was caused by housekeeping from an area cluttered with old transmissions, full waste oil drums, oil soaked cardboard and cars leaking transmission fluid.

This lack of an accurate date or dates and lack of specific data, (e.g. product spilled, quantities, rates, sources, etc.) for each spill in this record does not provide a reasonable basis for determining when in 1990 an immediate notice pursuant to NL §175 would have been required. The relief, if any, would be tempered accordingly.

The Complaint paragraph 4 alleges: "Respondent did not respond promptly to remediate the spill or contain the discharge ..."

8. The Navigation Law §176 requires, among other things, immediate containment and remediation in accordance with priorities and procedures established by the Department. Absent any evidence of either a discharge or damage, it cannot be concluded that there is a violation of the Navigation Law §176.

9. Should there be a determination that there was a discharge pursuant to the ECL and/or NL as alleged, this record supports a conclusion that neither immediate containment nor cleanup and/or removal in accordance with procedures established by the Department Staff was provided by the Respondent. The Respondent would be in violation of NL §176.

10. The relief would be determined after considering that:

the Complaint alleges the spill occurred at some unspecified date or dates only in 1990;

there is no record of the Respondent being on Site in 1990;

although a Spill Response Form was filed on April 24, 1990, the date (or dates) of the spill (or spills) is indeterminate and, consequently, what constitutes a prompt response to contain the spill (or spills) pursuant to NL §176 cannot be ascertained;

the quantity of either gasoline, waste oil, motor oil and/or transmission fluid spilled is unknown;

the leak rate or rates of either gasoline, waste oil, motor oil and/or transmission fluid are unknown;

gasoline, waste oil, transmission fluid and motor oil were identified by visual observations at a gas station concluded to be unattended and out of business;

containment, cleanup and removal pursuant to NL §176 from each source and for each spill is not identified;

the spill (or spills) was caused by housekeeping from an area cluttered with old transmissions, full waste oil drums, cars leaking transmission fluid and oil soaked cardboard;

the requested relief is for an order to remove four (4) full drums and a pile of debris. The four full drums and the pile of debris cannot be reasonably concluded to be a consequence of a spill or discharge.

The lack of accurate data, a specific date (or dates) and lack of a specific source (or sources) of a spill in this record does not provide a reasonable basis for determining when in i990 immediate containment or remediation pursuant to NL §176 would have been required. The relief, if any, would be tempered accordingly.

The relief sought in the Complaint includes, among other things, a penalty of six thousand ($6,000) dollars, the removal of four (4) full drums and a pile of contaminated soil to an approved disposal site.

11. As noted above, there is no evidence of a violation as alleged pursuant to ECL § 17-0501(1) and 6 NYCRR §701.19. The penalty that Staff is seeking pursuant to ECL §71-1929 can not be assessed as requested.

12. As noted above, a discharge as defined by the NL did not occur as there is no evidence that petroleum might flow or drain into water. Staff s request for relief by finding the Respondent in violation of NL Article 12 can not be provided.

13. The Complaint makes no mention or allegations regarding any drums and/or contaminated soil. However, the relief sought by Staff does seek to cleanup the Site by the removal of four full drums and a pile of soil. If the relief (cleanup) sought in the Complaint is indeed required for an alleged 30 gallon spill in 1990, then cleanup certainly should have been completed by August 1992. It has to be concluded that there was ample and reasonable time to perform the work and dispose of the four drums and a pile of soil.

RECOMMENDATIONS

1. Having concluded that there are no violations as alleged, it has to be recommended that the Complaint be dismissed.

2. It is recommended that the Department Staff pursue voluntary Site cleanup, or, if necessary otherwise, investigate compliance and/or action within the solid waste programs.

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