National Tire Compaction - Order, June 18, 1993

Order, June 18, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Environmental Conservation Law ("ECL") Article 27 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 360

by

DEC File No. R6-1172-91-11

NATIONAL TIRE COMPACTION SERVICE, INC.
Respondents

ORDER

WHEREAS:

1. Pursuant to a Notice of Hearing and Complaint dated July 1, 1992, and amended August 4, 1992, an administrative enforcement hearing was conducted on September 1, 2 and 3, 1992 before Administrative Law Judge ("ALJ") Robert P. O'Connor in the Department of Environmental Conservation Region 6 Office, 317 Washington Street, Watertown, New York.
2. The Department appeared at the hearing by Judy Drabicki, Esq., Regional Attorney in the Department's Region 6 Office in Watertown, New York. The Respondent was represented by Jerry Breen, pro se, General Manager, National Tire Compaction Service, Inc., 103 Charles Street, Boonville, New York 13309.
3. Upon review of the record of this proceeding and ALJ O'Connor's Hearing Report (copy attached), I hereby adopt the ALJ's Findings of Fact, Conclusions and Recommendations as my own, except as noted below.
4. Respondent has developed a process for recycling tires which will provide a preferable alternative to disposal. There are many potential benefits associated with this process. However, Respondent's operation also has the potential for adverse environmental impacts if not operated properly. Therefore, compliance with the Department's regulations is essential. These regulations set standards and require facility permitting.

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

1. Respondent violated ECL Article 27 and 6 NYCRR Part 360 in its operation of a waste tire transfer station/storage facility off Route 12 in the Town of Leyden, Lewis County, New York. These violations relate to the storage of more waste tires than authorized, the storage of tires still mounted on rims, and the unauthorized burial of tire bales on the site.
2. Respondents are assessed civil penalties in the amount of One Hundred Thousand Dollars ($100,000), Five Thousand Dollars ($5,000) of which shall be due and payable thirty (30) days after service of this Order on Respondents. The remainder of the penalty ($95,000) shall be suspended upon condition that Respondent shall within 60 days remove all tires from the Route 12 site, either in the form of completed reef units shipped to the State of New Jersey or in unprocessed form removed to an approved disposal facility. No additional tires may be accepted at the facility during this period. Any failure to comply with this removal order shall cause the suspended Ninety-five Thousand Dollar ($95,000) portion of the penalty to be due and payable at the end of the 60 day period.
3. This Order is issued without prejudice for Respondent to apply for the necessary permits to re-commence operations at the site. The Department shall not process such applications until it has made satisfactory progress towards compliance with Paragraph II of this Order, as determined by the Department.
4. All communications between Respondent and the Department concerning this Order shall be made to the Department's Region 6 Director, 317 Washington Street, Watertown, New York 13601.
5. The provisions, terms and conditions of the Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

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

   Dated: Albany, New York
   June 18, 1993

   To: Jerry Breen
   General Manager
   National Tire Compaction
   Service, Inc.
   103 Charles Street
   Boonville, New York 13309

   Jack Breen
   President
   National Tire Compaction
   Service, Inc.
   103 Charles Street
   Boonville, New York 13309

   Thomas E. Brown
   Regional Director
   NYSDEC - Region 6
   317 Washington Street
   Watertown, New York 13601

   Judy Drabicki
   Regional Attorney
   NYSDEC - Region 6
   317 Washington Street
   Watertown, New York 13601

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

   In the Matter of Alleged Violations of Environmental Conservation Law ("ECL") Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360 (Solid Waste Management Facilities)

   by

   NATIONAL TIRE COMPACTION SERVICE, INC.
   103 Charles Street
   Boonville
   New York 13309

   DEC File Number R6-1172-91-11

   HEARING REPORT

   by
   /s/
   Robert P. O'Connor
   Administrative Law Judge

   PROCEEDINGS

   The New York State Department of Environmental Conservation ("Department" or "DEC"), through its Region 6 Office, 317 Washington Street, Watertown, New York 13601, served a Notice of Hearing and Complaint, dated July 1, 1992, and amended August 4, 1992, upon National Tire Compaction Service, Inc. ("NTCS" or "Respondent"), at the mailing address: 101 Charles Street, Boonville, New York 13309. Service of the initial Notice and Complaint was acknowledged on July 6, 1992, and of the amended Complaint on August 5, 1992 on the U.S. Postal Service Return Receipts which accompanied the Department Staff mailings to the Respondent. The Return Receipts were received back in the Department's Region 6 Legal Affairs Office in Watertown, New York on July 7, 1992 and August 7, 1992, respectively. Respondent later clarified that its proper address is 103 Charles Street in Boonville, New York.

   The Notice of Hearing directed Respondents to appear for an administrative enforcement hearing in the Department's Region 6 Office at the above address on August 11, 1992 at 9:30 A.M. to answer charges of alleged violations of Environmental Conservation Law ("ECL") Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360 (Solid Waste Management Facilities). The Department Staff alleged the violations were caused by Respondent's actions in 1991 and 1992 at its waste tire transfer station/storage facility on the east side of N.Y.S. Route 12, in the Town of Leyden, Lewis County (the "site"), a location referred to by the Respondent as Route 12 North, Boonville, New York.

   Subject to adjournments duly taken, the hearing was commenced before Administrative Law Judge ("ALJ") Robert P. O'Connor in the Department's Region 6 Office on September 1, 1992 and continued in the same location on September 2 and 3, 1992.

   The Department Staff was represented at the hearing by Judy Drabicki, Esq., Region 6 Attorney. Appearing as witnesses for the Department Staff were John P. Kenna, Regional Solid Waste Engineer, Peter R. Taylor, Environmental Engineer II, and Lawrence Ambeau, Solid Waste Management Specialist, all employed in the Department's Region 6 Division of Solid Waste.

   The Respondent was represented by Jerry Breen, pro se, General Manager, National Tire Compaction Service, Inc., 101 Charles Street, Boonville, New York. The Respondent called as witnesses John P. Kenna, DEC Region 6 Regional Solid Waste Engineer, Lawrence Ambeau, Solid Waste Management Specialist in the Region 6 Division of Solid Waste, and C. Randy Vaas, Regional Permit Administrator in the Region 6 Division of Regulatory Affairs and Jack J. Breen, President, National Tire Compaction Service, Inc.

   The stenographic transcript of the hearing was received on October 5, 1992. The hearing record was closed on November 23, 1992 following receipt of post-hearing statements from the Department Staff and the Respondent.

   The Charges and Relief Sought

   The Complaint served upon the Respondent by the Department's Region 6 Staff alleges Respondents violated various sections of ECL Article 27 and 6 NYCRR Parts 360, the Solid Waste Management Law and implementing regulations, respectively, by storing waste tires in excess of the quantity authorized in its solid waste management facility permit and in a "Beneficial Use Demonstration" ("BUD") permit issued to it, by storing tires still mounted on rims, by burying tires at the facility and by storing more than one thousand (1,000) on the site without authorization.

   In the original Complaint, the Department Staff requested a civil penalty be assessed in the amount of $210,500. In its closing statement, the Staff sought an amended civil penalty in the total amount of $100,000, of which $5,000 would be payable, and the remainder suspended upon condition the Respondent complies with the terms of the Commissioner's Order in this matter and whatever permits are issued to it for continued operations.

   The Answer

   In an Answer served on the Department Staff on July 28, 1992, Respondent generally denied the Staff's allegations pertaining to violations of the ECL and 6 NYCRR.

   Additionally, Respondent submitted a multi-point "affirmative answer" which, among other things, generally asserted that the Department Staff is the cause of all Respondent's problems through lack of and mis-communications and a failure to be responsive to Respondent's unique operating requirements and characteristics. Respondent contended that it never "stored" tires on the site, and that the tires thereon are raw materials in various stages of a manufacturing process, or tires which are being recycled. Respondent also maintained the Department Staff knew that a barge load of completed reef units for the State of New Jersey would contain approximately 80,000 tires, or approximately 2,000 reef units each of 2 bales, with each bale consisting of approximately 20 tires, yet the restrictions in the DEC authorizations made it impossible to comply and at the same time fulfill their manufacturing obligations to the State of New Jersey. These issues are addressed in the following Findings of Fact section of this Hearing Report.

   However, in the same Answer, Respondent admitted it was undertaking many of the items proposed by the Department Staff in a draft Consent Order which would have resolved many of the issues in conflict between Respondent and Department Staff.

   Respondent seeks the Commissioner to find the Department Staff has been remiss in its duties and has prevented a valid business from operating within the State. It also seeks a determination that the Department Staff issued multiple permits which were contradictory to its regulations which resulted in the "shut down" of Respondent's recycling business. Further, it seeks dismissal of the instant charges, cessation of the DEC selective enforcement and legal actions against it and allowance to operate as a recyclables handling and recovery facility, or as a transfer station and storage facility, with the BUD renewed. Lastly, Respondent seeks DEC approval to change its name to "Adirondack Tire Recycling." In the last sentence of its Answer, Respondent noted, "NTCS INC. at all times retains the right to proceed against the Department for monetary damages suffered by NTCS INC. as a result of its actions."

   In an August 11, 1992 letter to both the Department Staff and Respondent, I advised Respondent that the above noted various avenues of relief which it sought were outside the scope of administrative enforcement proceedings conducted by the Department. Particularly, the Department had no jurisdiction to regulate the name Respondent chose to call its business, and the issue of selective enforcement was to be addressed in the courts, not in a DEC hearing.

   Also in its Answer, Respondent sought to have either the Department Staff or the ALJ subpoena a "partial list" of some eighteen witnesses, from elected legislators to various members of the Department Staff, in support of its case. In my August 11, 1992 letter, I denied Respondent's request for subpoenas as being premature until discovery was completed and the Department Staff's case had been presented. Further, I instructed Respondent to provide me with a summary of the nature of the testimony which it expected to elicit from each witness prior to my issuing any subpoenas. Respondent never provided this information and did not pursue the issuance of subpoenas any further, although without the benefit of subpoenas, it did call several Department Staff witnesses as part of its case, as noted above.

   FINDINGS OF FACT

   Background

   1. Following preliminary discussions with the Department Staff at a meeting on May 8, 1991, Respondent submitted to the Department's Region 6 Staff on or about June 3, 1991 a cover letter and an unsigned and undated application for its "Route 12 Transfer Station." The "preliminary draft application" noted the proposed "approved design capacity" for the facility was 3,400 tires on a two acre area of the 22 acre site. This draft application lacked much of the information required by the Department Staff for compliance with 6 NYCRR Part 360. The narrative accompanying the application package noted, "All inflow and outflow will be on a scheduled basis."
   2. The application narrative related Respondent's intended use of a baler device to "densify" waste tires into a "recycled tire building block." The baler would hydraulically compress up to 20 to 22 auto and light truck tires into a tight bundle or bale, which would then be bound together by three (3) to four (4) cinch wires or bands. This densification process was capable of reducing total tire volume by approximately 82 percent. Respondent proposed that the tire bales could be used in "Recycled Tire Wall" ("RTW") construction projects for agricultural and insulated building applications or in the construction of offshore reef units for the State of New Jersey.
   3. During the May 8, 1991 meeting, representatives of the Respondent impressed on the Department Staff their desire to get the tire baling operation up and operating and to start accepting waste tires as soon as possible. Secondly, Respondent either could not or did not want to go to the expense of hiring a professional engineer to put together a permit application, to post a financial surety, or to take the time to meet the regulatory requirements for fire protection ponds and contingency plans. Staff explained that under those circumstances, Respondent might want to start out with a small operation, e.g. - with a tire transfer station, which Staff felt could be permitted fairly quickly and easily, without Respondent incurring a large initial application expense. Such an operation would allow Respondent to generate some operating capital. Then, if Respondent eventually wanted to enlarge the operation, it could come back to the Department with a full and complete application for whatever expanded project was contemplated.
   4. On June 21, 1991, Respondent supplemented the preliminary application package with signed and dated forms and clarifying information. The design capacity was noted to be 3,400 tires per day, and additional information was provided regarding the contingency plan for the facility.

   The Approvals -- Solid Waste Management Facility Permit and Beneficial Use Determination

   5. Based on the supplemental information provided by Respondent and on further discussions with one of Respondent's principals at the time, the Department Staff issued Respondent a combined new permit to construct and to operate a solid waste management facility, specifically, a waste tire transfer station/storage facility on approximately two acres of a 22 acre site on the east side of N.Y.S. Route 12 in the Town of Leyden, Lewis County, a/k/a Route 12 North, Boonville, New York. On July 11, 1991, Respondent reviewed a draft of the terms and conditions of the permit, and suggested several modifications which the Staff accepted before the final permit was issued. Permit No. 6-2334-00007/00001-0 for Respondent's facility was issued in final form on July 18, 1991 and had an expiration date of July 31, 1992.
   6. Based on the 3,400 tire per day capacity of Respondent's tire baler, the Department Staff conditioned the permit allowing Respondent to transfer through the facility up to 3,400 tires per day as an annual average based on 312 days per year. This would allow Respondent to move up to approximately 10.6 million tires per year through the facility.
   7. Due to the stringent regulatory requirements in 6 NYCRR 360-13 for facilities storing in excess of 1,000 tires, and the Respondent's stated desire to not have to meet all such requirements, the Department Staff imposed a condition in the permit which prohibited any more than a combined total of 1,000 baled and unbaled waste tires from being stored on the ground at the facility at any time. Baled tires were also permitted to be stored on site in no more than two (2) flatbed type trailers with waste transporter permits pursuant to 6 NYCRR Part 364. Staff's intent was to ensure that all waste tires were quickly processed by Respondent and either made into tire bale reef units or shipped off site to approved disposal facilities on essentially a daily basis, such that tires did not accumulate to over 1,000 on the ground at the site at any given time.
   8. Good used tires and good casings were permitted to be stored on site in no more than one (1) van type trailer with a waste transporter permit pursuant to 6 NYCRR Part 364. Additionally, no more than one (1) truck load of scraped (sic - scrapped ?) metal rims, approximately 3,000, were allowed to accumulate at the facility. The permit allowed the rims to be stored on the ground until a full truck load was obtained.
   9. The Staff, in the permit, reserved the right to require a form of surety or financial responsibility, in an amount to be determined, at any future time.
   10. At about the same time the permit for the transfer station/storage facility was issued, on July 15, 1991, the Department Staff issued a Beneficial Use Determination ("BUD"), No. 104-6-33, on the Respondent's request to utilize the tire bales to construct artificial reef components for the Bureau of Marine Fisheries, Division of Fish, Game and Wildlife, New Jersey Department of Environmental Protection. The Department Staff's letter to Respondent stated, "we are granting a BUD for tire bales in artificial reefs in New Jersey. . .".
   11. A BUD is a determination by the Department Staff that a particular waste or waste stream or product made from the waste stream is, in fact, a beneficial use. The issuance of a BUD means that, for regulatory purposes, the finished product which is made from waste materials is not a solid waste. A BUD is not a permit, per se, and does not refer to a site or a facility or a location.
   12. In this instance, the BUD referred specifically to the tire bales in artificial reef components which were to be constructed on the site of Respondent's waste tire transfer station/storage facility in accordance with the State of New Jersey's specifications. Thus, the waste tires coming into Respondent's facility were regulated as a solid waste. Once those tires had been formed into bales and then made into finished reef units, they were no longer regulated as a solid waste. One consequence of the issuance of the BUD was that while waste tires arriving at or leaving Respondent's site had to be transported in accordance with a 6 NYCRR Part 364 Waste Transporter Permit, the completed reef units were not regulated as a solid waste and did not require a Part 364 permit to be transported to New Jersey.
   13. The reef units consist of two (2) tire bales placed side-by-side, linked by the ends of a severed tire placed in the empty center core area of each bale. The core areas of each bale are then poured full of concrete, such that the protruding loop of the severed tire forms a lifting eye.
   14. Respondent, in its early contacts with Department Staff, had indicated a desire to make tire bale reef units on a trial basis to see if they were acceptable to the State of New Jersey. Therefore, the Staff issued the BUD with the intent of allowing Respondent to make the reef units at least initially on a trial basis. As part of the BUD, the Department Staff required that no more than 200 tire bale reef units could be stored at Respondents facility. Thus, approximately 6,000 to 8,000 tires, i.e. - approximately 15 to 20 tires per bale x two bales per reef unit x 200 reef units = 6,000 to 8,000 tires, were allowed to be stored on site in the form of completed reef units. The BUD allowed the tire bale reef units to be stored on site for up to 30 days. Storage of the waste tires and waste tire bales not yet made into reef units was to be in accordance with 6 NYCRR Part 360-13 and the above noted transfer station/storage facility permit. Staff reiterated the limit of 1,000 baled and unbaled waste tires which could be stored on the ground at any time. The Staff advised that the BUD approval could be revoked at any time, should conditions warrant.
   15. Following an inspection of the site on August 22, 1991, Department Staff advised Respondent in writing that, "it appears the number of waste tires stored on the ground exceeds the amount approved in both the BUD and transfer station permit." Additionally, Staff noted, "It appears tires are being received at the site but no tires are leaving the site."
   16. On August 27, 1991, Respondent sent the Department Staff a letter requesting correction of what it deemed to be a typographical error in the BUD letter, such that the 200 tire bale reef units allowed by the BUD to be stored on site should be increased to 2,000 in number, since 2,000 units would comprise a load to be shipped to New Jersey by barge, Respondent's choice of transportation mode. The Department Staff claims not to have ever received this letter. Respondent raised this issue with the Department Staff on several subsequent occasions. The Staff did not react favorably to the request.
   17. On October 16, 1991, Department Staff received a quarterly report from Respondent indicating that 25,763 tires had been received at the site, but none had left the site. The receipt of this information caused the Department Staff to conduct an inspection of the site on October 18, 1991. The Staff observed during the inspection the Respondent had on the ground at the site in excess of 19,000 baled and unbaled tires. Some of the tires, between 1,000 and 2,000 in number, were still mounted on rims. On this and subsequent occasions, Respondent claimed that many of the tires, particularly those which had been baled, were being staged in its manufacturing process for producing tire bale reef units, or were in the process of being recycled. In this regard, Respondent stated at the hearing that its intention was to have an ongoing operation for making tire bale reef units at its facility, such that it would have up to a couple of thousand reef units being manufactured on a regular basis. This type of operation would be much larger than what the Department Staff considered as a trial or start-up operation.
   18. During the inspection, Department Staff observed a tire bale buried in the ground. Representatives of Respondent told Staff that two tire bales had been buried (one vertically, one horizontally) to determine how the elements would affect them and how they would move in the ground with earthen fill placed around them. The tire bale which Staff had observed was dug out of the ground by Respondent, but the other bale could not be found in the course of the inspection. No adverse environmental effects were observed to accompany the burying of the two tire bales.
   19. On October 21, 1991, the Department Staff sent a Certified Mail letter to Respondent directing NTCS to immediately cease accepting any additional waste tires at the facility. The Staff gave Respondent a deadline of November 18, 1991 to remove all waste tires and waste tire bales from the site to an approved disposal facility. The Staff's letter advised Respondent that BUD No. 104-6-33 was revoked, effective immediately. The Staff's concern was with the number of tires on the site, and the lack of any assurance that they would ever be removed from the site, given the original limitations which had been placed in the transfer station/ storage facility permit and the BUD to keep the number of waste tires below the regulatory threshold of 1,000 pursuant to 6 NYCRR 360-13.
   20. During the months of January - February 1992, the Department Staff attempted to settle the charges against Respondent by means of a Consent Order. Staff noted Respondent should complete a full application package for a waste tire storage facility for the 80,000 to 300,000 tires they wanted to stockpile on the site. The Department Staff would require that such a permit be accompanied by a financial surety. Agreement on the terms of the Consent Order could not be reached.
   21. On May 8, 1992, Department Staff inspected Respondent's facility and found an estimated 26,440 tires on the site. The tires were in the ground in loose piles, shredded or cut piles, bales and reef units in various groupings, some already poured with concrete and others apparently waiting to be poured. Approximately 212 reef units, in various states of completion, were identified on the site. There were still between 1,000 and 2,000 tires mounted on rims, in essentially the same place as they appeared on October 18, 1991.
   22. On August 27, 1992, a Department Staff representative made a quick observation of the north portion of the Respondent's site and found it to look very similar to its appearance during the May 8, 1992 inspection, except the grass had grown much higher around the tires on the site.
   23. At the hearing, Respondent stated that approximately 11,000 tires have actually been removed from the site, but it considers the Department Staff's order to remove all the tires from the site as being "ridiculous." Respondent claimed to have been negotiating with Department Staff since October 1991 to allow for a more beneficial use of tires on the site, including the tires formed into bales, than merely landfilling them as a removal/disposal practice to comply with the Staff's order.

   CONCLUSIONS

   1. From the onset of this matter, it is clear that the Department Staff did not want waste tires to accumulate at the site. The terms and conditions of the solid waste management facility permit and the BUD were crafted in such a way that Respondent was required to move the tires through the facility and not store or stockpile them. The Department Staff objective in issuing the permit and the BUD was to have the Respondent start with a small manageable operation. In developing the permit and BUD conditions, the Staff specifically limited Respondent to storing less than 1,000 baled and unbaled waste tires on the ground in order that Respondent would not be subject to the more stringent regulatory criteria for facilities which stored more than 1,000 waste tires. Then, depending on the success of the business and Respondent's ability to properly manage the facility, Respondent's operations could be allowed to grow larger through modification of the existing permit or through new permits under which full compliance with the 6 NYCRR 360-13 regulations for waste tire storage facilities would be required.
   2. Respondent's plans were that once it had demonstrated a satisfactory reef unit product to the State of New Jersey, it would commence a continuous reef unit making operation which would require many times the quantity of tires allowed in its transfer station permit and BUD approvals. Shortly after receiving the permit and BUD from the Department Staff in July 1991, the quantity of waste tires on Respondent's site already far exceeded the limits imposed by the permit and BUD.
   3. By storing in excess of 19,000 baled and unbaled tires on the ground on October 18, 1991 and approximately 26,000 baled and unbaled tires on the ground on May 8, 1992, Respondent violated the terms and conditions of both the transfer station/storage facility permit and the BUD.
   4. By storing waste tires in excess of the number authorized, Respondent violated 6 NYCRR 360-13.3(f)(5).
   5. By storing 212 tire bale reef units on the site on May 8, 1992, Respondent violated the conditions of its BUD that no more than 200 reef units could be stored at the facility.
   6. 6 NYCRR 360-13.4(b)(1) requires that tires at a tire storage facility must be unmounted. By storing between 1,000 and 2,000 tires still mounted on rims between the dates of October 18, 1991 and May 8, 1992, Respondent violated this section of regulations.
   7. 6 NYCRR 360-1.7(a)(1)(ii) requires that no person shall operate a solid waste management facility except in accordance with a valid permit. Respondent's permit did not authorize the burial of tires or tire bales. By burying two tire bales to observe how they would move in relation to the elements, Respondent was undertaking an experiment which might have proved to have some merit. However, Respondent never consulted with Department Staff regarding this experiment. Although there were no adverse environmental effects noted by Staff, Respondent violated the terms of its permit by burying the tire bales.
   8. The fourth charge, pled in the alternative by the Department Staff, was that if there were two facilities, the "360 facility," i.e. - the waste tire transfer station/storage facility, and the "BUD facility," i.e. - the tire bale reef making operation, Respondent violated 6 NYCRR 360-13.1(b) by storing more than 1,000 tires on site. In fact, there are not two facilities. Respondent was permitted for one facility, the transfer station/storage facility. The BUD only authorized an ancillary operation to be conducted in conjunction with the transfer station operation. If there were two facilities, the Staff's fourth charge would be appropriate. However, since there is only one facility in question here, the Department Staff' alternative pleading is unnecessary in this proceeding.

   RECOMMENDATIONS

   1. Respondent violated 6 NYCRR 360-13.3(f)(5), 13.4(b)(1) and 1.7(a)(1)(ii), respectively, by storing more tires at its facility than were authorized, by storing tires which were still mounted on rims, and by burying two tire bales at its facility. ECL 71-2703 provides that any person who violates any rule or regulation promulgated pursuant to Titles 3 and 7 of ECL shall be liable for a civil penalty not to exceed $2,500 for each such violation and an additional penalty of not more than $1,000 for each day during which such violation continues. The violations committed by Respondent for the duration of time between the inspections of October 18, 1991 and May 8, 1992 could potentially subject Respondent to a penalty of approximately $200,000.
   2. In this instance, I concur with the recommendations of the Department Staff (see The Charges and Relief Sought above) and recommend Respondent be assessed a civil penalty in the total amount of $100,000, $5,000 of which shall be payable, for the violations described in the above Conclusions section of this Report. The remainder of the penalty ($95,000) should be suspended upon condition that Respondent shall either process the tires existing on the site into completed reef units for the State of New Jersey or remove the tires to an approved disposal facility. All tires, including those constituting reef units, currently on the site must be processed and removed within 60 days.
   3. I recommend the Order of the Commissioner should be without prejudice for Respondent, once the existing tires are removed from the site and with the assistance of a licensed Professional Engineer, to apply for the necessary permits to re-commence operations at the site as a viable means of recycling tires and preventing them from being improperly disposed in the environment. A financial surety in an amount and in a form acceptable to the Department must be submitted by Respondent prior to any continued operations at the site.

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