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Peterson Petroleum, Inc. - Order, August 26, 1994

Order, August 26, 1994


In the Matter


the Alleged Violations of Article 17 of the Environmental Conservation Law of the State of New Yorkk and 6 NYCRR Parts 613 and 703







  1. Pursuant to a Notice of Hearing and Complaint issued on May 25, 1993, an enforcement hearing was held before Administrative Law Judge John H. Owen on February 8, 1994 at the Department's Region 4 Office located in Schenectady, New Yorkk. The Department Staff appeared by Ann Lapinski, Esq. The Respondent appeared by Richard P. Feirstein, Esq.
  2. Upon review of ALJ Owen's Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations.
  3. Respondent violated Navigation Law 173 and 6 NYCRR Part 613, specifically 613.6(c) which requires the submission of monthly tank inspection reports, 613.3(b) which requires color coding of fill ports 613(c)(3) which requires installation of product level gauges, 613.3(c)(2) which requires the marking of tanks with design capacity, working capacity and identification number, 613.3(c)(2) which requires that tanks containing motor fuel be equipped with a solenoid valve, 613.3(c)(6) which requires secondary containment for tanks, and 613.5(a)(1)(IV) which requires timely tank testing and the timely submission of testing reports.

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

  1. In respect to the aforesaid violations, a civil penalty is hereby assessed against Respondent Peterson Petroleum Inc. in the amount of FORTY-FOUR THOUSAND FOUR HUNDRED NINETY-NINE ($44,499) to be paid within sixty (60) days after service of this Order upon said Respondent.
  2. Respondent is ordered to carry out the actions specified in the Recommendations section of the attached Report and that section is incorporated as part of this Order.
  3. All communications between Respondent Peterson and the Department concerning this Order shall be made to the Department's Region 4 Director, New Yorkk State Department of Environmental Conservation, 1150 North Westcott Road, Schenectady, New Yorkk 12306.
  4. The provisions, terms and conditions of this Order shall bind the Respondent Peterson, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of said Respondent.

State of New Yorkk
Department of Environmental Conservation

Dated: August 26, 1994
Albany, New York

TO: Richard P. Feirstein, Esq.
74 Chapel Street
Albany, New Yorkk 12207

Ann Lapinski, Esq.
Assistant Regional Attorney
Region 4, NYSDEC
1150 North Westcott Road
Schenectady, New Yorkk 12306

50 Wolf Road
Albany, New Yorkk 12233-1550

In the Matter


the Alleged Violations of Article 17 of the Environmental Conservation Law of
the State of New Yorkk and 6 NYCRR Part 613


DEC File No. R4-1583-92-03

John H. Owen
Administrative Law Judge


This matter involves Respondent Peterson Petroleum, Inc. ("Peterson") allegedly operating its headquarters, a registered Petroleum Bulk Storage ("PBS") facility and four gas stations it owns, with various violations having to do with tank tightness testing, filing inspection reports, marking and coding of tanks, tank equipment, and providing secondary containment where required.

Pursuant to a Notice of Hearing with Complaint (attached), dated May 25, 1993, the New Yorkk State Department of Environmental Conservation (the "Department" or "DEC") Region 4 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding conducted in accordance with the State Administrative Procedure Act ("SAPA"), Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New Yorkk ("6 NYCRR"), Part 613, against Peterson and David Williamson ("Williamson").

The complaint as originally drawn referred to a gas station site in Colonie, New Yorkk owned by Williamson and leased by Peterson and to the Peterson Headquarters site in Chatham, New Yorkk owned and operated solely by Peterson.

By letter dated June 23, 1993, counsel to Peterson requested that the part of the proceeding about the Colonie site be severed from the proceeding as to the Chatham site, because Williamson was not at all involved with the Chatham site. Thereafter, counsel to Williamson and Department Staff agreed in separate letters each dated July 13, 1993, with Staff counsel also requesting leave to amend the complaint to add allegations concerning four other gas stations owned solely by Peterson.

By Ruling dated July 20, 1993, Administrative Law Judge ("ALJ") John H. Owen granted both the severance and the amendment and directed Peterson's counsel to serve and file a supplemental answer responding to the new allegations and Peterson's counsel complied under date of August 4, 1993.

The hearing concerning the Colonie site was held before ALJ Owen on August 10 and 11, 1993 at the Department's Region 4 Headquarters at Schenectady, New Yorkk and was concluded at that time; and the matter of the Colonie site as against Peterson has been resolved upon ALJ Owen's report and the Commissioner's order dated May 25, 1994.

The subject of this report is the hearing on Peterson's five other sites: its Chatham Headquarters, Eddie's Auto Electric at Kinderhook, Fairview Sunoco at Hudson, Piester's Sunoco at Chatham, and East Greenbush Sunoco.

In accordance with the Notice of Hearing, an adjudicatory hearing concerning the Chatham and the four other sites was convened before ALJ Owen on February 8, 1994 at the Department's Region 4 Headquarters. Ann Lapinski, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff and Richard P. Feirstein, Esq. appeared on behalf of Peterson. The hearing was concluded that same date.

The Department Staff called witnesses David O'Brien, an Environmental Engineering Technician I, Region 4, and Mark Klotz, an Environmental Engineer II, Region 4; Peterson called John Simons, its Director of Operations; some thirteen (13) exhibits were received in evidence; and the record closed upon receipt of the last of the parties' post-hearing submissions on April 25, 1994.

Discussion of Alleged Violations

In its answer to the original complaint Peterson did not deny the allegations of violations at its Chatham Headquarters; in its supplemental answer Peterson did not deny the factual allegations of violations at the four other sites it owns; Peterson did not contest at the hearing any of the alleged violations at the Chatham or the four other sites; and Peterson did not contest in its post-hearing brief the allegations of violations at the Chatham site or the four other sites. Peterson's defense was limited to its efforts to mitigate penalties based upon alleged inability to pay and certain other factors, all of which will be dealt with in the Discussion of Penalties to follow.

The testimony of the Department's witness (O'Brien) as to all violations is fully credited, being based, for the most part, upon personal inspections, supported by photographs and, as to the remainder, upon documentation such as Department records and reports and correspondence to and from Peterson.

Since there is no substantial dispute regarding the factual allegations, there is no purpose in repeatedly describing the violations in a listing of the charges, in the discussion, and again in the findings of fact and conclusions of law; rather this report will proceed directly to the findings and conclusions concerning the violations site by site and in combination. Following the findings and conclusions the substance of this hearing report will address mitigating and aggravating factors concerning the DEC Staff's requested $26,000 penalty.

Findings of Fact and Conclusions of Law as to Violations

  1. As to the Chatham Headquarters, where Peterson owns seven aboveground tanks, Respondent Peterson Petroleum, Inc.:
    1. failed to submit monthly tank inspection reports thereby violating 6 NYCRR 613.6(c)
    2. failed to color code fill ports of the tanks thereby violating 6 NYCRR 613.3(b)
    3. failed to equip the tanks with product level gauges or equivalent devices thereby violating 6 NYCRR 613.3(c)(3)
    4. failed to mark the tanks with design capacity, working capacity and identification number thereby violating 6 NYCRR 613.3(c)(3)(ii)
    5. failed to equip one tank containing motor fuel (diesel) with a solenoid valve between the operating valve and the dispenser thereby violating 6 NYCRR 613.3(c)(2) and,
    6. failed to provide secondary containment for the tanks which are located in a permeable earthen dike thereby violating 6 NYCRR 613.3(c)(6).
  2. As to the Peterson-owned site known as "Eddie's Auto Electric" located at Kinderhook, New Yorkk where Peterson owns four underground tanks, Respondent Peterson Petroleum, Inc., while properly testing the tanks on November 24, 1992 (when all failed the test) did not retest (due within 30 days) until August 23, 1993, some eight months after the due date, thereby violating 6 NYCRR 613.5(a)(1)(IV).
  3. As to the Peterson-owned site at Hudson, New Yorkk known as "Fairview Sunoco" where Peterson owns three underground tanks, Respondent Peterson Petroleum, Inc. was required to retest by October 30, 1992, but did not do so until November 9, 1993, some thirteen months after the due date, thereby violating 6 NYCRR 613.5(a)(1)(iv).
  4. As to the Peterson-owned site at Chatham, New Yorkk known as "Piester's Sunoco" where Peterson owns four underground tanks, Respondent Peterson Petroleum, Inc. has failed to carry out the test upon Tank 4 Charges concerning the other three tanks at Piester's Sunoco were withdrawn by Staff counsel at the hearing. due November 30, 1992 thereby violating 6 NYCRR 613.5(a)(1)(iv).
  5. As to the Peterson-owned site at East Greenbush, New Yorkk known as "East Greenbush Sunoco" where Peterson owns three underground tanks, Respondent Peterson Petroleum, Inc.:
    1. failed to properly test the tanks in October and November 1992 (also one month after the due date) thereby violating 6 NYCRR 613.5(a)(1)(IV) and,
    2. failed to properly retest the tanks on January 27, 1994 (results rejected) making test results at least 16 months overdue thereby violating 6 NYCRR 613.5(a)(1)(IV).

Discussion of Penalties

Penalty determinations concerning PBS facilities call into play two guidance documents: The Commissioner's Civil Penalty Policy ("CCP") dated June 20, 1990 and a Memorandum from the Department's Central Office in Albany (received in evidence as Exhibit 7). The Memorandum contains a "Penalty Matrix" that sets forth suggested penalties for a series of PBS violations; and the memorandum states that these amounts may be adjusted upward or downward based upon certain factors including, but not limited to, duration of violation, actual or potential harm, culpability of the Respondent, Respondent's history of non-compliance, and Respondent's ability to pay.

The CCP is the focus. The Memorandum and the Penalty Matrix is what DEC Staff uses for its purposes.

ALJs follow the Commissioner's policy but need not strictly adhere to the memorandum nor matrix. Here, however, since the Staff document is consistent with the Commissioner's policy and it does provide relevant guidance, it will be used in determining the penalty recommendation.

In sum the penalty factors come down to two distinct branches: economic benefit and gravity components.

Economic benefit is a calculation based upon the estimated cost of a particular up-date item (such as a gauge) or a particular task (such as color-coding or tank testing) and factoring in the length of the delay and an interest rate. It represents the estimated amount of money saved by the Respondent (in effect a free loan) by not expending the funds necessary to bring the facility into compliance.

The gravity components set forth in the Penalty Matrix are specific but adjustable amounts for each violation. For the violations at issue here these amounts are:

  1. Monthly tank testing reports - $ 100 per tank
  2. Color-coding fill ports - $ 100 per tank
  3. Product level gauges - $ 100 per tank
  4. Marking tanks - $ 100 per tank
  5. Solenoid valve - $ 500 per dispenser
  6. Secondary containment - $7,000 per facility
  7. Tank testing - $1,000 per tank

As stated above the penalties suggested in the Penalty Matrix (the gravity components) may be adjusted upward or downward based upon the factors listed and other relevant factors. Economic benefit, however, being a calculation, is what is and is not subject to adjustment but it is to be added to the gravity components whether they are adjusted or not.

I. Economic Benefit

Staff witness Klotz appeared well qualified to make the estimates and perform the calculations and the results, albeit conceded to be only approximations, are acceptable as reasonably accurate. All of the figures will be set out specifically later in the Penalty Findings of Fact As To Penalties.

II. Gravity Components

A. Duration of Violations

Duration of Violations is an entirely separate gravity component, separate from both the maximum penalties set out in the ECL and separate from economic benefit even though each of those also take into account the length of time that the violations lasted.

The maximum penalties set out in the ECL (for instance, for secondary containment violations for 1,136 days over $28 million and for tightness testing - $25,000 per day for various numbers of days applicable to the individual sites - just under $104 million) would result in clearly excessive penalties.

Economic benefit, as noted, should be added to the penalties suggested in the Matrix.

Duration of violations as the separate gravity component is the subject of this observation in the CCP at Page 8:

"...[A]s a general proposition, the longer a violation continues uncorrected or unremediated, the greater is the risk of harm to...the natural resource and, correspondingly, the greater the size of the gravity component."

Here the length of time that the violations lasted is extensive. As noted, failure to install secondary containment went on for some 1,136 days until the calculation. Failure to test and report on one tank only (see specific time periods in the later Findings of Fact As To Penalties) went on for 431 days.

While the time period is taken into account somewhat by the economic benefit calculation (total $6630 - see Findings of Fact as to Penalties) this is a minuscule part of what the maximum penalties would bring.

I feel that while the maximum penalties would be greatly excessive economic benefit is too little.

Therefore the gravity component of duration of the violations should be increased by ten (10%) percent.

B. Actual or Potential Harm

Staff has assessed actual or potential harm as to the Chatham Headquarters site on the basis of the nearness of the Chatham Village water supply wells, and as to the four other sites on the basis of possible leaks in underground tanks going undetected for a rather long time absent timely testing.

The location of the Chatham Headquarters was fixed upon a State Department of Transportation map (Exhibit 10) which also contained a reference to "Waterworks" which, in turn, was established as the Chatham Village water supply wells by reference to a State Health Department map (Exhibit 8) and the same agency's listing of Columbia County's "Community Water System" (Exhibit 9).

The Chatham Village's wells are the active source of Village water and are located approximately 500 feet from the Chatham Headquarters site.

The distance was determined by Staff witness Klotz using an engineer's scale on a NYSDOT map (Exhibit 10). Such maps are commonly relied upon by engineers and scientists when measuring distances. Use of this method and the NYSDOT map may be rebutted with more accurate and reliable information.

Peterson contested the distance estimate, both as to the scale used (based upon the fact that the scale was units to units rather than so much distance to, say, an inch) and that measuring such a small distance on the maps was difficult at best; and Peterson contested the possibility of a leak affecting the wells by pointing out that the Staff had offered no hydrogeological data to prove the direction of groundwater flow and by also pointing out the presence of a Conrail railroad bed between the site and the wells which, it was claimed, would impede surface flow, providing in effect a form of secondary containment.

Klotz appeared fully capable of estimating the distance based upon standard engineering methods. Peterson's side did not seem to comprehend unit to unit measurement and would only recognize the road-map-type measurement scale.

Yet even if the distance were twice what the Department estimated there would be concern; even if the groundwater flow in the area was actually away from the wells, contamination of any soil or groundwater is a severe problem; and Peterson did not show that the railroad bed, even if we assume that it was elevated, was impermeable.

As to the other four sites, while the possibility of undetected leaks is a form of speculation, it remains that tank testing must be carried out on a timely basis so as to maximize the possibilities of avoiding leaks.

On the other hand, since actual environmental harm is a factor calling for, depending upon its extent, rather severe penalties and remediation requirements, it follows that lack of actual harm, whether the result of pure good luck or not, should be a meliorating factor.

Here (at least concerning the sites dealt with in this report) there has been no actual harm and the closest events came to harm was that a tank removed from Eddie's Auto Electric had a hole in it causing a deposit of an insignificant amount of product in the excavation.

On balance, with the potential harm here going to the very verge of environmental damage at "Eddie's", a five (5%) percent increase in the penalties would be appropriate here; and with the possibility of surface flow to the wells not having been excluded and soil and groundwater contamination a distinct possibility there should be another five (5%) percent increase in penalty, for a total of a ten (10%) percent increase here.

C. Culpability

For "culpability" to have any real meaning it must signify something beyond basic guilt of the charges. Where, for example, a respondent has intentionally caused environmental harm or has done so with complete indifference to the environment, such culpability would indicate an increase in penalty (See Penal Law 15).

While here there is no evidence that Peterson acted willfully or with complete indifference, Peterson was negligent in attending to its Headquarters and the gas stations, such that neither a downward nor upward adjustment of the penalty is reasonable.

D. Violator Cooperation

Respondent Peterson did not cooperate. For example, having done tank testing at Piester's Sunoco, Peterson did not submit the results to the Department until a year later. This in effect prevented DEC Staff from being notified whether the tank passed the test. Peterson also removed a tank at its Headquarters without ever notifying the Department which it was required to do by regulation. Peterson could have carried out closure of the Headquarters long ago and well before this proceeding was even instituted since it was essentially inoperable or abandoned. Peterson's excuse of bad weather last winter must fall upon deaf ears. A ten (10%) percent increase in penalty is not unreasonable for failing to cooperate.

E. History of Non-Compliance

"History of non-compliance" strongly suggests that the inquiry is to be limited to prior violations. There was no proof of any Peterson violations beyond those charged in the original and amended complaint here.

The violations at the Colonie site have been adjudicated as to Peterson by Interim Order of the then Acting Commissioner dated May 25, 1994. Those violations had to do with a petroleum leak there which took place at an unknown time prior to March 9, 1990.

Although March 1990 appears to pre-date any violations dealt with in this Report, the fact that the Colonie site was a part of this proceeding at one time does seem to foreclose classifying Peterson as a "prior" violator or as having a "history" of violations, such that no penalty adjustment is proper based upon this factor.

F. Ability to Pay

The ability to pay factor is a respondent's opportunity to prove that payment is not possible or, short of that, is an extreme hardship or will likely cause bankruptcy or business failure. (See Commissioner's Civil Penalty Policy, pages 10 and 11.)

Here Peterson, while claiming financial distress, offered no evidence in support of this claim. No financial records were produced and Peterson did not call its accountant as a witness.

Peterson did claim that the December 1991 Bankruptcy filing by its purported major customer, Cobble Pond Farms Inc. (Exhibit 13) deprived Peterson of its major source of income, yet Peterson offered no proof of its alleged dependence upon Cobble Pond Farms. In any case, the bankruptcy did not occur until about a year after the due date for update of Peterson's Headquarters. Thus, even if what Peterson claims is true, it had sufficient income (and time) to correct the problems at the Headquarters site. Moreover, Peterson's Director of Operations testified that the financial situation was improving and that Peterson planned a new tank with secondary containment at its Headquarters.

On balance, Peterson did not establish its inability to pay in any meaningful way such that no downward penalty adjustment can be granted.

III. Other Factors Concerning Penalties

Peterson offered various points as ameliorating factors and/or excuses concerning the violations. In regard to the Chatham Headquarters site, Peterson claimed that physical access to the tanks was impossible or very difficult. Yet a June, 1990 photograph (Exhibit 4 to Exhibit 5 in evidence) shows that the fill ports on the tanks were accessible. Peterson also claims that there was no danger of a leak since there has been nothing in the tanks except possibly some water; yet its own Director of Operations (Simons) indicated that what remained was probably "sludge" which in a petroleum context is a petroleum product.

As to Eddie's Auto Electric at Kinderhook, Peterson says it hired a contractor to do a new type of tank test which did not require that the tanks be filled.

As Peterson would have it, this spared its small rural customers the cost of filling each tank and this was the reason why the new test was selected. Yet no reason appears why Peterson could not have allowed the customer to pay for the fuel over a period of time or why the customer could not have obtained some form of "bridge" loan to effect the same result. Nor has Peterson disclosed the cost of the new test as compared to traditional testing methods.

In the end the new test was not effective and Peterson had to re-test by an earlier method involving filling the tanks.

I do not credit Peterson's claim that the lateness in proper tank testing was rooted in Peterson's desire to financially benefit its customers; and with Peterson failing to disclose the cost of the new test at least a suspicion is raised that Peterson was out to financially benefit only itself. Whether this suspicion is factual or not, Peterson has failed to prove any viable excuse for failing to test its tanks in a timely and proper manner.

Peterson speaks of money problems on the one hand and then says it has experimented with a new tank testing method at a financial loss itself. It follows then, says Peterson, rather than being penalized for testing lateness it should instead be given credit for pioneering for the industry and the Department. I accept neither the factual basis for nor the logic of this argument.

In addition to seeking credit for its experimental tank testing, Peterson also contends that stick-testing and inventory record keeping are adequate methods of detecting leaks. These methods of keeping track of product volume are not direct tank tightness testing; rather, they result only in highly dubious inference that no significant amount of product has escaped a particular tank. Both the E.P.A. (See 40 CFR 280) and the PBS regulations recognize that substantial product loss can evade detection by these indirect methods. I must accept the expert bases underlying the E.P.A. and DEC positions here and discount these substitute methods.

As to the Fairview Sunoco site at Hudson, Peterson claims that the testing delay was caused by its efforts to arrange the new test and its financial problems, both of which factors have been previously addressed.

As to the East Greenbush Sunoco site Peterson contends in its post-hearing memorandum that all required information has been submitted to the Department and that the Department has issued some form of "certificate." This is taken to mean that DEC staff have certified Peterson's operation at this site.

However, Staff witness Klotz was closely cross-examined on the matter and insisted that additional charts and graphs were needed to determine if the testing was properly carried out. If Peterson is referring to documents submitted after the close of the hearing, the reference is improper and cannot be considered. As to the "certificate," in the first place the record does not show the issuance of any relevant certificate; secondly, it appears that the certificate that Peterson is referring to has nothing to do with the timeliness or adequacy of tank testing; and thirdly, if the "certificate" was issued after the close of the hearing, it is also too late to be considered.

Findings of Facts as to Penalties


1. The factors that went into the economic benefit calculation and the results are:

Violation Time Period of Violations Cost of Current Violations Interest Rate Economic Benefit
1) Tank Testing Reports a) Eddie's -272 days
b) Fairview -374 days
c) Piester's -431 days
d) E. Greenbush -492 days
$100 per month 8% Taken together by Staff at: $2,410
2) Color-coding Fill Ports $100 per month 8%
3) Product Level Gauges $1,000 per tank 8%
4) Marking Tanks Not Estimated and Waived --
5) Solenoid Valve Not Estimated and Waived --
6) Secondary Containment 1,135 days $15,000 8% $3,350
7) Tank Testing $ 1,000 per tank 8% a) Eddie's- $250
b) Fairview- $230
c) Piester's-$ 90
d) E. Greenbush-$300

Total Economic Benefit - $6630

II. Gravity Components

A. Duration of Violation

2. The length of time that the violations lasted is extensive and most serious.

B. Actual or Potential Harm

3. The Village of Chatham's well water supply is located approximately 500 feet from Peterson's Chatham Headquarters.

4. There are no known impediments to groundwater flow from Peterson's site to the Village wells.

C. Culpability

5. Peterson was negligent in attending to its Headquarters and the gas stations.

D. Violator Cooperation

6. Peterson failed to cooperate with the Staff in the ways previously specified.

E. History of Non-Compliance

7. Peterson cannot be classified as either a prior violator or as having a history of violations.

F. Ability to Pay

8. Peterson has not established inability to pay within the meaning of this penalty policy factor.

III. Peterson's Ameliorating Considerations

9. Peterson has failed to establish any of the considerations it raised as meriting penalty reduction.

Thus my penalty recommendation (as compared to Staff's) is as follows:

Staff Proposal ALJ Recommendation
1. Chatham Headquarters
a) Economic benefit
i) Secondary containment 0 $ 3,350
ii) Other violations Failure to mark tanks and failure to have a solenoid valve not included. 0 $ 2,410
b) Gravity Components As suggested in the Penalty Matrix.
i) Secondary containment $ 7,000 $ 7,000
ii) Color coding ($100 per tank) $ 700 $ 700
iii) Level gauges ($100 per tank) $ 700 $ 700
iv) Inspection reports ($100 per tank per month x 11 months) $ 7,700 $ 7,700
v) Solenoid valve ($500 per dispenser) 0 $ 500
Subtatal $16,000 rounded to $15,000 $22,360
2. Eddie's Auto Electrics
a) Economic benefit 0 $ 250
b) Gravity Components ($1,000 per tank)3 $ 4,000 $ 4,000
3. Fairview Sunoco
a) Economic benefit 0 $ 230
b) Gravity Components ($1,000 per tank)3 $ 3,000 $ 3,000
4. Piester's Sunoco
a) Economic benefit 0 $ 90
b) Gravity Components ($1,000 per tank)3 $ 1,000 $ 1,000
5. East Greenbush Sunoco
a) Economic benefit 0 $ 300
b) Gravity Components ($1,000 per tank)3 $ 3,000 $ 3,000
Total $ 26,000 $ 34,230 Plus 30% $ 10,269
$ 44,499

Other Staff Requests

The Staff has also requested a Commissioner's order requiring Peterson to comply with the up-date requirements or close down the operation of the sites and deal with the remaining tanks generally in an environmentally responsible manner and specifically as directed by the Department. Since these requests are directly tied to the violations and are clearly foreseeable no purpose is seen in specifying them here.


  1. For having committed the violations specified in the Findings of Fact/Conclusions of Law, respondent Peterson Petroleum Inc. should be assessed a civil penalty (as specified above) in the total amount of $44,499 instead of the $26,000 proposed by the Staff.
  2. The Commissioner should make and enter an order requiring:
    1. that, within 30 days of the Commissioner's Order, Respondent submit acceptable plans to the Department for the following with respect to the facility owned by Peterson Petroleum located at Route 203, Town of Chatham, New York:
      1. an impermeable secondary containment system;
      2. installation of product level gauges or high level warning system;
      3. the marking of all tanks with the design capacity, working capacity, and identification number;
      4. the color-coding of all fill ports on all tanks;
      5. monthly inspection of the facility; and,
      6. equip the diesel fuel tank with a solenoid valve;


      that Respondent take the tanks permanently out of service in accordance with the requirements of 6 NYCRR 613.9;

    2. that, within 5 days of the Commissioner's Order Respondent provide adequate supporting documentation for the Tanks not referred to for testing matters have either been taken out of service, tested tight or otherwise require no action by respondent. tested at East Greenbush Sunoco. If the documentation is inadequate or not submitted, that within 15 days of notice of inadequacy, Respondent be required to retest the tanks pursuant to the requirements of 6 NYCRR 613.5. If the tightness tests are not conducted within 15 days required, Respondent shall, within 15 days of the due date for tightness testing, replace the tanks or take them out of service pursuant to the requirements of 6 NYCRR 613.9. If the tanks fail the tightness tests, Respondent shall immediately empty the tanks and repair, replace or take the tanks out of service pursuant to the requirements of 6 NYCRR 613 and 614;
    3. that, within 15 days of the Commissioner's Order, Respondent tightness test the 4th tank at Piester's Sunoco or take the tank out of service in accordance with the requirements of 6 NYCRR 613.9.
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