# Appendix — Mt. Hope Asphalt Corp. v. Zagata > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0992%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1041 ## Text ee ee et POPE res Pie 8 OPE RTT reopen EE IT STENT: vies! la APPENDIX A — DECISION AND JUDGMENT OF THE SUPREME COURT OF NEW YORK APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT FILED MARCH 16, 1998 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT AD2d Argued — October 27, 1997 ae: eee MYRIAM J. ALTMAN, J.P. WILLIAM D. FRIEDMANN GABRIEL M. KRAUSMAN LEO F. McGINITY, JJ. 96-08219 In the Matter of Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., and Barbara Petrosky, as Executrix of the Estate of Frank Petrosky, petitioners, v. Michael Zagata, etc., et al., respondents. DECISION & JUDGMENT Proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of the Commissioner of the Department of Environmental Conservation as, inter alia, after 2a Appendix A a hearing, determined that the petitioners violated Environmental Conservation Law 27-0707, 6 NYCRR 360-1.7, and Navigation Law 173 and 175, and imposed penalties and fines against them, denied the application of the petitioner Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., for a certificate to operate an afterburner, and revoked the permit of the petitioner Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., to construct and test a rehydration chamber. ADJUDGED that the determination is confirmed insofar as reviewed and the proceeding is dismissed, on the merits, with costs. In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination (see, Matter of Pell v. Board of Educ., 34 NY2d 222, 231). The petitioners’ contention that the determination of the Commissioner of the Department of Environmental Conservation (hereinafter the DEC) was not supported by substantial evidence is without merit. The testimony of the witnesses for the DEC established the facts necessary to sustain the charges that the petitioners had violated Special Conditions 4.13 and 5.13 of the permit, had discharged petroleum at the Mt. Hope facility in violation of the Navigation Law, and are unfit and unsuitable to hold DEC permits. The penalties immposed were not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., supra). March 16, 1998 3a Appendix A We have reviewed the petitioners’ remaining contentions and find them to be without merit. ALTMAN, J.P.,. FRIEDMANN, KRAUSMAN and McGINITY, JJ., concur. 4a Appendix A 96-082119 DECISION & ORDER ON MOTION In the Matter of Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., and Barbara Petrosky, as Executrix of the Estate of Frank Petrosky, petitioners, v Michael Zagata, etc., et al., respondents. Motion by the petitioners in a proceeding pursuant to CPLR article 78 which was transferred to this court by order of the Supreme Court, Nassau County, entered June 6, 1996, to substitute as a petitioner Barbara Petrosky, as the executrix of the estate of the deceased petitioner Frank Petrosky. Upon the papers filed in support of the motion and the papers filed in relation thereto, it is ORDERED that the motion is granted, and the caption of the above-entitled case is amended accordingly. ALTMAN, J.P., FRIEDMANN, KRAUSMAN and McGINITY, JJ., concur. ENTER: Martin H. Brownstein Clerk March 16, 1998 Sa APPENDIX B — ORDER OF TRANSFER, ENTERED JUNE 6, 1996 SHORT FORM ORDER SUPREME COURT — STATE OF NEW YORK Present: HON. THOMAS A. ADAMS JUSTICE TRIAL/IAS, PART 20 NASSAU COUNTY INDEX NO. 32468/95 MT. HOPE ASPHALT CORP., et al Plaintiff(s), - against - MICHAEL ZAGATA, et al Defendant(s). This is an Article 78 proceeding wherein petitioner sets forth a question specified in CPLR 7903(4) i.e., whether the determination which was made as a result of a hearing was supported by substantial evidence (see decision and order dated September 7, 1995, annexed as Exhibit A to the order to show cause). Respondent has moved to dismiss the first, second, fourth and sixth causes of action by raising “objections in point of law” pursuant to CPLR 7804(f). 6a Appendix B Upon consideration of the record submitted, this Court finds that the determination of the objections raised by the respondent will not terminate this proceeding. [CPLR 7804(g).] Accordingly, pursuant to the provisions set forth in CPLR 7804(g), this matter should be transferred to the Appellate Division for disposition of the substantial evidence issue and all other issues raised in this proceeding. In view of the foregoing, respondent is directed to serve and file an answer within twenty (20) days from the date of this order and upon filing such answer, the matter will be remitted to the Appellate Division, Second Department. DATED MAY 31, 1996 s/ [illegible] J.8.C. 7a APPENDIX C — DECISION AND ORDER OF THE NEW- YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DATED SEPTEMBER 7, 1995 STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION Consolidated Hearing In the Matter of Alleged Violation of Articles 19 and 27 of the New York Environmental Conservation Law and Parts 201, and 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, and Proceedings to Revoke All Permits Now Held by and Deny All Applications for Permits Filed by, DEC. Nos. 1-5445-93-09, 1-4722-01052/00003-0, 1-4722-01052/00004-0, AND BENEFICIAL USE DETERMINATION MT. HOPE ASPHALT CORP., a/k/a MOUNT HOPE ASPHALT CORP. and FRANK PETROSKY, Individually,, and In His Capacity as an Officer of MT. HOPE ASPHALT CORP., a/k/a MOUNT HOPE ASPHALT CORP., Respondents. 8a Appendix C DECISION AND ORDER WHEREAS: 1. Staff of the Region 1. Office of the New York State Department of Environmental conservation (“Staff”) duly served a Notice of Hearing and Complaintupon Respondents, thereby initiating an administrative enforcement hearing. Separately, Staff issued a notice of intent to revoke a permit held by Respondent Mt. Hope Asphalt Corp. (“Mt. Hope”), revoke a Beneficial Use Determination issued to Mt. Hope and deny its application for permit renewal. 2. Pursuant to a ruling by Administrative Law Judge (“ALJ”) Kevin J. Casutto, issued on November 10, 1994, the two actions were consolidated. An evidentiary hearing on the consolidated action was commenced on January 3, 1995, at the Department’s Region 1 Office, Stony Brook, New York, and continued on January 4th, Sth, 9th, 10th, 11th, 12th, 17th, 18th, 19th, 20th and January 25, 1995. 3. Staff appeared and was represented at the hearing by Assistant Regional Attorneys Louise Aja and Udo Drescher, Region I Office, Stony Brook, New York. Respondent Mt. Hope Asphalt Corp. appeared and was represented by Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., EAB Plaza, West Tower (14th Floor), Uniondale, New York 11556-0120, Sanford Strenger, Esq., of counsel, and Respondent Frank Petrosky appeared and was represented by Zimmer & Mazzei, 400 Townline Road, Hauppauge, New York 11788, Timothy, P. Mazzei, Esq., of counsel. 9a Appendix C 4. Upon review of the record and the Consolidated Hearing Report (the “Report”) of ALJ Casutto (copy attached), I hereby adopt its Findings, Conclusions and Recommendations as my own. 5. I concur with the ALJ’s recommendation concerning relief for the reasons stated in the Report. I find Respondent Mt. Hope unsuitable and unfit to engage in the activities for which it is currently permitted. 6. Concerning the Beneficial Use Determination which Respondent Mt. Hope received, 6 NYCRR §5202.2(d) required Respondents to comply with ai! conditions of Mt. Hope’s Permit to Construct EP2. Therefore, compliance with the Permit to Construct was a condition upon which the Beneficial Use Determination was made. Respondents’ receipt, storage and processing of petroleum-contaminated soil from sites in New Jersey was not authorized by the Permit to Construct EP2, and consequently, was not within the scope of authority of the Beneficial Use Determination made by Department Staff. 7. Iconcur in the ALJ’s ruling which limited Staff's cause of action in complaint paragraph B7 to address only those reporting violations alleged to have occurred after May 8, 1992. NOW THEREFORE, having considered this matter, it is ORDERED that: I. Respondents Mt. Hope and Petrosky have violated Special Conditions (4)(B) and (5)(B) of Respondent Mt. Hope’s Permit to Construct EP2; ECL §27-0707 and 6 NYCRR 360- 1.7; and Navigation Law §1.73 and Navigation Law §175. 10a Appendix C II. Respondent Mt. Hope and Respondent Frank Petrosky, individually and in his capacity as an officer of Respondent Mt. Hope Asphalt Corp., with joint and several (iability, shall pay a penalty in the amount of Sixty Three 7 housand, Four Hundred ($63,400.00) Dollars, and an additional penalty of Ten Thousand ($10,000.00) Dollars is hereby assessed against Respondent Mt. Hope, due and payable within thirty (30) days of service of a conformed copy of this Order upon Respondents. II]. The charges against Respondents Mt. Hope and Petrosky, of violating Special Permit Condition (5)(e) (Permit to Construct EP2), ECL §17-0501, 6 NYCRR 613.8 are hereby dismissed. IV. Respondents shall immediately cease importing any additional materials to the site and perform remedial investigation, remediation and closure of the Site in accordance with the recommendations of, and subject to the approval of, Department Staff. V. Respondent Mt. Hope’s Permit to Construct EP4 (#1- 4722-01052/00004-0) is hereby revoked and its permit application for all; Certificate to Operate EP2 (#1-4722-01052/ 00003-0) is hereby denied. In effect, revocation and denial of Respondent Mt. Hope’s permit and permit application render the Beneficial Use Determination void, because the BUD was conditioned upon Respondents’ operation of the Calverton facility. VI. All communications between Respondents and Department Staff concerning this order shall. be made to: Ray Cowen, Region I Regional. Director, New York State Department of Environmental Conservation, Loop Road, Building 40, Stony Brook, New York, 117902356. lla Appendix C VII. The provisions, terms and conditions of the Order shall bind Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondents. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION MICHAEL ZAGATA, COMMISSIONER s/ Michael Zagata Dated: Albany, New York September 7, 1995 To: Sanford Strenger, Esq. Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano EAB Plaza Uniondale, NY 11556-0120 Timothy P. Mazzei, Esq. Zimmer & Mazzei 400 Townline Road Hauppauge, NY 11788 Louise M. Aja, Esq. Assistant Regional Attorney Region 1, NYSDEC Building 40, SUNY Campus Stony Brook, NY 11790-2356 12a Appendix C Mt. Hope Asphalt Corp. (a/k/a Mount Hope Asphalt Corp.) 395 Nugent Drive Calverton, NY 11933 Frank Petrosky President Mt. Hope Asphalt Corp. (a/k/a Mount Hope Asphalt Corp.) 395 Nugent Drive Calverton, NY 11933 Frank Petrosky c/o Mt. Hope Asphalt Corp. 395 Nugent Drive Calverton, NY 11933 Frank Petrosky 21 Andiron Lane Brookhaven, NY 11917 “az. ee ae ee ee ee 13a Appendix C STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION 50 Wolf Road Albany, New York 12233-1550 Consolidated Hearing In the Matter o Of « Alleged Violation of Articles 17, 19 and 27 of the New York State Environmental Conservation Law (ECL) , and Parts 203, 360 and 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, and the Navigation Law of the State of New York, by MT. HOPE ASPHALT CORP., a/k/a MOUNT HOPE ASPHALT CORP., AND FRANK PETROSKY INDIVIDSUALLY AND IN HIS CAPACITY AS AN OFFICER OF MT. HOPE ASPHALT CORP., a/k/a MOUNT HOPE ASPHALT CORP. RESPONDENTS. DEC NOS. 1-4722-01052/00003-01 1-4722-01052/00004-0 AND BENEFICIAL USE DETERMINATION 14a Appendix C HEARING REPORT = by mn s/ Kevin J. Casutto Kevin J. Casutto Administraive Law Judge SUMMARY This hearing report addresses a consolidated action concerning alleged violations of water, air, and solid waste law and regulation, and Navigation Law and regulation by Respondents, and Staff’s intent to revoke and deny Respondents’ permits and permit applications based upon the alleged violations and Respondents, other relevant history. Respondents opposed Staff's notice of intent to revoke their permit to construct an air pollution source, revoke a Beneficial Use Determination authorizing the use of petroleum- contaminated soil for the production of hot asphalt, and deny their permit application for a Certificate to Operate an air pollution source. Respondents presented a direct case attempting to show that the use of petroleum-contaminated soil in the production of hot asphalt was a new process, and a “learning experience” for both Respondents and Staff. Further, Respondents assert they did not commit any regulatory or statutory violation in operation of their facility but instead, continually sought to cooperate with Staff. The report concludes that Respondents Mt. Hope and Petrosky, violated Special Conditions (4)(B) and (5)(B) of Respondent Mt. Hope’s Permit to Construct an air pollution ” 15a Appendix C source referred to as EP2; ECL §27-0707 and 6 NYCRR 360- 1.7; and Navigation Law §§173 and 175. The report further concludes that the charges against Respondents Mt. Hope and Petrosky, of violating Special Permit Condition (5)(E) (Permit to Construct EP2), ECL §17-0501, 6 NYCRR 613.8 should be dismissed. Although staff sought a penalty of $1.4 million, the report recommends a monetary penalty in the amount of $63,400.00 be assessed against Respondent Mt. Hope and Respondent Frank Petrosky, individually and in his capacity as an officer of Respondent Mt. Hope Asphalt Corp., jointly and severally, and that an additional penalty of $10,000.00 be assessed against Respondent Mt. Hope. Further, the report recommends finding that Respondent Mt. Hope is unsuitable and unfit to hold Departmental permits. Respondent Mt. Hope’s Permit to Construct EP4 (#1-4722- 01052/000040) should be revoked and and its permit application for a Certificate to Operate EP2 (#1-4722-01052/00003-0) should be denied. Respondents should be ordered to cease importing any additional materials to the site, and ordered to perform remedial investigation, remediation and closure at the site pursuant to NL §173, ECL Article 27 and 6 NYCRR Part 360. PROCEEDINGS Pursuant to Articles 70 and 71 of the Environmental Conservation Law of the State of New York (“ECL”) and Part 622 of Title 6 of the Official Compilation of Code, Rules and Regulations of the State of New York (“6 NYCRR”) , a consolidated administrative enforcement/permit revocation/ l6a Appendix C permit denial hearing was held before Administrative Law Judge (“ALJ”) Kevin J. Casutto, New York State Department of Environmental Conservation, Office of Hearings. The hearing was held on January 3, 1995, and was continued on eleven additional dates, concluding on January 25, 1995, in the New York State Department of Environmental Conservation (“DEC” or the “Department”) Region 1 Regional Office, Loop Road, Building 40, Stony Brook, New York 11790-2356. Following the hearing, the ALJ set a schedule for filing initial and reply memoranda. The complete hearing transcript was received by the Office of Hearings on February 15, 1995. The parties, initial memoranda were received on or before March 13, 1995, and the hearing record was closed on March 27, 1995 with receipt of the parties’ reply memoranda. Introduction Respondent Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp. (“Mt. Hope”) has operated a facility at Nugent Drive, Calverton, New York using virgin materials to produce hot asphalt, for approximately 22 years. In or about July, 1990, Thomas Accardi of Disposal Technologies, Inc. (“Accardi” and “Disposal Technologies,” respectively) approached the New York State Department of Environmental Conservation (“the Department” and “Staff”, respectively) Region I Staff with his concept of using No. 2 fuel oil-contaminated soil in the asphalt manufacturing process in place of virgin material, and staff approved the concept, under certain conditions. By late August, 1990, Mr. Accardi approached the Department’s Division of Air with a proposed application to implement his concept. This application was on behalf of Respondent Mt. Hope and sought authority to modify Mt. Hope’s certificate to operate its existing 17a Appendix C asphalt plant at Calverton, Long Island (the “facility”) to authorize the processing of contaminated soil through the asphalt plant’s dryer for incorporation into asphalt products. In or about Spring, 1991, Respoadent Mt. Hope, with the assistance of Disposal Technologies, Inc. and Thomas Accardi, sought authority to upgrade its facility for use of petroleum- contaminated soil in hot asphalt production. The Mt. Hope application was the first in the State of New York proposing to process petroleum-contaminated soil in the production of asphalt. On or about August 9, 1991, Respondent Mt. Hope, obtained a beneficial use determination (“BUD”) and a Permit to Construct an afterburner referred to as Emissions Point 2 (application #1-472201052/00003-0; Permit to Construct Emission Point No. 00002, an afterburner [“EP2”]; “permit to construct afterburner” or “permit to construct EP2”). Mt. Hope constructed the afterburner, and in or about October, 1992, Mt. Hope filed an application for issuance of a Certificate to Operate a Source of Air Contamination, for EP2. On January 14, 1993 Respondent Mt. Hope entered into a Consent order with the Department to resolve certain violations and to assure continued authority to operate EP2 (Consent Order #1-507492-06). The Consent Order required, among other things, construction of a rehydration chamber, Emissions Point 4. Thus, on or about February 16, 1993, Mt. Hope submitted an application for a Permit to Construct/ Certificate to operate a Rehydration Chamber, EP4. On July 22, 1993, the Department issued the Permit to Construct and Test a Rehydration Chamber (Permit to Construct #1-4722-01052/00004-0 (Emission Point No.00004, rehydration chamber (“EP4”)]; permit issued July 19, 1993, indicating an expiration date of July 18, 1994). 18a Appendix C Earlier, on May 28, 1991 Respondent Mt. Hope entered into a Consent Order with the Department to resolve violation of ECL Article 19 and 6 NYCRR Part 201 related to the facility (Consent Order RI-4570-91-05). On July 18, 1991, Respondent Mt. Hope entered into a Consent Order with the Department to resolve violations of ECL Articles 15 and 25, and 6 NYCRR Part 661, related to another Mt. Hope facility located in Flushing, Queens, New York. (Consent Order #R2-3559-91- 03). On September 15, 1993 Staff issued a combined Notice of Intent to Revoke Mt. Hope’s Permit to Construct the EP4 rehydration chamber, revocation of Mt. Hope’s BUD and denial of Mt. Hope’s application for a Certificate to Operate EP2 (a modified facility including the afterburner and rehydration chamber, which was intended to process petroleum- contaminated soil in the production of asphalt (“the combined notice” and hereinafter referred to as the “Permit” aspect of the consolidated action)). By letter dated September 28, 1993, pursuant to 6 NYCRR Parts 621 and 624, Respondents sought a hearing to review Staff's combined Notice of Intent to Revoke the EP4 permit to construct (621.14(d)), Denial of Mt. Hope’s application for a permit to operate EP2 (6 NYCRR 621.7(f)) and BUD Revocation. Since autumn, 1993, Respondents have ceased all production of asphalt at the facility. * * * 19a Appendix C Separately, by Notice of Hearing and Verified Complaint dated September 17, 1993, duly served upon Respondents, Staff initiated an enforcement action against Mt. Hope and three corporate officers, Jay Boyle, Paul Abrams and Frank Petrosky (hereinafter referred to as the “enforcement” aspect of the action). The corporate officers were charged in their corporate and individual capacities. During pre-hearing motion practice and discovery, Staff withdrew its Complaint against two of the three corporate officers, Jay Boyle and Paul Adams. Respondent Frank Petrosky, the third individual respondent, is President of corporate Respondent Mt. Hope. On November 10, 1994, upon joint motion of Staff and Respondents, the two actions were consolidated into a single action, to proceed under 6 NYCRR 622. The joint motion for consolidation was granted because the allegations in Staff's enforcement action are also asserted as a basis for revocation/ denial in Staff's permit action. Six substantive pre-hearing rulings were issued. On June 22, 1994, a “Ruling on Prehearing Motions” [First Ruling] on July 12, 1994 a “Ruling on Motion for Reconsideration” [Second Ruling]; on September 29, 1994 a “Ruling on Motion for Disqualification and Motion to Dismiss Affirmative Defenses” [Third Ruling]; on November 1, 1994 a “Ruling on Motion to Amend Complaint” [Fourth Ruling]; on December 7, 1994 a “Ruling on Motion to Quash” [Fifth Ruling]; and on December 27, 1994 a “Ruling on Asserted Privileges [Sixth Ruling]. Staff sought leave to appeal to the Commissioner, from the second Ruling insofar as it precluded Staff from pursuing a portion of its cause of action for the time period prior to May 20a Appendix C 9, 1992. By determination of the Assistant Commissioner for Hearings, dated August 5, 1994, Staff’s application for interlocutory appeal was denied. However, Staff was advised that the issue could be preserved for review at the conclusion of the proceeding in Staffs closing brief, and Staff has done so. Staff’ initial Complaint was ainended twice prior to hearing. Pursuant to the First Ruling, on July 8, 1994 Staff filed its first Amended Complaint revising its theory of liability on one cause of action. In response, Respondents filed an amended answer dated September 1, 1994. Subsequently, by Order dated November 3, 1994, the ALJ granted Staff's motion seeking to file its Second Amended Complaint, adding a new cause of action. The new cause of action alleges Respondents buried petroleum-contaminated soil in the parking lot of their asphal' processing plant located at 395 Nugent Drive, Calverton, New York, in violation of Navigation Law (“NL”) Article 12, ECL Article 19 and 6 NYCRR Parts 360 and 613. Staff does not seek additional monetary penalties for this new cause of action, but seeks an order of remediation. The new allegations are also discussed below in the context of the record of compliance/ permit aspect of this consolidated action. Following issuance of the initial Complaint, in autumn, 1993, the Office of the Suffolk County District Attorney obtained an indictment against Respondents Mt. Hope and Petrosky, based at least in part upon activities that are at issue in this consolidated administrative action. That matter was pending, pretrial, at the time this administrative consolidated hearing was held. istration So teaes 2la Appendix C An evidentiary hearing on the consolidated action was commenced on January 3, 1995, and continued on January 4th, Sth, 9th, 10th, 11th, 12th, 17th, 18th, 19th, 20th and January 25, 1995. Staff appeared and was represented at the hearing by Assistant Regional Attorney Louise M. Aja and Assistant Regional Attorney Udo Drescher, NYSDEC Region | Office, Loop Road, Building 40, Stony Brook, New York 11790-235¢. To support its case, Staff presented fourteen witnesses: Kathryn Murphy, Environmental Program Specialist I., Robert Becherer, Regional Hazardous Substances Engineer, Sid Caramintzos, Environmental Engineer 1, Karen Baker (née Munze) , Bureau of Water Resources, Robert A. Greene, Regional Permit Administrator, Karen Gomez, Environmental Engineer 2 and Ray E. Cowen III, Regional Director. From the Office of the Suffolk County District Attorney, Steven Drielak, Detective Lieutenant, Commanding Officer, Environmental Crime Unit; from the Suffolk County Department of Health, George Mathew, Chemist, Francis J. Amendola, Forensic Scientist, Madelaine Feindt, Public Health Sanitarian and Scott Mirabella, Chemist. Also called to testify by Staff were Kathleen Morrison a former employee of Respondent Mt. Hope, and Richard Parish, President, Impact Environmental, Inc. Initially, Respondents Mt. Hope and Petrosky appeared and were represented by McMillan, Rather, Bennett & Rigano, P.C.., Barry S. Cohen, of counsel. On or about February 24, 1994, the law firm of Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., EAB Plaza, West Tower (14th Floor), Uniondale, New York 1 1556-0120, Sanford Strenger, Esq., of counsel, assumed representation of Respondents. On or about November 10, 1994, the law firm of Zimmer & Mazzei, 400 Townline Road, Hauppauge, New York 11788, Timothy P. Mazzei, Esq., assumed representation of Respondent Frank Petrosky. 22a Appendix C Respondent Mt. Hope presented testimony from Jay Boyle, an employee of Respondent Mt. Hope and Olin C. Braids, Ph.D. Respondent Petrosky presented no witnesses. Staffs Position I. The Notice of Hearing and Complaint Pursuant to a ruling by the Administrative Law Judge (“ALJ”), Staff filed the (First) Amended Complaint on July 8, 1994'. The First Amended Complaint was different from the initial Complaint insofar as it included, in Complaint §C(6)(b), the allegation that because Respondent had violated a Beneficial Use Determination, the subsequent receipt and/or processing and/or disposal of any material without a permit under 6 NYCRR Part 360 was a violation of Part 360. On September 30, 1994 the Department filed a motion to amend the First Amended Complaint by adding a new section “D”. This new section alleges that Respondents violated ECL Article 17 and 6 NYCRR Part 613 because they caused a discharge of petroleum through the burial and stockpiling of petroleum-contaminated soil at the facility on or before September 16, 1993, and further that Respondents failed to notify the Department of that discharge. In addition, Staff alleges that Respondents violated 6 NYCRR Parts 360- 1.7(a)(1)(i) and 360-1.5(a), because the burial and stockpiling of petroleum-contaminated soil constitutes disposal of solid waste. Staff asserts that such activities require a solid waste management facility (“SWMF’”) permit issued pursuant to ECL 1. “Ruling on Prehearing Motions” (First Ruling) from June 22, 1994, at p.7 42. 23a Appendix C Article 27 and 6 NYCRR Part 360, which Respondents did not possess. While the actual penalty amount requested remained the same as in the First Amended Complaint, new section “D” of Staff’s Second Amended Complaint seeks remedial investigation and remediation, i.e., clean-up of all petroleum- contaminated soil at the facility. Staff's motion to add the additional cause of action was granted, and the Second Amended Complaint (hereinafter, the Complaint”) was deemed served on November 3, 19947. Staff alleges violations by Respondents in its Second Amended Complaint, which are summarized as follows: Complaint Section B; Violation of ECL Article 19, and6 NYCRR Part 201 Violation of ECL Article 19, 6 NYCRR §201.2(d) and Permit to Construct (EP2), Special Permit Condition #4.B., by Respondents’ receipt and/or processing on 39 occasions’, of contaminated soil from sites located in the State of New Jersey which did not have a NYSDEC-assigned spill number. Violation of ECL Article 19, 6 NYCRR §201.2(d) and Permit to Construct (EP2), Special Permit Conditions #5.B. and 5.E., by failure to maintain, and failure to submit to the Department on a 2. Fourth Ruling, November 1, 1994. 3. Identified in “Appendix A”, attached to this Hearing Report. 24a Appendix C quarterly bass, logs which contained entries for each of the 39 instances described in the first alleged violation. (In its closing brief, Staff changed its position by asserting it has proven 36 of the 39 instances alleged in the Complaint). Complaint Section C: Violation of ECL Article 27 and 6 NYCRR Part 360 Respondents violated ECL §27-0707 and 6 NYCRR 360-1.7, by operating a solid waste management facility (“SWMF”) by receipt and/or processing and/ or disposal of contaminated soil on the above referenced 39 occasions, in a manner not consistent with a Beneficial Use Determination (“BUD”) issued to Respondent Mt. Hope (issued August 9, 1991); or alternatively, Respondents violated ECL §27-0707 and 6 NYCRR 360-1.7, because the BUD did not contemplate receipt and/or processing and/ or disposal of any material from August 7, 1991 to September 15, 1993. (As noted above, in its closing brief, Staff changed its position by asserting it has proven 36 of the 39 instances alleged in the Complaint). Complaint Section D: Violation of Navigation Law Article 12, ECL Article 17 and 6 NYCRR Parts 360 and 613 Respondents violated Navigation Law §173 and ECL §17-0501()) by causing a discharge of i Bi a it ahr ia a oe Se eee 25a Appendix C petroleum at the Mt. Hope facility on or before September 16, 1993, which violation constitutes a continuing violation from at least September 16, 1993 to the present. Respondents violated NL §175 and 6 NYCRR 613.8 by failing to report the facility’s spill to the Department (now identified by Department spill number 94-07172). Respondents violated 6 NYCRR 360-1.7(a)(1)(i)‘, by continuing storage and disposal of petroleum- contaminated soil at the Mt. Hope facility, from at least September 16, 1993 to the present. Staff maintains that since Respondent Petrosky is the President of Respondent Mt. Hope and has been responsible for daily management of Mt. Hope, Respondent Petrosky is liable for the alleged violations both individually and in his corporate capacity. Staff seeks a monetary penalty of $1,081,500.00 from Respondents, jointly and severally, for these alleged violations, or in the alternative, pursuant to the ALJ’s Second Ruling, a monetary penalty of $877,500.00 from Respondents, jointly and severally (Staff revised its request for monetary penalty slightly downward in its closing brief) . Staff also seeks an order that Respondents 1) cease conducting any activities within the Department’s regulatory authority; 2) submit a remediation plan and implementation schedule for Staff's approval; and upon 4. Staff alleges violation of this provision by Respondents prior to and after the regulatory provision was amended, effective October 9, 1993. 26a Appendix C approval, remediate and clea up all petroleum-contaminated soil at the facility, whether buried or above ground; and 3) such other and further relief as the Commissioner may deem just and proper. II. The Combined Notice of Intent to Revoke, Revocation and Denial Further, pursuant to Staff’s combined notice and the allegations set forth in the Complaint that Staff asserts it has proven at hearing, Staff seeks revocation of all Departmental authority granted to Respondents to operate the facility, and denial of all Respondents’ pending applications for continuing or additional authority to operate, because Respondents are allegedly unsuitable and unfit to engage in environmental activities regulated by the Department due to their history of non-compliance. By ietter dated September 15, 1993 Staff issued to Respondent Mt. Hope, a Notice of Permit Denial (regarding Mount Hope’s application #1-4722-01052/00003-0, for Certificate to Operate EP2) , Notice of Intent to Revoke (Permit to Construct #1-4722-01052/00004-0, Emission Point 4, rehydration chamber) and Revocation of Beneficial Use Determination (regarding a Beneficial use Determination issued to Mt. Hope on August 9, 1991). In effect, Staff seeks revocation of all authority Respondents have been granted to operate the facility, and denial of all pending applications for additional or continued authority to operate. The combined notice letter identifies five factors upon which Staff bases its notice: (1) violation of Permit to Construct (EP2) permit condition requiring only use of petroleum- 27a Appendix C contaminated soil from sites identified by a Departmental spill number on 39 occasions; (2) violation of Permit to Construct permit condition (EP2 afterburner) requiring maintenance and quarterly submittal of records to Staff, which submittals failed to identify 39 instances of receipt of contaminated soil at the facility; (3) that commission of the two above referenced violations rendered the Beneficial Use Determination invalid on those dates, and therefore constituted operation without a solid waste management facility permit on those dates, in violations of ECL Article 27 and 6 NYCRR 360 (“Part 360”); (4) failure to comply with audit requirements imposed by the January 14, 1993 Consent Order; and (5) Respondents’ history of non-compliance, including a July 18, 1991 Consent Order; the January 14, 1993 Consent Order; and six criminal simplified information issued to L.L.H. Recycled Aggregates (a company which shares ownership and operations with Respondent Mt. Hope). ai lh ali Acta bela Respondents’ Position Respondents filed an Answer to the initial Complaint and cach Amended Complaint. In response to Staff's Second Amended Complaint, Respondents each filed an Answer dated 28a Appendix C October 6, 1993. Those Answers each assert two affirmative defenses. First, Respondents each assert as an affirmative defense, that in the 39 instances when Mt. Hope received petroleum- contaminated soil from New Jersey sites, the soil had not been used for stack testing, but had been part of general operations that had been conducted at the facility as permitted by the Department. Therefore, Respondents assert that Staff failed to prove that Mt. Hope violated the ECL or regulations of the Department in the manner alleged in the Department’s Second Amended Complaint dated September 30, 1994. Second, Respondents each assert as an affirmative defense, that the allegations contained in Section “C” of the Second Amended Complaint (alleging violations of ECL Article 27 and 6 NYCRR Part 360) were conducted within the authority of the BUD or, in the alternative, were consistent with the requirements of ECL Article 27 and 6 NYCRR 360. These affirmative defenses are discussed below in the context of the corresponding Complaint allegations. Respondents assert the record demonstrates that Respondent Mt. Hope committed no violation of Departmental regulatory programs, but to the contrary, performed a valuable service to the public in the manufacture of asphait and the education of the Department as to how petroleum-contaminated soil waste can be recycled into an environmentally sound and beneficial product, hot asphalt. Further, regarding alleged discharge of petroleum product, Respondents assert that samples collected and analyzed by Suffolk County Department of Health Services (“SCDOHS”) rected sti 7 S 29a Appendix C are unreliable due to improper sampling technique, improper sample analysis method and failure to maintain chain of custody of the samples. Respondent Petrosky asserts that Staff failed to establish that he was individually liable for any violation alleged in Staff's Complaint. Petrosky further asserts that Staff failed to prove that he was involved in the day-to-day activities of the facility, or was involved in the day-to-day operation of the facility. Regarding the permit aspect of the consolidated action, Respondents assert that Staff failed to show that Respondents are unfit and unsuitable to engage in regulated environmental activities. Therefore, Respondents assert that Mt. Hope should receive a Certificate to Operate EP2, at which Mt. Hope may produce asphalt and asphalt products utilizing petroleum- contaminated soil as an aggregate and a Permit to Construct and test EP4, the rehydration chamber. Further, Respondents assert that the Beneficial Use Determination (“BUD”) authorizing Mt. Hope to receive, temporarily store and use petroleum-contaminated soil as an aggregate in asphalt production, should be continued. Respondents conclude that the alleged violations against Respondent Mt. Hope and Respondent Petrosky should be dismissed, and Certificates to Operate Mt. Hope’s afterburner, EP2, and its rehydration chamber, EP4, with petroleum- contaminated soil should be granted. 30a Appendix C Findings of Fact 1. Background 1. Respondent Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp. (“Mt. Hope”) is a corporation with offices for the transaction of business at Nugent Drive, Calverton, New York. Respondent Mt. Hope has operated a facility at that location for approximately 22 years, using virgin materials to produce hot asphalt. 2. Respondent Frank Petrosky is President of corporate Respondent Mt. Hope. 3. In or about July, 1990, Thomas Accardi of Disposal Technologies, approached the Department’s Region I Staff with his concept of using No. 2 fuel oil-contaminated soil in the asphalt manufacturing process in place of virgin material. 4. Thomas Accardi was a principal of Disposal Technologies, Inc. . 5. By late August, 1990, Accardi approached Staff of the Department’s Division of Air with an application on behalf of Respondent Mt. Hope to implement his concept of using No. 2 fuel oil-contaminated soil in the asphalt manufacturing process in place of virgin material. Accardi sought authority to modify Mt. Hope’s Certificate to Operate its existing asphalt plant at Calverton, Long Island (the “facility”) to authorize the processing of contaminated soil through the asphalt plant’s dryer for incorporation into asphalt products. ms a, Pes ln” Mls PME MP item ome 8. 3la Appendix C 6. The Mt. Hope application was the first in the State of ‘New York proposing to process petroleum-contaminated soil in the production of asphalt. 7. Staff approved the concept, with certain conditions. On or about August 9, 1991, Respondent Mt. Hope, obtained a beneficial use determination (“BUD”) and a Permit to Construct an afterburner referred to as Emissions Point 2 (“Permit to Construct afterburner” or “Permit to Construct EP2”). The BUD and Permit to Construct EP2 specified conditions under which the Accardi/Mt. Hope proposal was authorized. 8. The expiration date of the Permit to Construct EP2 was August 6, 1992. At Respondents’ request, the permit was later amended by extending the expiration date to September 21, 1992. The purpose of this extension was to provide additional time for Respondents to conduct the EP2 stack test. 9. The cover letter to the Permit to Construct, dated August 9, 1991, was a Beneficial Use Determination (issued pursuant to 6 NYCRR 360-1.2[a][4][vii][a]). 10. Prior to issuance of the Permit to Construct EP2, a two-day stack test was conducted at the facility on November 7, 1990 and November 9, 1990. 11. Respondent Mt. Hope constructed the EP2 afterburner and conducted a stack test of the afterburner on August 26, 1992. 12. In or about October, 1992. Mt. Hope filed an application for issuance of a Certificate to Operate EP2, a Source of Air Contamination. 32a Appendix C II. The Enforcement Action 13. Staff initiated an enforcement action against Respondents Mt. Hope and three corporate officers, Jay Boyle, Paul Abrams and Frank Petrosky, by Notice of Hearing and Verified Complaint dated September 17, 1993, duly served upon Respondents (hereinafter referred to as “the enforcement” action). 14. The three corporate officers were charged both in their corporate and individual capacities. Staff withdrew its Complaint against Jay Boyle and Paul Adams, during pre- hearing motion practice and discovery. 15. Following issuance of the initial Complaint, in autumn, 1993 the Office of the Suffolk County District Attorney obtained an indictment against remaining Respondents Mt. Hope and Petrosky, based at least in part upon the same activities that are at issue in this consolidated administrative action. That matter was pending, pre-trial, at the time this consolidated hearing was held. 16. Since autumn, 1993, Respondents have ceased all production of asphalt at the facility. A. Violation of ECL Articles 19 and 27, and 6 NYCRR Part 201 and 360 17. Respondent Mt. Hope maintained logbooks at the facility, contemporaneous records that identify the type of material received by the facility, the date received, origin of the material (the site the material came from), the NYSDEC Spill Number, the quantity of material received on the dates ude naa 33a Appendix C indicated, cumulative total material received, invoice number and date billed. 18. On at least 36 occasions from on or about November 13, 1991 to on or about September 17, 1992, Respondent Mt. Hope received and/or processed contaminated soil from sites located in the State of New Jersey. (See Hearing Report Appendix A). 19. For the 36 occasions from on or about November 13, 1991 to on or about September 17, 1992 that, Respondent Mt. Hope received and/or processed contaminated soil from sites located in the State of New Jersey, Mt. Hope’s logbooks contain seven digit numbers similar to Departmental spill numbers, under the column heading, “NYSDEC Spill No.”. Further, Respondent Mt. Hope’s files also contain seven digit numbers similar to Departmental spill numbers. 20. The New York State Department of Environmental Conservation does not issue spill numbers for spills occurring outside the State of New York. None of the 36 New Jersey sites had a NYSDEC-assigned spill number. 21. The New Jersey Department of Environmental Protection has never issued seven digit spill numbers. Instead, since 1991, spill numbers issued by that Department contain only ten, eleven or twelve digits. 22. The New Jersey Department of Environmental Protection does not assign a New Jersey case number to all sites where petroleum-contaminated soil is generated. Approval of the New Jersey Department of Environmental Protection is required prior to any transportation of petroleum-contaminated 34a Appendix C soil to locations outside the State of New Jersey. Further, the office within the New Jersey Department of Environmental Protection that oversees the disposal of petroleum-contaminated soil outside of the State of New Jersey, does not require the assignment of a New Jersey DEP case number. 23. No Staff member authorized or otherwise allowed Respondent Mt. Hope to receive, store or process petroleum- contaminated soil from New Jersey. 24. No permit variance had been granted to Respondent Mt. Hope and no permit modification had been issued to Respondent Mt. Hope to authorize receipt, storage or processing of petroleum-contaminated soil from New Jersey. 25. The analytical reports comprising pre-marked Exhibits 169-198 (excluding Exhibits 172 and 198), were maintained as business records in the offices of Respondent Mt. Hope and had been removed from those offices pursuant to search warrant by the Suffolk County District Attorney. __ 26. The analytical reports comprising Exhibits 163 through 198 (except for Exhibits 169, 171, 180 and 182), contained laboratory analyses which indicated that the respective material was non-hazardous pursuant to the Quality Assurance/Quality Control (QA/QC) provisions of Mt. Hopes Permit to Construct EP2. Further, all the those analyses were conducted by a New York certified laboratory. 27. Regarding Exhibits 169, 171, 180 and 182, the original reports maintained at Respondent Mt. Hope’s offices had contained laboratory analyses, but copies which Staff received from the District Attorney’s Office by Staff lacked those analyses. 35a Appendix C 28. Exhibits 212 A, B and C, are three quarterly reports submitted by Respondent Mt. Hope to Department Staff. These quarterly reports do not contain any entries indicating that Respondent Mt. Hope received and processed petroleum- contaminated soil from New Jersey on 36 occasions between November 1991 and September 1992. 29. However, Respondent Mt. Hope’s log books do contain entries indicating that Mt. Hope received and processed petroleum-contaminated soil from New Jersey on 36 occasions between November 1991 and September 1992. B. Violation of Navigation Law Article 12, ECL Article ]7 and 6 NYCRR Parts 360 and 613 The Suffolk County Department of Health Services Soil Samples 30. Pursuant to a search warrant obtained by the office of the Suffolk County District Attorney, members of the Suffolk County Department of Health Services obtained soil samples at the facility on September 16, 1993. 31. It was raining intermittently on September 16, 1993 during the soil sample collection process. 32. A back-hoe used for excavation of sampling points was decontaminated at each sample point. 33. Many photographs were taken to document the location of each sample point. 34. Although an asphalt surface was penetrated to obtain samples in the “parking lot” area of the facility, no asphalt particles were collected in the sample bottles. 36a Appendix C 35. The SCDOHS Sanitarian actually collecting soil samples wore two pair of gloves, and replaced the outer gloves after completing sampling collection at each sample point. 36. After a SCDOHS Sanitarian obtained a sample, it was placed in a sample bottle. A new bottle was used to collect each soil sample. 37. The sample bottle was then sealed and the exterior was cleaned, if necessary. The Sanitarian then handed the sample directly to SCDOHS laboratory personnel, who preserved each sample in its own plastic bag, in a cooler. 38. One of the two SCDOHS laboratory personnel present on site were in physical custody of the samples, during the entire day of sample collection. After sample collection was completed at the site, SCDOHS laboratory personnel brought the sample cooler to the SCDOHS van. | 39. Inside the van, the laboratory staff performed a final count of samples taken. Then, the laboratory personnel transported the sample cooler, with samples, to the county laboratory. 40. Laboratory receipt of the samples was documented by entries in a logbook. Each sample was assigned a laboratory number, sealed in plastic and kept in a locked refrigerator, located in a locked “evidence room” at the laboratory. 41. SCDOHS personnel completed “Chain of Custody” forms detailing exactly who had custody of the samples throughout each day. 37a Appendix C 42. Analytical results of five of the soil samples obtained by SCDOHS at the facility on September 16, 1993 show high levels of petroleum constituents in certain locations. The five SCDOHS samples are identified as 6MF, 7MFI, 18MF, 20MF and 21MF. 43. SCDOHS Chemist Amendola used the federal Environmental Protection Agency “8240” methodology to analyze the soil samples for presence of petroleum constituents. 44. Amendola employed three variations from the EPA 8240 methodology when analyzing the samples. He used a capillary column, rather than a packed column; he calculated the analysis using external calibration instead of internal calibration; and lastly, he did not heat the samples to 40 degrees centigrade. 45. The variation of use of a capillary column rather than a packed column under the EPA 8240 methodology was specifically approved by the New York State Department of Health as an acceptable variation from the EPA recommended methodology. 46. Regarding his use of external calibration, Amendola recalculated the analysis of four of the five Samples using internal calibration, at a later date. The results using internal calibration indicate a higher level of contamination of petroleum constituents in all four samples, than did the external calibration analysis method. 47. Heating the samples to 40 degrees centigrade would have produced greater violation of the sample, and would have yielded slightly higher analysis results than was obtained absent heating of the soil samples. 38a Appendix C 48. Some sample analysis results are stamped “Some surrogate standard values are below acceptable levels”. 49. Staff submitted no evidence to show that any testing of groundwater indicated a contravention of Departmental water quality standards. 50. Neither Respondent Mt. Hope nor Respondent Petrosky ever reported a petroleum discharge to the Department. 51. Once Staff learned of the petroleum discharge at the facility, Gomez prepared a spill report for the facility and obtained a spill number from the Department’s spill hotline. Respondent Petrosky 52. Respondent Petrosky regularly held himself out to Staff as the individual to be contacted in matters involving Mt. Hope Asphalt Corp. Also, Petrosky maintained an office at Mt. Hope’s offices located at the facility, he was regularly on-site, he regularly met with Department personnel during Staff's site visits to the Mt. Hope facility, and he regularly responded to Staff's concerns. For example, it was Petrosky that responded to Staff's concerns about dust at the facility by having the road between the offices and the facility paved. 53. Respondent Petrosky certified Mt. Hope documents, stating that the petroleum-contaminated soil indicated therein was recycled and made into road paving materials. 54. Respondent Petrosky, in his capacity as President of Respondent Mt. Hope, signed the two Consent Orders concerning the facility. 39a Appendix C 55. Respondent Petrosky also regularly attended virtually all meetings with Department Staff at the Department’s Region 1 Offices and at the Mt. Hope Asphalt Corp. facility, on behalf of Mt. Hope. Ill. The Permit Action 56. By letter dated September 15, 1993 Staff issued to Respondent Mt. Hope, a Notice of Permit Denial (regarding Mount Hope’s application #1-4722-01052/00003-0, [Certificate to Operate Emission Point No.00002, an afterburner)), Notice of Intent to Revoke Permit (Permit to Construct #1-4722-01052/ 00004-0 [Emission Point No. 00004, rehydration chamber]), and Revocation of Beneficial Use Determination (regarding the Beneficial Use Determination issued to Mt. Hope on August 9, 1991; (hereinafter, “the combined notice”, hereinafter referred to as “the permit” action]). 57. The combined notice letter identifies five factors upon which Staff bases its notice: (1) violation of Permit to Construct (EP2) permit condition requiring only use of petroleum- contaminated soil from sites identified by a Departmental spill number on 39 occasions; (2) violation of Permit to Construct permit condition (EP2 afterburner) requiring maintenance and quarterly submittal of records to Staff, which submittals failed to identify 39 instances of receipt of contaminated soil at the facility; (3) that commission of the two above referenced violations rendered the Beneficial Use 40a Appendix C Determination invalid on those dates, and therefore constituted operation without a solid waste management facility permit on those dates, in violations of ECL Article 27 and 6 NYCRR 360 (“Part 360”); (4) failure to comply with audit requirements imposed by the January 14, 1993 Consent Order; and (S) Respondents’ history of non-compliance, including a July 18, 1991 Consent Order; the January 14, 1993 Consent Order; and six criminal simplified information issued to L.L.H. Recycled Aggregates (a company which shares ownership and operations with Respondent Mt. Hope) . The Falsified Analytical Report and Signature 58. Richard Parish has been employed as President of Impact Environmental for approximately five years. 59. In mid-1991, Impact Environmental was retained as a consultant to Disposal Technologies. 60. Impact Environmental, in its consultant capacity to Disposal Technologies, performed sampling on behalf of Mt. Hope, and sent the samples to appropriate laboratories for analysis. Upon receiving the analysis from the laboratory, the analysis would be forwarded to Disnosal Technologies under Parish’s cover letter. UES PSO ey NPR ast 4la Appendix C 61. Regarding the Ideal Aluminum site, 100 West 7th Street, Bayonne, New Jersey, 116.71 tons of material was received by Respondent Mt. Hope on December 24, 1991. 62. An analytical report for this material exists in the form of a letter dated December 31, 1991, addressed from Parish on behalf of Impact Environmental to Disposal Technologies at the Mt. Hope facility address. 63. Exhibit 170, regarding the Ideal Aluminum Site, is comprised of copies of documentation maintained by Respondent Mt. Hope at its facility. The original documents were obtained pursuant to search warrant by the office of the Suffolk County District Attorney, 64. Information reported in the Ideal Aluminum analytical report/letter states, “[b]ased on our investigation of 12-24-9] the contaminated material is non-hazardous pursuant to the standards promulgated by the New York State Department of Environmental Conservation. All informaticz reported by the client was confirmed by either Freedom of Information Legislation and/or inspection.” 65. The Ideal Aluminum analytical report contains what purports to be Parish’s signature. In fact, it is not his signature. Further, the letter was not prepared by Parish or by Parish’s office, Impact Environmental. 66. The Ideal Aluminum analytical report and Signature are not genuine, but were falsified. It is impossible to know whether the material described therein, received by Respondent Mt. Hope, was truly non-hazardous petroleum-contaminated soil. 42a Appendix C Respondent Mt. Hope’s History of Consent Orders 67. On May 28, 1991 Respondent Mt. Hope-entered into a Consent order with the Department to resolve violations of ECL Article 19 and 6 NYCRR Part 201, for commencing construction to install the afterburner at the facility as an air pollution control device, without the required Permit to Construct. Under the Consent Order, signed by Respondent Frank Petrosky in his capacity as President of Mt. Hope, a $500.00 penalty was imposed upon Respondent Mt. Hope. (Consent Order R1-4570-91-05). 68. On July 18, 1991 Respondent Mt. Hope entered into a Consent Order with the Department regarding Mt. Hope’s asphalt manufacturing plant located in Flushing, Queens, New York. That Consent Order resolved violations of ECL Articles 15 and 25, and 6 NYCRR Part 661, by Respondent Mt. Hope for allowing stone sand screenings to enter regulated navigable waters and tidal wetlands without the required permits. Under the Consent Order, signed by Mt. Hope’s Treasurer, Paul Abrams, a $10,000.00 penalty and an order requiring remediation was imposed upon Respondent Mt. Hope. (Consent Order #R2-3559-91-03). 69. On January 14, 1993 Respondent Mt. Hope entered into a Consent Order with the Department to resolve certain violations at the facility and to assure continued authority to operate EP2 (Consent Order 1 1-5074-92-06). The January, 1993 Consent order required construction of a rehydration chamber, EP4. This Consent Order also required dissolution of the Mt. Hope - Accardi/Disposal Technologies relationship. 70. The January, 1993 Consent Order also required Mt. Hope to dissolve the Mt. Hope - Accardi /Disposal Technologies 43a Appendix C relationship (Consent Order. Schedule, A, Section IV) , and to comply with detailed financial auditing requirements (Consent Order Schedule A, Section V), including an affidavit from a Certified Public Accountant certifying that it performed an investigation of Respondent Mt. Hope’s records regarding Thomas Accardi’s relationship to Mt. Hope. Consent Order 1-5074-92-06. 71. On or about February 16, 1993, Mt. Hope submitted an application for a Permit to Construct/Certificate to Operate a Rehydration Chamber, EP4. On July 22, 1993, the Department issued the Permit to Construct and Test a Rehydration Chamber, EP4 (permit issued July 19, 1993, indicating an expiration date of July 18, 1994). 72. On November 29, 1990, the Department’s then- Director of the Division of Solid Waste issued a memorandum for intra-agency purposes, to the Department Staff’s Regional Solid Waste Engineers, regarding beneficial use of petroleum- contaminated waste soil as an aggregate in asphalt production. Conclusions of Law 1. Respondents are both “persons” within the meaning of ECL §19-0107. 2. Thomas Accardi. and Disposal Technologies, Inc., were agents for Respondent Mt. Hope. 3. Respondents did not operate the EP2 afterburner, an air contamination source, in accordance with Respondent Mt. Hope’s August 7, 1991 Permit to Construct because Respondents regularly violated Special Condition (4)(B) of the permit. 44a Appendix C 4. Respondents’ affirmative defense that Special Condition (4)(B) only applied to stack tests is without merit. The limitations and requirements set forth in the Permit to Construct EP2, Special Condition (4})(B), applied to Respondents’ operation of the facility throughout the period during which the permit was valid. 5. “Processing” of petroleum-contaminated soil, as that term is used in Permit to Construct EP2, Special Condition (4) (B), includes “receipt” of petroleum-contaminated soil for purposes of processing. 6. Each “Job” (or site) identified in the Complaint is taken to represent an allegation of one incident of receipt of petroleum-contaminated soil, even though the record establishes that for at least some of the proven violations, Respondent Mt. Hope did, in fact, receive a number of shipments of contaminated soil over a period of days or weeks for particular jobs. 7. For the 36 New Jersey job sites identified in Exhibits 163 through 198, petroleum-contaminated soil from sites located in the State of New Jersey was received and processed by Respondent Mt. rope. 8. For the 36 New Jersey sites identified in Exhibits 163 through 198, the spill numbers used by Respondents in their logbooks and files are fabricated spill numbers. Those spill numbers were not issued by the New Jersey Department of Environmenial Protection or by the Department. 9. Respondents fabricated these spill numbers to create the appearance that Respondents were operating within the 45a Appendix C authority of Respondent Mt. Hope’s Permit to Construct EP2 and BUD. 10. Respondent Mt. Hope intentionally omitted entries from three quarterly reports (August 15, 1991 to March 31, 1992; April 1, 1992 to June 30, 1992: and July 1, 1992 to September 30, 1992, respectively) regarding petroleum- contaminated soil it received and processed from the 36 New Jersey sites. Respondent Mt. Hope did so because it knew that such activities exceeded the scope of authority of its Permit to Construct EP2 and BUD. Respondents thereby violated Special Permit Condition (5)(B), and consequently 6 NYCRR §201.2(d), on three occasions. 11. Carlson Associates is not applicable regarding computation of monetary penalty in the present action. However, the provisions of ECL Article 71 are relevant and do provide for a continuing violation of ECL Article 27. ECL §71- 2703(1). Staff has properly asserted a continuing violation of ECL §27-0707 and 6 NYCRR 360-1.7, for operating a solid waste management facility without a permit from November 17, 1991 (the first date of receipt of soil from a New Jersey site) to September 17, 1992 (the last date of receipt of soil from a New Jersey site). Applicability of the Beneficial Use Determination 12. Respondents’ receipt storage and processing of petroleum-contaminated soil from sites in New Jersey was not authorized by the Permit to Construct EP2. 13. Compliance with the Permit to Construct EP2 was a condition upon which the Beneficial] Use Determination was 46a Appendix C premised. Therefore, Respondents’ receipt. Storage and processing of petroleum-contaminated soil from sites in New Jersey was not within the scope of authority of the Beneficial Use Determination. 14. A permit issued pursuant to 6 NYCRR Part 360 is required for these activities. 15. Because Respondent Mt. Hope acted outside the scope of authority of the BUD, Mt. Hope operated a solid waste management facility without a permit, in violation of 6 NYCRR §3601.7(a)(1)(ii). Respondent Mt. Hope’s receipt, storage and processing of petroleum-contaminated soil from sites in the State of New Jersey, absent a solid waste management facility permit constituted operation of a solid waste management facility without a permit, a violation of 6 NYCRR §360-1.7 (-\ LI 9LI ELTIZ ~—_, [BUONeUID;UT ysaNd,, 61 b 8 81 LLI Ip'9L «Sionpolg tyoedy,, 81 b 8 91 SLI LVElE «1®180d “$'N,, el bp 8 SI vLI Z0°102 .ZUIG SOpso19/,,, ZI bp 8 el ZLI SO'rbZ APQIYA Pd, ¢ b +8 v1 ELI 87°8L juled xnq,, € b +8 ‘ON oO}yeIOUSt ) ' v xipuoddy Fix § jMouly TOVeISUSH SUT] sey | TaN SUO} LP’ 8016 = [0g Aosio¢ MON [BIOL 672 00°07 Sourpoeyy Burjdeyjg,, 881 8Z 76°71 SUIPIPM *S'N,, L8I LZ 18°vZ SIOSINID ITV, 981 97 IS ‘tp Sapwodoig W 'I,, CsI 4 €8 Ad[axJ9g JO UMOL,, rs vZ Ol eg uo}suluey jo ysnol0g,, ESI €Z SSol SSoldxgq pueloye’T,, 781 “ON JO}JeISUSH Vv xipuoddy # yIQIyxy jyunOWYy IO}eIOUST SUT] ddeg yiqryx7 suo} pe'vE9'E = TIWLOL wQiyxy snuq ‘og 6£ 861 €8SpZ .Soliouorg [eusT,, 4 LI 98 LE 961 L8°6P . SO1g 19qQe,,, El LI 98 0 SE L61 76'6£ Yopury ‘A}95,, Z SI 98 3 Ra LE 961 €L'6€P . SO1g J9qB,1,, 4 ¢ 98 a 9€ C61 C7 8E «P[2BIBD ‘Ay9N,, LI ¢ 98 x SE r6l 6€°SO9] ,, WueYg zopuRs,, 6 ¢ 98 = 1€ 061 9¢°9¢ .A9A0Q ‘AN95,, O¢ € 98 ve £61 SE88 —_., U[FA2T[9q ANOD,, 97 € 98 €€ 761 7L°SZ .Playuleld ‘N “ANeD,, Ol € 98 Ze 161 CS'EL .UOIul) ‘A}95D,, 9 € 98 O¢ 681 00°06 ufN ‘ouuokeg 97 Z 98 0¢ 681 LVIE ‘uo1e1g A}9D,, vl Z 98 "ON JOjelouory Vv xipuoddy # yiqiyxg junoWYy TO}eIoUor) oul] odeg yiqiyxg 124a APPENDIX D — ORDER OF THE STATE OF NEW YORK COURT OF APPEALS DATED JULY 9, 1998 STATE OF NEW YORK, COURT OF APPEALS At a session of the Court, held at Court of Appeals Hall in the City of Albany on the ninth day of July 1998 Present, HON. JUDITH S. KAYE, Chief Judge, presiding. 2-10 Mo. No. 632 In the Matter of Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., et al., &c. of the Estate of Frank Petrosky, Appellants, v. Michael Zagata, &c., et al., Respondents. A motion for leave to appeal to the Court of Appeals in the above cause having heretofore been made upon the part of the appellants herein and papers having been submitted thereon and due deliberation having been thereupon had, it is ORDERED, that the said motion be and the same hereby is denied with one hundred dollars costs and necessary reproduction disbursements. s/ Stuart M. Cohen Stuart M. Cohen rs Clerk of the Court --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0992%3A2. Public record. Not legal advice.