STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of Violations of Article 27 of the Environmental Conservation Law and 6 Part 360, by: ORDER ON CONSENT Case No. R3-20160119-6 City of Mt. Vernon, Respondent(s). (Westchester County) WHEREAS: 1. The Department of Environmental Conservation or ?the Department?) is a Department of the State of New York with jurisdiction to enforce the environmental laws of the State pursuant to Environmental Conservation Law 3-03-02. 2. The Department is responsible for the administration and enforcement of laws, regulations and management of Solid Waste pursuant to ECL Article 27 and 6 Part 360. 3. Respondent, City of Mt. Vernon, has of?ces located City Hall, 1 Roosevelt Square, Mt. Vernon, New York 10550, and owns property located at E. Sanford Boulevard and Garden Avenue, Mt. Vernon, New York, which is commonly known as Memorial Field (the 4. Department staff observed that approximately 12,000 cubic yards of Construction and Demolition debris had been disposed of on the Site during inspections of the Site on January 12, 2015, November 3, 2015, November 24, 2015 and January 6, 2016. 5. On January 12, 2015 "and November 3, 2015, Department staff took samples of the material disposed of on the Site, and determined that the samples contained coal, ash, and slag. 6. Respondent does not have a 6 Part 360 Solid Waste Management Facility permit from the Department authorizing the disposal of 'Debris on the Site. 7. On November 20, 201 the Department issued a Notice of Violation documenting violations at the Site. Speci?cally, 6 exempts certain sites from obtaining a solid waste management facility permit from the Department if, among other requirements, only recognizable uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock are disposed of at the site. Department staff sampling con?rmed, that the debris contained coal, ash and slag, and therefore, the debris did not meet theexemption criteria contained in 6 Accordingly, Respondent violated 6 which prohibits any person from Operating or constructing a solid waste management facility except in accordance with a valid permit. Respondent admits these violations and af?rmatively waives the right to a public hearing in this matter in the manner provided by 6 Part 622, consents to the issuing and entering of this Order, agrees to be bound by the terms, provisions and conditions of this Order, including the Compliance Schedule attached hereto, and waives the right to a public hearing in any matter that may arise under the terms of this Order. NOW, having considered this matter and being duly advised, it is ORDERED that: I. Civil Penalty. Respondent shall be liable to pay a civil penalty in the amount of Fifty Thousand Dollars, which is payable to the Department upon Respondent?s return of an executed copy of this Order to the Department. The DEC case number appearing on the ?rst page of this Order shall be endorsed on the face of the check. The civil penalty shall be paid by check, bearing the signature of Respondent, made payable to the ?Department of Environmental Conservation? and forwarded to the Regional Attorney, New York State Department of Environmental Conservation, Region 3, 21 South Putt Corners Road, New Paltz, New York 12561. I II. Schedule of Compliance. Respondent shall strictly comply with the terms of this Order and with the attached Schedule of Compliance, including any report(s), plan(s), proposal(s) and other submissions made pursuant thereto. The Schedule of Compliance and all such submissions are hereby deemed incorporated into this Order, upon approval by the Department if such approval is required, and shall be fully enforceable as part of this Order. Notice of Noncompliance. In the event that the Department determines, in the Department's sole discretion, that the Respondent has failed to timely and fully- comply with any provision of this Order, the Department may serve upon the Respondent a notice of noncompliance setting forth the nature of the violation(s). Service of such notice may be by personal service or by certi?ed mail return receipt requested (restricted delivery not required) at the Respondents? address as Speci?ed in Paragraph 3 of this Order, or, if such service is refused or cannot be completed, by ordinary mail. IV. Full Settlement. Until fully remediated in accordance with this Order, all violations described above shall be considered continuing violations. The Department shall not institute any action or proceeding for penalties or other relief for the violations described above other than those actions and penalties set forth in this Order, for so long as Respondent remains in compliance with this Order. Any failure by Respondent to comply fully with the terms of this Order may subject the . Respondent to further enforcement action for the violations described above. Compliance with this Order shall not excuse nor be a defense to charges of any violations of the ECL or any regulation or permit issued thereunder, which may occur subsequent to the date of this Order. V. Submission. All reports and submissions required in this Consent Order shall be submitted to the Department, via US. Mail, as follows: a hardcopy original and an electronic copy in .pdf format on Compact Disc to: David Pollock, Division of Materials Management New York State Department of Environmental Conservation, Region Three 21 South Putt Corners Road New Paltz, New York 12561 Re: Case No. R3-20160119-6 and an electronic copy in .pdf format on Compact Disc to the: Regional Attorney Of?ce of General Counsel New York State Department of Environmental Conservation, Region Three 21 South Putt Corners Road New Paltz, New York 12561 Re: Case No. Respondent shall be responsible for the content of any submissions made pursuant to this Order and shall certify in writing to the Department that such submission complies with the requirements set forth in this Order. Submission of any material containing assertions of fact shall be considered an af?rmative representation by Respondent of the truth of such assertions. Respondent shall be in violation of this Order if any submission is of such poor quality that it . does not constitute a good faith effort to comply with the provisions of this Order. . VI. Review of Submitted Remedial Plans and Proposals. After review of any remedial plan or proposal required by this Order and its Schedule of Compliance, the Department shall notify Respondent, in writing, of its approval or disapproval of the submission. If the Department approves the submission, Respondent shall implement it in accordance with its schedule and terms, as approved. If the Department disapproves the submission, the Department shall provide to Respondent written notice of its disapproval, specifying with reasonable particularity the grounds for disapproval. Within 30 (thirty) days after Respondent receives written notice of disapproval, Respondent shall submit a revised submission which fully responds to each of the Department's speci?ed grounds for disapproval. After the Department's receipt of Respondent's revised submission, the Department shall notify Respondent, in writing, of its approval or disapproval. If the Department approves the revised submission, Respondent shall implement it in accordance with its schedule and terms, as approved. If the revised submission is not approvable as submitted, the Department, at its option, may disapprove it or may approve it on condition that Respondent accept such modi?cations as may be speci?ed by DEC to make it approvable. If the Respondent does not accept such modifications, the revised submission will be disapproved. If the Department disapproves the revised submission, the Respondent shall be in violation of this Order. Upon Department approval, a submission or revised submission shall be deemed incorporated into this Order. VII. Notice of Work. Respondent shall provide notice to the Department of any excavating, drilling, sampling, construction or start-up of equipment to be conducted pursuant to the terms of this Order, if any, at least ?ve (5) working days in advance of such activities. Inspections. I For the purpose of insuring compliance with this Order, and with applicable provisions of the ECL and regulations promulgated thereunder, representatives of this Department shall be permitted access to the facility and to relevantrecOrds during reasonable hours to inspect and! or perform such tests which the Department deems appropriate to determine the status of Respondent's compliance. IX. Conveyance. In the event that Respondent proposes to convey the whole or-any part of its ownership interest in the Facility, Respondent shall, not less than 30 days prior to the consummation of such proposed conveyance, notify the Department in writing of the identity of the transferee and of the 5 nature and date of the proposed conveyance. In advance of such proposed conveyance, Respondent shall notify the transferee in writing, with a copy to the Department, of the applicability of this Order. X. Other Approvals. Respondent shall be obligated to obtain whatever permits, easements, rights of entry, approvals or authorizations may be necessary in order to carry out its-obligations under this Order. This Order shall not relieve the Respondent of the obligation to comply with any other laws, rules or regulations of the State of New York or any other governmental authority which are applicable to Respondent's activities, nor preclude or limit such enforcement action as may be authorized by law for any such violation. XI. Other Remedies; Natural Resource Damages. Nothing contained in this Order shall be construed as barring, diminishing, adjudicating or in any way affecting (1) any legal, administrative or equitable rights or claims, actions, suits, causes of action or demands whatsoever that the Department may have against anyone other than Respondent; (2) the Department's right to enforce, administratively or at law or in equity, the terms, provisions and conditions of this Order against Respondent, its directors, of?cers, employees, servants, agents, successors and assigns in the event that Respondent shall be in breach of the provisions hereof; (3) the Department's right to bring any action, administratively or at law or in equity against Respondent, its directors, of?cers, employees, servants, agents, successors and assigns which the Department could otherwise maintain with. respect to areas or resources that may have been affected or contaminated as a result of the release or migration of wastes from the site or from areas in the vicinity of the site, or to require that Respondent take such additional measures as may be necessary for the protection of public health or the environment, including interim remedial measures; (4) the Department's right to commence any action or proceeding relating to or arising out of any disposal of hazardous wastes at the site, as those wastes are de?ned by applicable regulation; or (S) the Respondent?s right to challenge any such action by the Department, whether by administrative hearing or otherwise, to the extent otherwise permitted by law. Nothing contained in this Order shall be construed as barring, diminishing, adjudicating or in any way affecting any of the Department?s rights or authorities, including the right to recover natural resource damages, against any party, including Respondent. I This Order shall not be construed to prohibit the Commissioner or the Commissioner?s duly authorized representative from exercising any summary abatement powers, either at common law or as granted pursuant to statute or regulation. XII. Indemni?cation. Respondent or any successors, assigns or transferees, shall indemnify and hold harmless the Department, the State of New York, and their representatives and employees harmless for all claims, suits, actions, damages and costs of every name and description arising out of or resulting from the ful?llment or attempted ful?llment of this Order by Respondent, its directors, of?cers, employees, servants, agents, successors or assigns. Force Majeure. Respondent shall not be in default of compliance with this Order to the extent that Respondent may be unable to comply with any provision of this Order because of the action of a national or local government body or court, an act of God, War, strike, riot or catastrophe as to any of which the negligence or willful misconduct on the part of Respondent was not a proximate cause; provided, however, that Respondent shall use its best efforts to comply. Respondent shall provide written notice to the Department immediately upon obtaining knowledge of such event. In addition, Respondent shall, within twenty?one days of such event, provide written request to the Department for an appropriate extension or modi?cation to this Order, along with documentation evidencing entitlement to relief herein. Relief under this clause shall not be available to Respondent, with regard to a particular event, if Respondent fails to provide timely notice of such event. The Respondent shall have the burden of proving entitlement to relief under this clause, by clear and convincing evidence. XIV. Modi?cation. This Order may not be modi?ed except in a writing executed by the DEC Commissioner or the DEC Commissioner?s authorized representative. XV. Default. The failure of Respondent to comply fully and in timely fashion with any provision of this Order shall constitute a default and a failure to perform. an obligation under this Order and under the ECL, and may constitute suf?cient grounds for revocation pursuant to 6 621.13 of any permit, license, certification or approval issued to the Respondent by the Department. XVI. Entire Agreement. The provisions hereof shall constitute the complete and entire Order between Respondent and the Department concerning the violations set forth above. No terms, conditions, understandings or agreements purporting to modify or vary the terms hereof shall be binding unless made in writing pursuant to Paragraph XIV hereof. No informal advice, guidance, suggestions or comments by the Department regarding reports, proposals, plans, speci?cations, schedules or any other writing submitted by Respondent shall be construed as relieving Respondent of its obligations to obtain such formal approvals as may be required by this Order. XVII. Binding Effect. This Order shall be deemed to bind the Respondent, its of?cers, directors, agents, employees, contractors, successors and assigns, and all persons, ?rms and corporations acting under or for Respondent, including, without limitation, any subsequent operator of the Facility who may carry on activities now- conducted by Respondent at the Facility, and any successor in title to the Facility Or any interest therein. Respondent shall provide a copy of this Order (including any submissions incorporated herein) to any contractor or subcontractor hired to perform work required under this Order, and shall require compliance with this Order as a term of any contract for performance of work under this Order. Respondent shall nonetheless be responsible for ensuring that all work performed under this Order is in compliance with the terms of the Order. Effective Date. This Order shall not become effective until it is signed by the Regional Director on behalf of the Commissioner. Dated: New Paltz, New York 2016 BASIL SEGGOS Acting Commissioner Department of Environmental Conservation By: MARTIN D. BRAND Regional Director, Region 3 Department of Environmental Conservation This Order on Consent has been reviewed and approved by the Regional Attorney as to form. By: KELLY R. TURTURRO Regional Attorney - 10 CONSENT .BY RESPONDENT Respondent hereby consents to the issuance and entry of this Order without further notice, waives its right to a hearing in this matter, and agrees to be bound by the terms, conditions and provisions of this Order. The undersigned represents and af?rms that they have the legal authority to bind Respondent(s) to the terms and conditions of this Order. City of Mt. Vernon By: Title: ACKNOWLEDGMENT On this day of in the year 2016, before me, the undersigned, personally appeared - personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrurrient and acknowledged to me that he/she/they executed the same in his/her/their capacity?es) as shown in the instrument, and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individua1(s) acted, executed the instrument. 3 . Notary Public 11 Schedule of Compliance for Order on Consent Respondent: City of Mt. Vernon Site or Facility: E. Sanford Boulevard and Garden Avenue, Mt. Vernon, New York DEC Case No.: RESPONDENT IS REQUIRED TO SELF-CERTIFY TIMELY COMPLETION OF EACH OF THE ACTIVITIES REQUIRED BY THIS SCHEDULE.- 1. Respondent(s) shall immediately cease and desist from any and all future violations of the New York State Environmental Conservation Law and the rules and regulations enacted pursuant thereto. 2. Self-certification: Respondent(s) shall submit to DEC, within fifteen (15) days of each milestone date set forth in this Schedule of Compliance, a signed statement certifying that the work required was completed by that date, and that the work was done in the manner required by this Order. Submission of the required certi?cation shall be considered an af?rmative representation by the Respondent of the truth of its contents. Any false statement made therein shall be punishable pursuant to Section 210.45 of the Penal Law, and as may be otherwise authorized by law. Failure to submit a required certi?cation by the due date shall be a violation of this Order, and shall establish a legal presumption that Respondent(s) has failed to comply with that requirement of the Schedule. All technical submittals to the Department required under this Order shall be made by Respondent(s) as follows: All submittals, which shall include a hardcopy original and an electronic copy in .pdf format on Compact Disc shall be submitted to the Department, via US. Mail, in accordance with Section of this Order. 12 Schedule of Compliance for Order on Consent Continued Respondent: City of Mt. Vernon Site or Facility: E. Sanford Boulevard and Garden Avenue, Mt. Vernon, New York DEC Case No.: R3-20160119-6 3. Remedial Activities and Milestones: Respondent(s) shall timely perform the activities set forth below in a good and workmanlike manner and supply all required labor, equipment and materials at Respondent's own cost and expense: A. Within 30 days of the Effective Date of this Order: Respondent shall submit records to the Department regarding the fill brought to the Site. This information shall include but not be limited to: date, time, and quantity received per truck, hauler name and address (including drivers name, if available); source of each load of material (address and owner name if available); any fees collected by the operator(s) or city for disposal on the Site; a copy of the agreement between the city and the operator(s); names of the operator(s) and the timeframe that they were responsible for activities at the Site; records of any material rejected from the Site including the destination?of such material; and a summary of the days the Site received waste. And Respondent shall implement either or below: B. Within 90 days of the Effective Date of this Order: Respondent shall remove all Debris that does not meet the exemption criteria contained in 6 360-7.l from the Site, and shall dispose of such Debris at a NYS DEC permitted Part 360 solid waste management facility that is authorized to take municipal solid waste. OR C. Within 90 days of the Effective Date of this Order: Respondent shall conduct a site investigation in an attempt to show that the ?ll material will not impact the environment, including groundwater, and will not impact the health and safety of the public, in accordance with the following requirements: i. Within 30 days of the Effective Date of this Order: Respondent shall submit to the Department for approval, a Site Investigation Plan in accordance with the requirements of the Department's Standard Operating Procedure for Waste Composition Analysis and Outline of Requirements for Investigation and Remediation of Unauthorized Debris Disposal Sites. The Site investigation Plan shall be certi?ed, including a statement of certi?cation, by a professional engineer licensed in the state of New York and shall also include a 13 schedule of implementation of the Site Investigation Plan. Respondent shall commence implementation of the Site Investigation Plan within 30 days of the Department?s approval. ii. Within 30 days of the completion of the Site Investigation Plan: Respondent shall submit a Site Remediation Plan to the Department for approval. The Site Remediation Plan shall include the results of the site investigation and a plan for addressing the Debris on the Site including but not limited to: full or partial removal; constructing a barrier layer; ground water monitoring; and a post-closure monitoring and maintenance plan. If Respondent proposes to permanently leave any Debris on the Site, Respondent shall obtain approval of the Westchester County Department of Health. All municipal solid?waste, industrial and commercial waste must be removed from the Site and disposed of at a NYS DEC permitted Part 360 solid waste management facility. Within 90 days of the Department?s approval of the Site Remediation Plan: Respondent shall complete implementation of the Department approved Site Remediation Plan. iv. Within 30 days of the completion of Site Remediation Plan: Respondent shall submit to the Department, a completion certi?cation signed and sealed by a professional engineer licensed in the state of New York and include a statement of certi?cation. I D. By December 31, 2016: . Respondent shall either have removed all Debris that does not meet the exemption criteria contained in 6 360-7.] from the Site in accordance with Section 3.A of this Schedule of Compliance or completed implementation of the Site Remediation Plan in accordance with Section 3.B of this Schedule of Compliance. 14