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111 Marina Cleaners - Order, February 7, 2001

WHEREAS:

  1. Pursuant to Part 622.12 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation ("DEC") duly served a motion for order without hearing and complaint upon the Respondent, 111 Marinas Cleaners and Tailors on or about November 16, 2000. Said motion was supported by the affirmation of assistant regional attorney John F. Byrne and the affidavits of DEC staff Rasheed Carter and Radcliffe Lee. Respondent replied to said motion by letter of attorney Marina Chimerine, counsel for the respondent, dated November 30, 2000.
  2. The Complaint asserted causes of action alleging violations of Environmental Conservation Law ("ECL") articles 19 and 71 and 6 NYCRR parts 201 and 232.

    Staff documents by affirmation of John F. Byrne that:
    1. Respondent owns and operates a dry cleaning business at 111 4th Avenue, New York, New York;
    2. Respondent's business is operated in a mixed-use facility as defined in 6 NYCRR 232.2(b) and 232.2(b)(8);
    3. Respondent's business does not have a vapor barrier or exhaust system in place although required to do so by 6 NYCRR 232.5(a)(12)(iv);
    4. Respondent has not maintained the records directed under 6 NYCRR 232.12(a)(1)-(7), 232.12(c)(1)-(4), 232.12(d);
    5. Respondent has not maintained the checklist required under 6 NYCRR 232.7(a);
    6. Respondent has not maintained the checklist required under 6 NYCRR 32.8(b)&(c).
  3. A copy of the motion and supporting papers and the Respondent's reply letter of November 30, 2000 were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge Molly T. Mc Bride ("ALJ"). Submitted herewith is a copy of the Ruling of the ALJ and I adopt the ALJ's ruling.

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

  1. Pursuant to 6 NYCRR Part 622.12, DEC's motion for order without hearing is granted.
  2. Respondent, 111 Marinas Cleaners and Tailors is assessed a civil penalty of Fifty-six thousand five hundred ($56,000.00) dollars with one half of that penalty, ($28,000),due and owing within 30 days of service of this Order to the New York State Department of Environmental Conservation for the violations asserted in the complaint except for the alleged violation of 6 NYCRR part 232.12(g) which is dismissed without prejudice. Said penalty shall be paid to NYS DEC, Division of Legal Affairs, 47-40 21st Street, Long Island City, New York 11101-5407.
  3. The remaining one half of the assessed penalty ($28,000.00) is suspended provided that the Respondent:
    1. either installs the required vapor barrier and exhaust system within 30 days of service of this order or ceases and desists from operating the dry cleaning equipment at the facility;
    2. immediately corrects all other violations within 30 days of service of this order. The suspended penalty shall be due and owing within 60 days of service of this order if Respondent fails to comply with any portion of this Order.
  4. All communications from the Respondent to the Department concerning this order shall be made to the Department Legal Affairs Division, John F. Byrne, One Hunters Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407.
  5. The provisions, terms and conditions of this order shall bind the Respondent, it's agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
February 7, 2001

TO:
John F. Byrne, Esq.
NYS DEC
Legal Affairs Division
47-40 21st Street
Long Island City, NY 11101-5407

111 Marinas Cleaners and Tailors
111 4th Avenue
New York, New York 10003

Marina Chimerine, Esq.
30 Red Ground Road
Old Westbury, New York 11568

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 19 and 71 of
the Environmental Conservation Law and Parts 201 and 232 of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York
- by -
111 MARINAS CLEANERS AND TAILORS
Respondent.
DEC Case No. R2-20000801-173

Procedural Background

The New York State Department of Environmental Conservation ("DEC Staff") commenced this action pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") section 622.12 by service of a notice of motion for order without hearing and a complaint on or about November 16, 2000. DEC Staff submitted the following in support of the motion: affirmation of assistant regional attorney John F. Byrne; affidavit of Rasheed Carter sworn to on November 15, 2000 and affidavit of Radcliffe Lee sworn to on November 15, 2000. 111 Marinas Cleaners and Tailors ("Respondent") through it's attorney Marina Chimerine, Esq., replied to the motion and answered the complaint by letter dated November 30, 2000.

Staff's Motion was served on the Office of Hearings and Mediation Services and was assigned to Administrative Law Judge ("ALJ") Molly T. McBride

A contested motion for order without hearing shall be granted, if upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant granting summary judgment under the Civil Practice Law and Rules of New York ("CPLR") in favor of any party. 6 NYCRR 622.12(d) CPLR 3212 allows for the granting of summary judgment when no issue of fact remains.

BACKGROUND

DEC Staff alleges that Respondent violated the Environmental Conservation Law ("ECL") Articles 19 and 71 and 6 NYCRR Parts 201 and 232. It is alleged that Respondent failed to comply with numerous statutory and regulatory requirements related to the Respondent's ownership and operation of a dry cleaning business.

STAFF'S POSITION

The violations alleged by DEC Staff in its complaint involve Respondent's dry cleaning business located at 111 4th Avenue, New York, N.Y. Staff alleges that Respondent has violated several regulations including, 6 NYCRR 232.5(a)(12)(iv) and 232.6 in that although required, a vapor barrier and exhaust system have not been installed at the business. Staff also alleges the following: that Respondent has not complied with various sections of 232.12 that relate to record keeping; that Respondent has not submitted the registration application required under 232.15(b)(3) and that Respondent has not conducted the equipment inspections or maintained records of said inspections as directed under 232.7(a).

RESPONDENT'S POSITION

Respondent admits the allegations of Staff. However, Respondent claims that there should be an exception to the requirement for the vapor barrier at Respondent's business. Also, Respondent defends it's actions by arguing that if the Respondent did keep the required records, they would not be legible as the Respondent's principal is a Russian immigrant with poor English language skills.

FINDINGS OF FACT

After a review of the pleadings and papers submitted herein by the parties, I find that the following facts are not in dispute:

  1. Respondent is a New York corporation.
  2. Respondent owns and operates a dry cleaning business located at 111 4th Avenue, New York, N.Y.
  3. Respondent's business utilizes a fourth generation perchloroethylene dry cleaning machine that was installed in 1994.
  4. Respondent's business is operated in a mixed-use facility as defined in 6 NYCRR part 232.2(b)(42) and 232.2(b)(8).
  5. Respondent's business does not have a vapor barrier or exhaust system in place.
  6. Respondent has not maintained the records directed under 6 NYCRR part 232.12(a)(1)-(7); 232.12 (c) (1)-(4); 232.12(d).
  7. Respondent has not maintained the checklist required under 6 NYCRR part 232.7(a).
  8. Respondent has not maintained the checklist required under 6 NYCRR part 232.8(b) & (c).

DISCUSSION

A contested motion for order without hearing brought pursuant to 6 NYCRR 622.12 shall be granted if, "... upon all of the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party." (1) In the instant case, Respondent, through counsel, admits the Staff's allegations regarding the lack of a vapor barrier and also the failure to have the required records on site. The defense asserted for the failure to have the vapor barrier is Respondent's contention that there should be an exception for this Respondent. However, Respondent provides no legal authority for this position, but instead refers to a nearby dry cleaner that has no vapor barrier. This is not a proper or adequate defense. Respondent also contends that it should not be required to install the vapor barrier as it's lease is expiring in May, 2001 and has not yet been renewed. Respondent has indicated an unwillingness to incur the expense of the vapor barrier when it may not be operating out of it's current site after May, 2001.

6 NYCRR 232.5 (a)(2)(iv) requires a vapor barrier and exhaust system for fourth generation dry cleaning facilities that are co-located. As stated above, this business is co-located as defined in part 232.2. (2) Although Respondent contends that an exception should be made for Respondent's business, no exception exists in the regulations. Therefore, based upon the Respondent's admissions that no vapor barrier and no exhaust system exists at this facility, the motion is granted with respect to the cause of action which alleges a violation of 6 NYCRR 232.5(a)(2)(iv).

Respondent also admits to violating 6 NYCRR 232.12(a)(1)-(7), 232.12(c)(1)-(4), 232.12(d),232.5(g) and 232.7(a) in that Respondent did not keep the required records. Those regulations require that certain records regarding equipment inspection, use, maintenance, repair, replacement, and perc-contaminated wastewater treatment be maintained and available for DEC inspection. The defense or explanation offered is that the principal/owner of Respondent business has poor English skills and even if she had maintained the records, "... they would probably not be legible." (3) No exceptions are offered in the applicable regulations to assist this Respondent and the defense is not sufficient. Therefore, based upon the Respondent's admissions that the records required to be maintained were not, the motion is granted with respect to the causes of action which alleges a violation of 6 NYCRR 232.12(a)(1)-(7), 232.12(c)(1)-(4), 232.12(d), 232.5(g) and 232.7(a).

Staff's complaint also alleged a violation of 6 NYCRR 232.12(g) which requires new facilities or facilities installing new equipment to submit a compliance report to certify compliance with Federal National Emission Standards for Hazardous Air pollutants ("NESHAP") requirements. There is no allegation made in Staff's supporting papers that new equipment was installed. Neither has it been stated by Staff that Respondent failed to submit said compliance record when it first began operation. As stated earlier, 6 NYCRR 622.12 allows for the granting of a motion for order without hearing when the proof is established sufficiently. I find that Staff has not met its burden under 6 NYCRR 622.12 with respect to this alleged violation. Accordingly, this charge is recommended to be dismissed without prejudice.

CONCLUSION

Staff has requested a penalty of $53,500 be assessed against Respondent. ECL 71-2103 provides for a civil penalty, in the case of a first violation, of not less than $250.00 and no more than $10,000 for each violation of Article 19 and the regulations promulgated pursuant thereto. It also provides for an additional penalty of not to exceed $10,000 for each day during which the violation continues.

Staff alleged 6 violations and I found that 5 of the alleged violations have been sufficiently established. Therefore, the penalty range is from $1250 (5 x 250.00) to $50,000.00 (5 x 10,000) for each violation and $10,000 for each day that the penalty continues. Staff alleges that the penalties have been ongoing since May 15, 1999 which is the date that the regulations went into effect. As of Staff's motion, 535 days had elapsed. Staff has not requested that a penalty be assessed for each violation but instead has only asked for the minimum per diem, $100.00 per day. I disagree that the penalty for the initial violations should be waived. Assessing a penalty for the initial violation is consistent with the underlying scheme in the Department's penalty policy and recommend that a penalty be assessed for each violation as well as a penalty for each day that the violation has continued.

RECOMMENDATION

I recommend that a penalty be assessed against the Respondent as follows: $500.00 for each violation for a total penalty of $2500.00 and for each day that the penalty continued, an additional penalty of $100.00 per day or $53,500 for a penalty total of $56,000. A penalty should be assessed for each violation before assessing a penalty for the continuing violation. I further recommend that one half of the penalty, $28,000.00, be due and owing within 30 days of service of the Commissioner's order herein and that the remaining one-half be suspended provided that: 1) Respondent either install the required vapor barrier and exhaust system within 30 days of service of the Commissioner's Order herein or cease and desist from operating the dry cleaning equipment and; 2) immediately correct all other violations. Further, the charge of alleged violation of 6 NYCRR 232.12(g) should be dismissed without prejudice. This Ruling on the motion for order without hearing can be referred to the Commissioner for final determination.

Dated: January 2, 2001
Albany, New York

___________/s/______________
MOLLY T. MCBRIDE

1. 6 NYCRR 622.12(d)

2. 6 NYCRR 232.2 (b) (8)

3. Chimerine November 30, 2000 letter, page 2

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