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A-1 Compaction Corp - Decision and Order, June 22, 1994

Decision and Order, June 22, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
alleged violations of Article 27, Collection, Treatment and Disposal of Refuse and
Other Solid Waste, of the Environmental Conservation Law of the State of New York and
Parts 360 and 364 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,
and Proceedings to Revoke All Permits Held by and Deny All Applications for Permits Filed

- by -

A-1 COMPACTION CORPORATION
(A/K/A-1 COMPACTION, INC.;
A/K/A-1 COMPACTION CORP.)

AND

ALFRED N. RATTENNI, INDIVIDuALLY
AND AS PRESIDENT OF A-1
COMPACTION CORPORATION,

RESPONDENTS.

DECISION AND ORDER

WP-190-89
WP-190A-89
WP-190B-89
WP-190C-89
WP-190D-89
AND
3-5518-00407

WHEREAS:

  1. Staff of the Eastern Field unit of the New York State Department of Environmental Conservation (the "Staff") duly served a Notice of Hearing and Complaint upon Respondents, thereby initiating an administrative enforcement hearing. Separately, Staff of the Department's Region 3 Office issued a notice of intent to revoke permits held by Respondent A-1 Compaction Corporation ("A-1") and deny its applications for permit renewals and modifications.
  2. Pursuant to a ruling by Administrative Law Judge ("ALJ") Kevin J. Casutto, issued on November 9, 1993, the two actions were consolidated and a hearing on the consolidated matter was held before ALJ Casutto on November 16, 1993 in the New York State Department of Environmental Conservation Eastern Field unit Office, Tarrytown, New York.
  3. Staff appeared and was represented at the hearing by John F. Byrne, Esq., Assistant Field unit Attorney, Eastern Field unit Office, Tarrytown, New York, and Jonah Triebwasser, Esq., Assistant Regional Attorney, Region 3, New Paltz, New York. Respondents appeared and were represented by Stephan Wislocki, Esq., Yonkers, New York.
  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 except as noted below.
  5. The evidence demonstrates that Respondent Rattenni committed violations of the solid waste rules by operating an unpermitted solid waste management facility at 6 Wampus Lake Drive, Village of Armonk, Westchester County, New York (the "Site") and by failing to meet several of the operating standards in 6 NYCRR Part 360. Respondent A-1 was shown to have been responsible for transporting solid waste in an uncovered vehicle on one occasion.
  6. The charges concerning disposal of solid waste at an unauthorized facility cannot be sustained because the evidence shows that the employees of Respondent A-1 were prevented from disposing of solid waste at the Site. The rule under which the offenses were charged, 6 NYCRR 360-1.5(a)(2), does not encompass conduct that only amounts to an attempt to violate the rule. This represents a serious deficiency, however, because it forces law enforcement personnel to choose between preventing an offense (and the actual and potential environmental harm associated with it) and allowing the offense to be committed in order to avoid undermining prosecutorial efforts. This matter should be reviewed to determine whether changes to existing laws or rules are appropriate to address this concern.
  7. Respondents' convictions of bribery and conspiracy to commit bribery are significant factors concerning their suitability and fitness to engage in the activities for which they are permitted. Even considering the mitigating circumstances surrounding the convictions, the fact remains that these are crimes against the public trust. I conclude that the record does demonstrate an extraordinary potential for future compliance problems, thereby creating an unusual burden on the Department to oversee Respondents' operations. Although this problem could be addressed by the revocation of Respondent A-1's permits and denial of the pending application, in consideration of the total circumstances and as an alternative to revocation and denial, I am prepared to allow continued operations if additional restrictions are placed in the operating permit for Respondents' solid waste transfer station in Yonkers, New York.
  8. Respondents are also cautioned that failure to timely, fully and satisfactorily comply with all terms and conditions of this Decision and Order and the terms and condition of any permit they hold will be seriously considered in any future action in which Respondents' suitability and fitness to engage in regulated activities is being reviewed. Respondents are reminded that any such failure will not be viewed in isolation but rather will be examined in the context of the compliance problems that were raised in or were the subject of this proceeding.

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

  1. Respondent Rattenni is found to have committed violations of the following rules: 6 NYCRR 360-1.7(a)(1)(ii) [operating a solid waste management facility without a permit], 6 NYCRR 360-7.10(g) [failing to minimize leachate generation at the Site], 6 NYCRR 360-1.14(e) [failing to control access to the Site] and 6 NYCRR 360-7.10(d), (e) and (f), and 6 NYCRR 360-7.9(i) [failing to place cover, final cover and vegetative cover at the Site].
  2. Respondent A-1 is found to have committed a violation of ECL 27-0712(2) [transporting solid waste in an uncovered vehicle].
  3. One count of violation of ECL 27-0712(2) and both counts of violation of 6 NYCRR 360-1.5(a)(2) charged against Respondent A-1 are dismissed.
  4. For the violations found above, Respondent Rattenni shall pay a civil penalty in the amount of Fifty Four Thousand Dollars ($54,000) and Respondent A-1 shall pay a civil penalty in the amount of Two Thousand and Five Hundred Dollars ($2,500). Both penalties shall be due and payable within sixty (60) days of service of a conformed copy of this Order upon the Respondents.
  5. Respondents shall immediately cease importing any additional materials to the Site and perform remedial investigation, remediation and closure of the Site in accordance with a schedule to be set by the Staff, consistent with the recommendations of and subject to the approval of the Staff.
  6. Respondent A-1's permit to operate a solid waste transfer station shall be modified to restrict the volume of solid waste that may be received at the transfer station on an annual basis to current levels. The Department Staff shall review the Respondents' records to establish this volume limit. Respondents may apply to delete or modify this condition at a future date when they have established their reliability to comply with all permit terms.
  7. If necessary in order to achieve an adequate level of oversight of Respondents' regulated activities, Staff are authorized to impose an additional condition in Respondent A-1's operating permit which requires funding the cost of an environmental monitor who would dedicate up to one-quarter of his or her time to the oversight of the Respondents' facility.
  8. Respondent A-1's applications to renew and modify its existing permits are remanded to Staff for further processing consistent with this Decision and Order. Staff is directed to process these applications expeditiously.
  9. All communications between Respondents and Department Staff concerning this Order shall be made to: Jean A. McGrane, Region 3 Regional Director, New York State Department of Environmental Conservation, 21 South Putt Corners Road, New Paltz, New York, 12561-1696.
  10. 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.

For the New York State Department
of Environmental Conservation
/s/
LANGDON MARSH, ACTING COMMISSIONER

Dated: Albany, New York
June 22, 1994

To: Jonah Triebwasser, Esq.
Assistant Regional Attorney
NYSDEC Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

John Byrne, Esq.
Assistant Field unit Attorney
NYSDEC Eastern Field unit Office
200 White Plains Road [5th Floor]
Tarrytown, New York 10591-5805

Stephan Wislocki, Esq.
P.O. Box 467
Yonkers, New York 10703

Nicholas A. Rattenni
c/o A-1 Compaction Corporation
325 Yonkers Avenue,
Yonkers, New York 10701

A-1 Compaction Corporation
325 Yonkers Avenue,
Yonkers, New York 10701

Alfred N. Rattenni
c/o A-1 Compaction Corporation
325 Yonkers Avenue,
Yonkers, New York 10701

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550 Consolidated Hearing In the Matter

- of -

Alleged Violation of Article 27 of the New York Environmental Conservation Law and
Part 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 -

A-1 COMPACTION CORPORATION
(A/K/A-1 COMPACTION, INC.;
A/K/A-1 COMPACTION CORP.)

AND

ALFRED N. RATTENNI,
INDIVIDuALLY AND AS PRESIDENT
OF A-1 COMPACTION CORPORATION,

RESPONDENTS.

DEC NOS. WP-190-89 and
WP-190A-89 through WP-190D-89;

AND

No. 3-5518-00407

HEARING REPORT

- by -

/S/
Kevin J. Casutto
Administrative Law Judge

SUMMARY

This hearing report addresses a consolidated action concerning alleged violations of solid waste law and regulations 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 did not deny the facts underlying the alleged violations, but instead asserted affirmative defenses, which if successful, would result in a finding of no violation as a matter of law. Respondents opposed Staff's notice of intent to revoke and deny their permits and permit applications. Respondents presented no direct case in response to the alleged enforcement violations, but did submit evidence concerning their suitability and fitness to hold Departmental permits.

The report finds Respondent Rattenni in violation of operating an unpermitted solid waste management landfill at his residential property in the Town of North Castle and other operational requirements related to operation of the landfill. Respondent A-1 is a corporation wholly owned by Respondent Rattenni. The report finds that Respondent A-1 committed the violation of transporting uncovered solid waste and refers to the Commissioner for determination, whether the facts are legally sufficient to support two violations of illegal disposal of solid waste. Respondents' affirmative defenses were rejected. A penalty of $2,500. is recommended to be imposed on the corporate Respondent, and a penalty of $54,000. is recommended to be imposed upon Respondent Rattenni.

The report recommends finding that Respondents are not unsuitable and unfit to hold Departmental permits. Instead, it is recommended that Respondents' permits and permit applications be remanded to Staff for further evaluation and processing. Respondents are cautioned that any future violations may result in loss of their permits, based upon an adverse determination of suitability and fitness.

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/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 November 16, 1993, in the New York State Department of Environmental Conservation ("DEC" or the "Department") Eastern Field unit Office, Tarrytown, New York.

Following the November 16, 1993 hearing, the ALJ set a schedule for filing initial and reply memoranda. The hearing transcript was received by the Office of Hearings on December 6, 1993. Staff's reply memorandum was received on January 27, 1994 and the hearing record was closed on January 28, 1994 after receipt of Respondents' reply memorandum.

Introduction

Respondent A-1 Compaction Corporation ("A-1") is a corporation with offices at 325 Yonkers Avenue, Yonkers, New York. Respondent A-1 has been issued a solid waste transporter permit, pursuant to ECL Article 27, Title 3 and 6 NYCRR Part 364, and a solid waste management facility permit to operate a C&D debris transfer station at 325 Yonkers Avenue, Yonkers, New York, issued pursuant to ECL Article 27, Title 7 and 6 NYCRR Part 360. Over the years, Respondent A-1 has applied for, and been issued, permits for modification of the transfer station. Respondent A-1 has filed applications for renewal and further modifications of its transporter and transfer station permits. Respondents continue to operate under these permits, pursuant to State Administrative Procedures Act 401, pending a final agency determination on the renewal applications.

Respondent Alfred N. Rattenni (Rattenni) is the sole shareholder of Respondent A-1 Compaction Corporation (A-1), its President and its chief executive officer. Rattenni owns residential real property located at 6 Wampus Lake Drive, Village of Armonk, Town of North Castle, Westchester County, New York (the site).

Staff of the Department's Eastern Field unit Office (Staff) issued a Complaint, duly served upon Respondents, alleging solid waste violations (ECL Article 27 and 6 NYCRR Part 360A revised 6 NYCRR 360 was promulgated by the Department, effective October 9, 1993. The regulation effective with respect to this proceeding was effective from December 31, 1988 to October 8, 1993 (revised March 27, 1990 [promulgation of new Subpart 15] and May 28, 1991 [repeal of existing Subpart 9 and promulgation of new Subpart 9]).) at Respondent Rattenni's Armonk, New York residential property.

Staff essentially asserts Respondents operated an illegal solid waste management facility (construction and demolition debris landfill) from 1989 through 1993 at Respondent Rattenni's residential property, and that Respondents also committed related operational violations. Staff seeks monetary penalties and asserts the site requires remedial investigation, remediation and closure.

Separately, by letter dated November 18, 1992, the Department's Region 3 Staff notified Respondents of its intent to revoke all Respondents' current permits and to deny all Respondents' applications for solid waste facility permits and permit modifications (hereinafter, revocation/denial). Staff asserts that Respondent A-1 is unsuitable and unfit to engage in regulated environmental activities due to its history of non-compliance and other relevant history, including the history of Respondent Rattenni, A-1's owner, President and chief financial officer. Staff's decision that Respondent A-1 and Respondent Rattenni were unsuitable and unfit to engage in permitted activities was based in part upon the underlying allegations set forth in the enforcement Complaint, but also upon other factors.

Respondents requested a hearing following receipt of notice of Staff's intent to revoke and deny.

On September 17, 1993, Staff pre-filed its direct case on Respondents' lack of suitability and fitness. Included in the filings are a copy of the Complaint; copies of two Consent Orders that A-1 entered into with the Department in 1990; certified copies of Respondents' federal district court judgments of conviction for bribery (18 USC 371) and conspiracy to commit bribery (18 uSC 666), entered July 20, 1992 (SDNY); and supporting documentation. This prefiled evidence, in addition to testimony and documentation submitted at hearing comprise Staff's case concerning its intent to revoke/deny Respondents' permits.

Accompanying Staff's pre-filed evidence was a memorandum of law addressing suitability and fitness issues. Opposing counsel did not object to receipt of the pre-filed documentation into evidence, but requested (and was granted) leave to submit a memorandum of law asserting legal issues in opposition to Staff's intent to revoke/deny.

By letter dated October 25, 1993, Staff filed supplemental evidence regarding Respondents' suitability and fitness, consisting of two simplified criminal informations (Environmental Conservation Appearance Tickets [ECATs]).

In forwarding Respondents' permit revocation/denial hearing request to the Office of Hearings, Staff requested that the revocation/denial action be scheduled for hearing on the same date and time as the pending enforcement action, thereby suggesting the two actions are related. Further, the allegations set forth in the enforcement action are also cited as one basis for revocation/denial of Respondent A-1's permits. In reviewing the two actions, the ALJ determined that the actions present common questions of law and fact. Initially, on his own motion, pursuant to 6 NYCRR 622.12(c), the ALJ ordered a joint hearing of common issues. However, over time, it became apparent that the two actions were inter-related to such an extent that consolidation would be more appropriate than joint hearing, and that the two actions were more in the nature of an enforcement/revocation action, rather than a permit denial action. Therefore, by letter-ruling dated November 9, 1993, the ALJ modified the order for joint hearing and consolidated the two actions scheduled for hearing on November 16, 1993, pursuant to 6 NYCRR 622.12(c). Neither party objected to the order of consolidation.

An evidentiary hearing on the consolidated action was held, as scheduled, on November 16, 1993 to address the allegations contained in the Complaint (also asserted by Staff as a basis for permit revocation/denial). Staff appeared and was represented at the hearing by John F. Byrne, Esq., Assistant Field unit Attorney, Eastern Field unit Office, Tarrytown, New York, and Jonah Triebwasser, Esq., Assistant Regional Attorney, Region 3, New Paltz, New York. To support its case Staff called as its witnesses the following staff members: Stephen Cook, Environmental Conservation Officer (ECO), Alexander Ciesluk, Environmental Analyst II, Thomas Moran, Division of Law Enforcement, Bureau of Environmental Conservation Investigations (BECI) Investigator, Victoria DeCarlo (formerly, Ingenio) Environmental Engineer 1 and Ajay Shah, Regional Hazardous Waste Remediation Engineer.

Respondents appeared and were represented by Stephan Wislocki, Esq. Yonkers, New York. Respondents presented no direct case.

Staff's Position

Staff alleged that on December 1, 1989, two trucks, owned by Respondent A-1 and operated by two A-1 employees, transported uncovered loads of construction and demolition debris ("C&D debris") to Respondent Rattenni's Wampus Lake Drive residential property and attempted to dispose of the material at that site. Staff further alleged that since at least December 1, 1989, Respondent Rattenni has continually owned and operated an unpermitted SWMF, i.e., a C&D debris landfill, at the site. Related to the allegation of illegal operation of a C&D debris landfill, Staff also alleged that Respondent Rattenni committed continuing violations of Part 360 operational standards, including failing to minimize leachate generation at the site; failing to control the site by constructing a fence or gate, or posting signs, or other suitable means; and failing to place cover, final cover and vegetative cover at the site.

For these alleged violations, Staff sought: 1) penalties in the amount of $10,000.00 against the corporate Respondent A-1, and $59,000.00 against Respondent Rattenni (later modified to $54,000.00); 2) an order that Respondents immediately cease bringing additional C&D debris material to the site and perform remedial investigation, remediation and closure of the site in accordance with the requirements of 6 NYCRR Part 360, in a manner acceptable to Staff.

Additionally, by a separate action, Staff sought revocation of Respondents' permits and denial of Respondents' permit modification and renewal applications because Respondents Rattenni and A-1 are allegedly unsuitable and unfit to engage in regulated environmental activities due to their history of non-compliance and other relevant history. Staff maintains that since Respondent Rattenni is the sole shareholder, President and chief executive officer of A-1, that Rattenni's history of non-compliance is also directly attributable to Respondent A-1 and should be considered in assessing A-1's suitability and fitness as a permittee or permit applicant.

To support its assertion that Respondents are unsuitable and unfit, Staff cites Respondent Rattenni's July, 1992 federal felony bribery and conspiracy convictions related to his waste hauling activities; Respondent A-1's July, 1992 federal felony bribery and conspiracy convictions related to its waste hauling activities; Respondent A-1's two 1990 consent orders documenting transport violations; alleged violations charged in two October 21, 1993 simplified informations; and those violations alleged in the present Complaint.

Respondents' Position

Respondents filed an Answer received by the Office of Hearings on June 26, 1992. Respondents orally amended their Answer at hearing to admit the allegations contained in Paragraphs 13 and 27 of the Complaint. They conceded they deposited C&D debris material at the site on or about December 1, 1989, but assert that only exempt C&D was brought to the site for use as fill material, to regrade an area of the property near a swimming pool. In their Answer, Respondents asserted four affirmative defenses: 1) their conduct is exempt under 6 NYCRR Part 360-7.1; 2) the ECAT referred to in Complaint paragraph six was eventually dismissed by the local court, and therefore the doctrine of res judicata should preclude Staff from maintaining an administrative enforcement action on that issue; 3) laches applies to the enforcement charges, since the allegations date back to December, 1989; and 4) the applicable statute of limitations has expired, and Staff is therefore precluded from bringing the enforcement charges. At hearing, Respondents reserved the right to develop their affirmative defenses in their post-hearing memoranda.

Findings of Fact

The evidence comprising Staff's enforcement case remains essentially uncontroverted. That is, Respondents presented no direct case on the enforcement charges. Nor did Respondents substantially undermine the substance of Staff's case through cross-examination.

In its Complaint, Staff has alleged continuing violations concerning leachate control, site access, and cover and closure requirements only from the date of Shah's October 21, 1991 inspection. However, DeCarlo's testimony supports a finding of violation on these charges from December 5, 1989. Staff has not sought to amend its Complaint to address this earlier period. Therefore, although the findings of fact address this period, the conclusions of law do not. No penalty assessment is recommended for the time period from December 5, 1989 through October 20, 1991 for these violations.

  1. Respondent A-1 Compaction Corporation (a/k/a-1 Compaction, Inc., a/k/a-1 Compaction Corp.) is a corporation with offices for the transaction of business at 325 Yonkers Avenue, Yonkers, New York.
  2. Respondent Alfred N. Rattenni is the sole shareholder, President and chief financial officer of Respondent A-1 Compaction Corporation.
  3. Respondent Rattenni owns residential real property located at 6 Wampus Lake Drive, Village of Armonk, Town of North Castle, Westchester County, New York (the "site").
  4. Neither Respondent Rattenni nor Respondent A-1 has been issued a Solid Waste Management Facility permit for the Wampus Lake Drive site.
  5. The fill area of the site (i.e., the area of the site in which C&D debris was deposited) was a ravine area, approximately three-quarters acre in size, by approximately two feet deep.

    The December 1, 1989 Investigation

  6. On December 1, 1989 Staff including Investigator Moran, ECO Cook and ECO Watt investigated suspected illegal solid waste disposal activities at the site.
  7. Respondents Rattenni and A-1 (through A-1's employees), transported and disposed of C&D debris including wood, glass, metal and plastic at the site on December 1, 1989, but ceased such activities by January 1, 1990.
  8. Respondents had been operating a landfill at the site for an unspecified period of time prior to December 1, 1989.
  9. As a result of the December 1 investigation and subsequent Staff inspections (by DeCarlo and Shah), it was found that material deposited in the fill area of the site include pulverized wood, glass, bits of metal, particles of plastic, shredded C&D debris, wood and pipes, tile and also yard waste, a tire, plastic bags, plastic bottles and springs and wallboard material.
  10. On December 1, 1989, Joseph A. Vitale, an A-1 employee, was operating a truck owned by Respondent A-1 carrying C&D debris, and attempted to dispose of the load of C&D debris at the site. He was prevented from doing so by Staff.
  11. On December 1, 1989, a truck owned by Respondent A-1, operated by A-1 employee Joseph A. Vitale, and carrying an uncovered load of C&D debris, was observed at the site by Staff. However, the record does not establish that any cover or lack of cover was observed while the vehicle was in transit.
  12. On December 1, 1989, Kevin T. Sullivan, an A-1 employee, was operating a truck owned by Respondent A-1 carrying C&D debris, andattempted to dispose of the load of C&D debris at the site. He was prevented from doing so by Staff.
  13. On December 1, 1989, Frank A. Rossi, an A-1 employee, was operating a truck owned by Respondent A-1 on Route 128, northbound, in the County of Westchester, Town of North Castle, New York transporting an uncovered load of C&D debris, including wood, metal pipe and plastic. He was enroute to the site, where he intended to deposit the load of C&D debris.
  14. On December 1, 1989, at least one truck owned by Respondent A-1 and operated by an unidentified person, disposed of a truck-load of pulverized C&D debris at the site. That C&D debris contained wood, glass, metal and plastic.
  15. On November 30, 1989 and December 1, 1989, A-1 employee Anthony DiPasquale was operating a bulldozer at the site to regrade C&D debris in the fill area.

    The DeCarlo and Shah Inspections

  16. Following the December 1, 1989 investigation, DeCarlo performed an inspection of the site on December 5, 1989 and Shah performed inspections of the site on October 21, 1991 and February 3, 1993.
  17. As a result of the DeCarlo and Shah inspections, it was found that from at least December 5, 1989 to February 3, 1993, no measures to minimize leachate generation through drainage control or other means were in place at the site, a period of 470 days. Further, Staff observed erosion at the site during this time period.
  18. As a result of the DeCarlo and Shah inspections, it was found that from at least December 5, 1989 to February 3, 1993, no measures to control site access such as construction of a fence or gate, posting of signs, or other suitable means were in place at the site, a period of 470 days.
  19. As a result of the DeCarlo and Shah inspections, it was found that from at least December 5, 1989 to February 3, 1993, no cover, final cover or vegetative cover was placed at the site, a period of 470 days; further, the site has not been capped with a clay liner or otherwise subjected to closure.

    Suitability and Fitness

  20. Respondent A-1 entered into two Consent Orders with the Department in 1990: Consent Order No. W3-0479-90-02 (dated June 5, 1990) resolved a violation of ECL 27-0712(2), transporting solid waste (C&D debris and putrescible waste) without a cover, which occurred on February 8, 1990 (for which a penalty of $1,000.00 was assessed against Respondent A-1); and Consent Order No. W3-0422-90-01 (dated August 13, 1990) resolved a separate violation of ECL 27-0712(2), transporting solid waste without a cover, which occurred on January 2, 1990 (for which a penalty of $500.00 was assessed against Respondent A-1).
  21. Respondent Rattenni was convicted in federal district court of bribery (18 uSC 371) and conspiracy to commit bribery (18 uSC 666) in April, 1991, (Judgment entered, July 20, 1992 [SDNY]).
  22. Respondent A-1 was convicted in federal district court of bribery (18 uSC 371) and conspiracy to commit bribery (18 uSC 666) in April, 1991, (Judgment entered, July 20, 1992 [SDNY]).
  23. Respondents Rattenni and A-1, and a third party (Peter Hargrove, then an employee of Respondent Rattenni), during the time period of January, 1986 through May 7, 1991 unlawfully, willfully and knowingly conspired and agreed together and with each other to commit offenses against the united States: i.e., Respondents, by corruptly giving, offering, and agreeing to give merchandise and other things of value in excess of $10,000.00, primarily, winter holiday turkeys, hams and liquor, to New York State Police Troopers (an agency receiving federal funding), intended that the Troopers be influenced and rewarded in connection with the ticketing of garbage trucks and other vehicles for violation of the traffic laws of the State of New York; and Respondents did so.

Conclusions of Law

  1. From at least December 1, 1989 until at least February 3, 1993 Respondent Rattenni has owned and operated a SWMF consisting of a C&D debris landfill at the Wampus Lake Drive site, a period of 1160 days, in violation of 6 NYCRR Part 360-1.7(a)(1)(ii).
  2. The site is not eligible for a SWMF permit exemption under 6 NYCRR Part 360-7.1, because C&D debris deposited at the site contained materials that are not within the claimed exemption. Such non-conforming materials present at the site on December 1, 1989 and on subsequent dates, include wood, metal, glass, tile and plastic.
  3. A strict construction of ECL 27-0303(1) and 6 NYCRR 360-1.5(a)(2), requires a conclusion that no violation may be sustained for either charge of disposal of solid waste at the site on December 1, 1989 by Respondent A-1, through its employees, Kevin T. Sullivan and Joseph A. Vitale.
  4. On December 1, 1989, Respondent A-1, through its employee Frank A. Rossi, operated a truck owned by A-1, and transported an uncovered load of non-exempt C&D debris northbound on Route 128 in the Town of North Castle, New York, in violation of ECL 27-0712(2).
  5. Evidence in the record is insufficient to support a finding that on December 1, 1989, Respondent A-1, through its employee, Joseph A. Vitale, committed a violation of ECL 27-0712(2), transporting uncovered solid waste.
  6. From at least October 21, 1991The date of the first Shah inspection. until at least February 3, 1993 Respondent Rattenni failed to control access to the site by constructing a fence or gate, posting signs, or other suitable means in violation of 6 NYCRR Part 360-1.14(e), a period of 470 days.
  7. From at least October 21, 1991 until at least February 3, 1993, Respondent Rattenni failed to place cover, final cover and vegetative cover at the site or otherwise perform closure of the site, in violation of 6 NYCRR Part 360-7.10(d), (e) and (f), and 6 NYCRR Part 360-7.9(i), a period of 470 days.
  8. From at least October 21, 1991 until at least February 3, 1993, Respondent Rattenni failed to minimize leachate generation at the site through drainage control or other means, in violation of 6 NYCRR Part 360-7.10(g), a period of 470 days.
  9. For purposes of determining Respondent A-1's suitability and fitness to hold permits, Respondent Rattenni's history is relevant because, as sole shareholder he holds a substantial interest in the corporation, and as President, and chief financial officer of A-1, he is a high managerial agent of the corporation. (See, generally, Record of Compliance Enforcement Guidance Memorandum p.5 [Revised 2/93]).

DISCUSSION

  1. Applicable Statutory and Regulatory Provisions

    Many technical terms defined by statute or regulation are pertinent to this proceeding. Definitional sections ECL 27-0303, ECL 27-0701 and 6 NYCRR Part 360-1.2 are instructive for the meaning of such terms as "construction and demolition debris", "disposal", "disposal facility", "final cover", "intermediate cover", "landfill", "owner", "operator", "solid waste", "solid waste management facility", "transporter", "vector" and "vehicle".

    Jurisdiction and authority to initiate this administrative action is based upon 6 NYCRR Part 360 and Environmental Conservation Law 3-0301(1)(bl),(m) and (n), 3-0301(2)(h), Article 27, Titles 3 and 7, and Article 71, Title 27.

    ECL 27-0712 requires that any individual, firm or corporation shall not cause or permit any solid waste to be transported on any vehicle unless the solid waste on said vehicle is covered.

    6 NYCRR Part 360 addresses regulation of solid waste management facilities; Subpart 360-1 addresses general provisions; Subpart 360-2 addresses landfills; Subpart 360-7 addresses C&D debris landfills.

    6 NYCRR 360-1.5(a)(2) requires that no person shall dispose of solid waste in New York State, except at a disposal facility authorized to accept such waste for disposal pursuant to 6 NYCRR Part 360 or pursuant to an order issued by the department or a court (except as provided in Subpart 360-10 of Part 360 regarding disposal of Regulated Medical Waste).

    6 NYCRR 360-1.7(a)(1)(ii) requires that no person shall operate a solid waste management facility, or any phase of it, except in accordance with a valid permit to operate that facility issued pursuant to 6 NYCRR Part 360, unless otherwise provided for in subdivisions (b) or (c) of that section, or otherwise authorized by an applicable Subpart of 6 NYCRR Part 360 pertaining to the type of solid waste management facility in question.

    6 NYCRR 360-7.10(g) requires that all landfills must be constructed and operated to minimize the generation of leachate.

    6 NYCRR 360-1.14(e) requires that access to and use of the facility must be strictly and continuously controlled by fencing, gates, signs or other suitable means.

    6 NYCRR 360-7.10(d) requires that cover material must be applied at all C&D landfills as necessary to control odors, fire hazards, vectors, blowing litter and scavenging.

    6 NYCRR 360-7.10(e) and 6 NYCRR 360-7.9(i) require a final cover system for C&D debris landfills.

    6 NYCRR 360-7.10(f) requires that a final vegetative cover be established and maintained on all exposed final cover material as soon as possible, but not later than four months after placement.

    ECL 71-2703(1) provides for a maximum civil penalty in the amount of Two Thousand Five Hundred ($2,500.00) Dollars for each violation of ECL Article 27, Titles 3 and 7, or rules or regulations issued pursuant thereto, and an additional penalty of not more than One Thousand ($1,000.00) Dollars for each day during which such violation continues.

    ECL 71-2703(3) provides that any person who violates the provisions of, or fails to perform any duty imposed by ECL Article 27, Title 7, or rules or regulations issued pursuant thereto, with regard to the construction and operation of facilities for the disposal of C&D debris, shall be liable for a maximum civil penalty of Five Thousand ($5000.00) Dollars for each such violation; and that each day of such deposition shall constitute a separate violation, and this civil fine is in addition to any other fines or penalties which may be imposed pursuant to ECL Article 71, Title 27.

  2. The Complaint

    The evidence comprising Staff's case remains essentially uncontroverted. That is, Respondents presented no direct case on the enforcement charges; nor did Respondents substantially undermine the substance of Staff's case through cross-examination.

    1. The Charge of Operating an unpermitted Construction and Demolition Debris Landfill

      In their Answer, Respondents admit that employees of A-1 transported and disposed of C&D debris at the site on or about

      December, 1989. However, they assert that the C&D debris was brought to the site for the purposes of regrading an area of the side lawn. Respondents further allege in their Answer that the C&D debris which they brought to the site met the permit exemption provisions of 6 NYCRR Part 360-7.1(a) and 6 NYCRR Part 360-7.1(b)(1). Nonetheless, since Respondents presented no direct case on the enforcement charges and did not substantially controvert Staff's proof through cross-examination, they failed to create any factual basis in the record to support a finding that the C&D debris met the exemption standards.

      Respondents' legal arguments, presented in their briefs, are not evidence. Respondents' assertions that the C&D debris was brought to the site for purposes of regrading an area near a swimming pool, and that the site has been seeded with vegetative cover, have no evidentiary basis in the record and in any event are not relevant. These assertions are given no weight. In fact, as stated in the Findings of Fact section (above), and the exemption Discussion section (II[D], below), the uncontroverted testimony of Staff's witnesses shows that the material which Respondents deposited at the site does not qualify for the exemption which Respondents claim. That testimony establishes that no SWMF permit has been issued for the site, and that Respondents operated the landfill from at least December 1, 1989, when Staff first learned of the site, until at least February 3, 1993, the date of the most recent Staff inspection of the site (performed by Ajay Shah). Therefore, a SWMF permit was required for activities which Respondents conducted at the site at least from December 1, 1989 to February 3, 1993, a period of 1160 days.

    2. The Charge of Transporting uncovered Waste

      Staff alleges that on December 1, 1989, two trucks owned and operated by Respondent A-1 Compaction Corp. (A-1) transported uncovered solid waste consisting of C&D debris to Respondent Rattenni's property at 6 Wampus Lake Drive, Village of Armonk, Town of North Castle, Westchester County, New York (the site), in violation of 6 ECL 27-0712(2). Respondents admit transporting C&D debris to that location on or about the date in question.

      The facts with respect to one charge are uncontroverted and sufficient. However, with respect to the other charge, Staff's evidence is not sufficient. An uncovered vehicle operated by A-1 employee Joseph A. Vitale, was observed at the site by ECO Watt. ECO Watt did not testify at the hearing, but Exhibit 4 contains an arrest report prepared by him. The arrest report indicates that Joseph A. Vitale was operating the truck at the site (i.e., on private property) on December 1, 1989, preparing to dump solid waste at the site. However, regarding transport of uncovered solid waste, ECO Watt's arrest report contains only the conclusory statement that "Mr. Vitale transported solid waste without a cover" - - i.e., a restatement of the allegation.

      This conclusory statement contained in ECO Watt's arrest report is not sufficient to sustain a finding of violation.

      The record does not establish that any cover or lack of cover was observed while this vehicle was in transit to the privately owned site. Although not shown to be the case, it is not unreasonable that the cargo area of the vehicle operated by Vitale may have been covered while in transit, and the cover removed upon his arrival at the site. Staff bears the burden of proof on this charge, and chose not to call ECO Watt as a witness to attempt to establish a factual basis in support of this charge. No other Staff witness testified to observing the uncovered vehicle in transit. Nor was any admission obtained from Vitale that the load was uncovered while in transit. Accordingly, I find the evidence in the record is insufficient to support a finding that the vehicle operated by Vitale was uncovered while in transit.

    3. The Charge of Illegal Disposal

      Staff alleged that on December 1, 1989, Respondent A-1, through its employees, drove two A-1 trucks carrying C&D debris to the site and were attempting to dispose of the C&D at the site, in violation of 6 NYCRR 360-1.5(a)(2). That provision requires that no person dispose of solid waste in this state, except at a facility authorized to receive such waste pursuant to Part 360.

      6 NYCRR 360-1.5(a)(2). ECL Article 27, Title 3 defines disposal as, "...the discharge, deposit, injection, dumping, spilling, leaking or placing of any waste into or on any land or water so that such waste may enter the environment or be emitted into the air or discharged into any waters, including groundwaters." ECL 27-0303(1).

      The record shows that the two A-1 trucks at the site, operated by A-1 employees Kevin T. Sullivan and Joseph A. Vitale, were each preparing to dump their truck-loads of C&D debris at the site when they were stopped by Staff. Respondents admit depositing C&D debris at the site in or about December, 1989. However, with respect to the two trucks charged, disposal of this waste at the site - - i.e., depositing, dumping or placing - - never occurred. Therefore, a strict construction of the above cited provisions do not prohibit attempted disposal, as is alleged by Staff. Nonetheless, it is reasonable to conclude that, but for Staff's intervention, Respondent A-1 would have completed the act of disposal. This raises public policy concerns important to the regulatory program. Therefore, I refer to the Commissioner for his consideration, the issue of whether an offense of attempted disposal is within the meaning of ECL 27-0303(1) and 6 NYCRR 360-1.5(a)(2).

    4. Affirmative Defenses
      1. Exemption under 6 NYCRR Part 360-7.1

        Respondents assert their activities are exempt from permit requirements pursuant to 6 NYCRR Part 360-7.1(b)(1). 6 NYCRR 360-7.1(b)(1) states in pertinent part, that a C&D debris landfill at which only recognizable uncontaminated C&D debris consisting of concrete, asphalt pavement, brick, soil or stone is placed, is exempt from regulation under Part 360 if operations are undertaken only between the hours of sunrise and sunset; and, if the landfill receives materials from off-site, that no fee or other form of consideration is required for the privilege of using the facility for disposal.

        Respondents make two arguments in furtherance of the claimed exemption. First, as a factual matter, Respondents claim they only transported to the site C&D debris that would qualify for the exemption. Secondly, Respondents raise a legal issue by asserting that exempt C&D debris may be brought to an unpermitted site containing non-exempt materials, and, once deposited at the site, mixed with those other materials which do not meet the exemption requirements.

        Respondents have not provided any evidence in support of their factual claim that only exempt material was brought to the site. Furthermore, the evidence in the record shows that the C&D debris which Respondents transported to the site cannot qualify for the exemption. On December 1, 1989 ECO Cook inspected material recently dumped at the site by an A-1 truck. That material was comprised of pulverized wood, glass, bits of metal, particles of plastic and wallboard material. These materials are not within the exemption. ECO Cook described this material as crushed C&D debris. He observed similar crushed C&D debris in the other two trucks, and also observed similar material in the fill area of the site.

        Other Staff witnesses corroborate that materials at the site could not qualify for the claimed exemption. Investigator Moran was also at the site on December 1, 1989 and testified regarding his observations, with reference to nine photographs of the site taken on that date. Those photographs depict the C&D debris on the site, including wood and metal. On December 5, 1989 Victoria DeCarlo (then Environmental Engineer I) inspected the site. DeCarlo observed material consisting primarily of shredded C&D debris, wood and pipes, and also yard waste, a tire, plastic bags, plastic bottles and springs. Ajay Shah, Region 1 Hazardous Waste Remediation Engineer, testified that he inspected the site on two occasions, October 21, 1991 and February 3, 1993At the time of his first inspection, Shah was assigned to the Department's Region 3 Office as a Senior Environmental Engineer in the Division of Solid Waste; At the time of this inspection, he had been promoted to the position of Regional Hazardous Substances Engineer, in the Department's Region 3 Office.. His testimony corroborated the testimony of other Staff witnesses regarding types of material present at the site.

        Therefore, as a factual matter, this report concludes that Respondents transported non-exempt C&D debris to the site on, and prior to, December 1, 1989See Discussion IIA, above, discussion of Investigator Moran's stop of truck operated by Rossi; and finding of fact #9, which finds the debris included wood, glass, tile, metal and plastic.. Since Respondents' factual argument is rejected, their legal argument need not be reached. Respondents' affirmative defense based upon the 6 NYCRR Part 360-7.1(b)(1) must be rejected.

      2. Local Court Dismissal and the Doctrine of Res Judicata

        Res judicata is defined as the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties, and constitutes an absolute bar to an action. Black's Law Dictionary (5th Ed, 1979). Respondents assert that an alleged criminal violation brought by an undated appearance ticket (Answer, Exhibit B), has been dismissed by the Town of North Castle, Town Court; and therefore, under the doctrine of res judicata, cannot be considered in the present proceeding. Respondents have not shown that the undated appearance ticket relates to any charge contained in Staff's complaint. Nor does the court receipt produced by Respondents indicate whether the court's dismissal was merely procedural or on the merits.

        Respondents also assert that the doctrine of res judicata bars an administrative action against them for the same December 1, 1989 allegations charged in Staff's Complaint. Respondents produced a receipt from the North Castle Town Court indicating dismissal of four appearance tickets issued by Staff on December 1, 1989. However, the receipt produced by Respondents does not indicate whether the court's dismissal of the four appearance tickets was merely procedural or on the merits.

        Even if dismissal of the criminal matter was on the merits, different standards of proof apply to criminal and civil (administrative) actions and the two types of actions are distinct. The penal law does not operate to bar or otherwise affect any right to damages, penalty or other remedy authorized by law to be recovered or enforced in a civil action regardless of whether the conduct involved in such civil action also constitutes a penal offense. (See, generally, Penal Law 5.10[3]). The doctrine of res judicata is unavailable to bar a civil administrative action based upon the existence, or disposition of a criminal proceeding regarding the same acts or incident.

      3. Statute of Limitations and Laches

        Respondents assert that Staff's Complaint is untimely, in violation of SAPA 301(1). That section provides that, "[i]n an adjudicatory proceeding, all parties shall be afforded an opportunity for hearing within a reasonable time." The statute does not define any fixed time period to be measured, and therefore is really more analogous to a common law laches claim. Respondents presented no argument in furtherance of a separate laches claim.

        The Court of Appeals has stated that SAPA 301(1), "requires an agency to commence a hearing within a reasonable time of the date of commencement of the adjudicatory proceeding." Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, 179 495 NYS2d 927 (1985).

        In Cortlandt, the Court identified four factors to be weighed in determining such a claim: (1) the nature of the private interest allegedly compromised by the delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by governmental regulation. Cortlandt at 178.

        In Cortlandt, the Court specifically stated that even a delay of 10 years before an agency reached a final decision would not be unreasonable as a matter of law. Here, the delay is less than four years (i.e., from December 1, 1989, when Staff first became aware of the alleged illegal conduct). This is not an unreasonable delay, on its face.

        More importantly, the Cortlandt court stated that delay alone is not sufficient to warrant dismissal. Cortlandt, supra at 181. Instead, the private party must demonstrate that the delay resulted in substantial prejudice, significantly and irreparably handicapping the private party from mounting a defense in the adversarial administrative proceeding. Cortlandt supra at 180. Respondents have not even asserted substantial prejudice in mounting a defense based upon the delay. Accordingly, Respondents' claim under SAPA 301 is wholly unpersuasive and must be rejected.

RELIEF

  1. CIVIL PENALTIES

    ECL 71-2703(1) provides for a maximum civil penalty in the amount of Two Thousand Five Hundred ($2,500.00) Dollars for each violation of ECL Article 27, Title 7, or rules or regulations issued pursuant thereto, and an additional penalty of not more than One Thousand ($1,000.00) Dollars for each day during which such violation continues.

    ECL 71-2703(3) provides that any person who violates the provisions of, or fails to perform any duty imposed by ECL Article 27, Title 7, or rules or regulations issued pursuant thereto, with regard to the construction and operation of facilities for the disposal of C&D debris, shall be liable for a maximum civil penalty of Five Thousand ($5,000.00) Dollars for each violation; and that each day of such deposition shall constitute a separate violation, and this civil fine is in addition to any other fines or penalties which may be imposed pursuant to ECL Article 71, Title 27.

    In its closing memorandum, Staff revised its request for monetary penalties, seeking $54,000. rather than $59,000. against Respondent Rattenni. (A copy of Staff's revised Penalty Calculation is attached as Exhibit A). Staff has proven that Respondent Rattenni operated an unpermitted SWMF C&D debris landfill at the site from at least December 1, 1989 (the date of Staff's initial assessment of the site) until February 3, 1993 (the date of its most recent assessment of the site), a period of 1160 days. Staff has also shown that Respondents committed other violations, including continuing operational violations, related to their illegal operation of the site. As Staff has noted in its memoranda, the maximum penalty which may be imposed in this action exceeds 1.4 million dollars, far in excess of the $64,000 total monetary penalty Staff seeks to have imposed upon Respondents.

    The Commissioner's Civil Penalty Policy (Enforcement Directives, No. II, issued 6/20/90) states that undertaking any action which requires a DEC permit, without first obtaining that permit, is always a serious matter, not a mere technical or paperwork violation, even if the activity is otherwise in compliance. (Civil Penalty Policy, page 8). In the present case, an aggravating factor is that Respondents were not otherwise in compliance, but also committed related operational violations. At the same time, Respondents did not seek to wholly abandon the waste, but instead deposited it on Rattenni's residential property (where he will first experience the effects of any environmental harm resulting from the illegal activity). It follows that in weighing the seriousness of this violation, circumstances do not warrant escalation to the extent that, for example, midnight dumping of solid waste would warrant. Therefore, in weighing these factors and viewing the record as a whole, I find that penalties sought by Staff are appropriate to the violations proven in this matter.

    RESPONDENT A-1:

    Staff seeks a penalty of $2,500. regarding violation by Respondent A-1 of ECL 27-0712(2) on December 1, 1989. This maximum penalty is warranted in light of A-1's history of prior violations, evidenced by the 1990 Consent Orders.

    RESPONDENT RATTENNI:

    Pursuant to ECL 71-2703(1), the maximum penalty which could be imposed regarding Respondent Rattenni's continuing violation of 6 NYCRR Part 360-1.7(a)(1)(ii) from December 1, 1989 until at least February 3, 1993 is $2,500. for December 1, 1989, plus $1,000. per day for the additional 1,159 days (i.e., December 2, 1989 to February 3, 1993), $1,159,000. Additional penalties may be imposed pursuant to ECL 71-2703(3). Staff has requested a penalty of $38,500. under ECL 71-2703(1), computed by deleting a portion of the relevant time period, during which time Respondents and Staff were engaged in settlement negotiations; further, Staff only seeks daily penalties for a period of only 34 days during the relevant time period. Lastly, Staff seeks a penalty of $5,000, pursuant to ECL 71-2703(3), a sub-total of $43,500.

    Staff seeks a penalty of $3,500. regarding Respondent Rattenni's violation of 6 NYCRR Part 360-7.10(g), for violations noted by Ajay Shah in his inspections of 10/21/91 and 2/3/93.

    Staff seeks a penalty of $3,500. regarding Respondent Rattenni's violation of 6 NYCRR Part 360-1.14(e), for violations noted by Ajay Shah in his inspections of 10/21/91 and 2/3/93.

    Staff seeks a penalty of $3,500. regarding Respondent Rattenni's violations of 6 NYCRR Part 360-7.10(d), (e) and (f), and 6 NYCRR Part 360-7.9(i), for violations noted by Ajay Shah in his inspections of 10/21/91 and 2/3/93.

    In sum, Staff seeks a total monetary penalty of $54,000. to be imposed upon Respondent Rattenni for violations of 6 NYCRR Part 360.

  2. REMEDIATION

    In addition to a monetary penalty, Staff also seeks an order requiring that Respondents perform remedial investigation, remediation and closure of the site, consistent with the provisions of 6 NYCRR Part 360 (including Sections 360-2.11 and 360-2.15). Staff presented limited evidence at hearing regarding potential environmental harm at the site via the testimony of both Shah and DeCarlo. Primarily, they described the potential for groundwater contamination as a result of uncontrolled leachate generation.

    Since Staff has proven that Respondents created the illegal landfill, it is presumed that Respondents should subject the site to remedial investigation, remediation and closure, unless factors to the contrary are shown to exist. Respondents have not shown that any such factors exist in this case. Therefore, remedial investigation, remediation and closure of the site is an appropriate remedy in this case.

  3. PERMIT REVOCATION AND DENIAL

    Staff seeks to have Respondent A-1's Departmental permits revoked, (and Respondent's applications for renewals and modifications denied). The basis of Staff's permit revocation and permit denial action is its assessment that Respondent A-1 is unsuitable and unfit to hold environmental permits within the Department's purview. Staff asserts that this assessment necessarily includes an assessment of Respondent Rattenni's suitability and fitness, since he is the sole shareholder, and therefore owner, of A-1, and also is a high managerial agent of A-1 due to his roles as President and chief financial officer of A-1. Staff asserts three bases for a determination that A-1 is unsuitable and unfit to hold Departmental permits: (1) Complaint violations proven in this consolidated action; (2) Respondents' federal conspiracy and bribery convictions; and Respondent A-1's history of violations, including two offenses in 1990 for transporting uncovered solid waste.

Staff's Pre-filed Case

Staff filed its direct case regarding Respondents' suitability and fitness (other than those allegations contained in Staff's Complaint, which are also asserted as a basis for revocation and denial of Respondents' permits) on September 17, 1993. That evidence includes the following documents (as well as supporting documentation):

* Two Consent Orders which A-1 entered into with the Department in 1990: Consent Order No. W3-0479-90-02 (dated June 5, 1990) resolved a violation of ECL 27-0712(2), transporting solid waste (C&D debris and putrescible waste) without a cover, which occurred on February 8, 1990 (for which a penalty of $1,000.00 was assessed against Respondent A-1); Consent Order No. W3-0422-90-01 (dated August 13, 1990) resolved a separate violation of ECL 27-0712(2), transporting solid waste without a cover, which occurred on January 2, 1990 (for which a penalty of $500.00 was assessed against Respondent A-1).

* A certified copy of Respondent Rattenni's federal district court judgment of conviction for bribery (18 uSC 371) and conspiracy to commit bribery (18 uSC 666) in April, 1991, (Judgment entered, July 20, 1992 [SDNY]).

* A certified copy of Respondent A-1's federal district court judgment of conviction for bribery (18 uSC 371) and conspiracy to commit bribery (18 uSC 666) in April, 1991, (Judgment entered, July 20, 1992 [SDNY]).

Accompanying the pre-filed evidence was a memorandum of law in support of Staff's denial/revocation determination. Opposing counsel had no objection to receipt of this pre-filed documentation into evidence, but requested (and was granted) leave to submit a memorandum of law asserting legal issues in opposition to Staff's permit revocation/denial case (Respondents had an opportunity to address those matters, as well as the proof adduced at the November 16, 1993 hearing, in Respondents' initial and reply memoranda).

Staff's Supplemental Filings

Subsequently, by letter dated October 25, 1993, Staff sought to supplement this evidence, by submitting copies of two simplified informations returnable in Yonkers City Court, alleging transport violations by an A-1 truck in the City of Yonkers on October 21, 1993, consisting of transporting regulated waste without a permit [6 NYCRR 364.2(a)(2)] and failure to display permit numbers on side of trailer [6 NYCRR 364.6]. The documents were offered as additional proof of Respondents' lack of suitability and fitness to hold environmental permits.

However, Staff did not move to amend its Complaint to include those charges in the present consolidated action. Nor did Staff otherwise present any evidence to prove that those alleged violations occurred, as they have done with respect to other evidence regarding Respondents' suitability and fitness. until proven, these allegations have no bearing on Respondents' suitability and fitness in the present consolidated action pursuant to 6 NYCRR 621.14, such allegations may form the basis for suspension of a permit (but not denial or revocation), or suspension of processing a permit application (but not denial). Staff has not invoked this authority in the present matter regarding Respondent A-1's pending Part 360 and 364 renewal applications, nor regarding Respondents' Part 360 modification applications.. Therefore, the October 21, 1993 Yonkers allegations have been given no weight in this consolidated action.

  1. Respondents' Procedural Challenges to Departmental Authority to Revoke Permits or Deny Permit Applications

    The State Administrative Procedures Act and the Record of Compliance Enforcement Guidance Memorandum

    As a legal defense to the revocation/denial aspect of the case, Respondents assert that the Record of Compliance Enforcement Guidance Memorandum (ROCEGM)the term "compliance history" is utilized in the ROCEGM to include not only an entity's history of compliance with the Department's regulatory programs, but also all other relevant history of that entity. is an unpromulgated rule, in violation of the State Administrative Procedures Act (SAPA). To support their claims that the ROCEGM must be promulgated as a rule, Respondents cite, by way of example, State Alcohol and Beverage Control Law (ABCL) 118 and 126, which identify specific activities, including types of criminal conduct, which will result in revocation of a liquor license. However, the cited ABCL provisions are distinguishable from the ROCEGM, because they identify circumstances mandating revocation or denial of a liquor license, whereas the ROCEGM provides guidance on discretionary revocations and denials. The initial clause of ABCL 118 addresses both discretionary and mandatory revocations. Regarding discretionary determinations, ABCL 118 states generally that any license or permit issued pursuant to the ABCL may be revoked, canceled, suspended and/or subjected to the imposition of a civil penalty for cause. .

    The ROCEGM establishes no fixed standards of general applicability. It does not mandate permit revocation or denial in any particular instance. Instead, the ROCEGM is a policy document available to the public, which addresses how a permittee's (or permit applicant's) history may (or may not) be rationally related to Departmental permit determinations.

    Departmental authority to evaluate a permittee's/applicant's suitability and fitness can be traced back to New York's common law, and does not derive from the ROCEGM document. Matter of Barton Trucking Corp. v O'Connell, 7 NY2d 299, 307, 197 NYS2d 138 (1959) [All the relevant case law in this state expressly or impliedly holds that the licensing official has implicit discretion to pass on the fitness of an Applicant].

    The ROCEGM must be evaluated as applied in a particular case, and not in the abstract. The document explicitly states that it "...is to be applied in context with all existing statutes, regulations, and guidance memoranda." (ROCEGM p.2). Therefore, any party may assert the applicability or lack of applicability of any principle set forth in the guidance. If the ROCEGM supports a position more favorable to Respondents, Respondents could have asserted that position in opposition to Staff's position. Here, Respondents have chosen not to do so.

    For the above reasons, Respondents' assertion that the ROCEGM is an unpromulgated rule must be rejected.

    Relationship of 621.14(a) and the Record of Compliance Enforcement Guidance Memorandum

    As stated above, the ROCEGM is not an unpromulgated rule, but instead is a guidance document addressing how a permittee's relevant history may be rationally related to Departmental permit determinations. Application of principles enunciated in the ROCEGM to the facts of a particular case must, however, be consistent with the provisions of 6 NYCRR Part 621. Here, Staff has properly related its basis for revocation to factors identified in 6 NYCRR 621.14. Further, pursuant to 6 NYCRR 621.9[f], those factors apply to permit denial determinations as well. (See, also, Matter of American Transfer Company, Commissioner's Interim Decision (February 4, 1991) [Authority to modify, suspend or revoke permits based on factors set forth in 6 NYCRR 621.14(a), may also form the basis to deny a permit application in the first instance; any other conclusion would confound public policy objectives and create gross inefficiencies in the permitting process]).

    Constitutional Due Process

    Respondents assert two constitutional due process arguments. First, Respondents assert that the ROCEGM is self-contradictory and subject to contradictory interpretations, thereby making it vague and overbroad, in violation of constitutional due process. Secondly, Respondents assert that the Department must, by law or regulation, place permittees on notice of the consequences of a criminal conviction upon their permit/permit application.

    The substance of these arguments have been addressed in the two preceding sections which address Respondents' statutory and regulatory arguments. Constitutional issues generally are not to be resolved in the administrative forum, but instead must be submitted to a judicial tribunal. See, In the Matter of Seaboard, Supplemental Decision of the Commissioner [July 22, 1992], citing, Matter of Di Maggio v Brown, 19 NY2d 283, 291-292, 279 NYS2d 161, 225 NE2d 871 [1967].

  2. Analysis of Respondent A-1's Compliance History

    The ROCEGM may provide guidance in both revocation determinations and denial determinations. In this analysis, the focus is on whether there is a rational relationship between the entity's relevant history and its ability to perform within the requirements of the permit at issue. As stated above, Staff essentially asserts three bases for a determination that A-1 is unsuitable and unfit to hold Departmental permits: (1) Complaint violations proven in this consolidated action; (2) Respondents' federal conspiracy and bribery convictions; and Respondent A-1's history of violations, including two offenses in 1990 for transporting uncovered solid waste. Therefore, the following sections analyze relevant factors of Respondent A-1's compliance history.

    1. Applicability of Respondent Rattenni's History

      The determination to deny or revoke a permit should not be undertaken lightly. The question of whether to revoke or deny permits based on lack of suitability or fitness of the Applicant is one which requires a careful balancing of both factual and policy considerations. In applying the Record of Compliance guidance to particular cases, the Commissioner has made a distinction between cases where the applicant/permittee is an individual and instances where the applicant/permittee is a corporation or other business entity. Application of the ROCEGM's principles to a large publicly traded corporation differ from application to a closely held corporation. A closely held corporation (or close corporation) is a corporation whose shares, or at least voting shares, are held by a single shareholder or closely-knit group of shareholders. Generally, there are no public investors and its shareholders are active in the conduct of the business. Black's Law Dictionary, p.308 Fifth Edition [1979]. .

      The Commissioner previously addressed these issues in Seaboard Contracting & Materials, Inc. (Issued January 31, 1991), Matter of CECOS International, Inc., (Decision of Commissioner, Mar. 12, 1990) and Matter of American Transfer Co. (Decision of Commissioner, December 24, 1991). The Seaboard and American Transfer cases, are most applicable to the present action, because the purportedly controlling "person" in both Seaboard and American Transfer was an individual rather than a business entity, whereas in CECOS, the purportedly controlling persons were business entities.

      Respondents assert that an outcome resulting in revocation/denial of their permits and applications would be unfair, in light of permits issued to corporate entities with extensive histories of non-compliance such as Browning Ferris Industries and Waste Management, Inc. However, because these companies are large, publicly held corporations with numerous officers and employees, the Commissioner analyzed the corporation's compliance history within New York, and also evaluated whether the corporate officers or employees responsible for the past non-compliance would be the same officers or employees responsible for, or able to exert influence over, corporate activity in the future, under the subject permit.

      Ultimately, the analysis must focus on whether the control exercised by an individual or related business entity is likely to impede or preclude the applicant from complying with the permit conditions and associated law and regulation. A second analysis, not relevant in this case, would focus on whether instances of non-compliance result from a "corporate culture". . The issue is the level of control which the individual or related entity exercises over the permittee/applicant. This, in turn, bears upon the permittee's or applicant's trustworthiness to comply with permit conditions and related law and regulation. (See, generally, CECOS, supra and American Transfer, supra).

      Each determination of suitability and fitness is necessarily specific to the facts and circumstances of the particular permittee/applicant. In the present matter, Respondent Rattenni wholly owns A-1 and therefore exercises complete control over the corporation. Further, in his capacities as President and chief financial officer of A-1, he is a high managerial agent of the corporation. under these circumstances, Rattenni will exercise managerial control under any existing permits or newly granted permits or permit modifications issued to A-1. Accordingly, for purposes of assessing suitability and fitness, Respondents' permit interests are essentially identical, as Respondents have conceded in their memoranda. Therefore, Respondent Rattenni's past acts are properly considered in assessing A-1's suitability and fitness.

    2. The Federal Convictions of Respondents A-1 and Rattenni

      Respondents A-1 and Rattenni were each convicted of both counts of a two count federal criminal indictment, by jury trial. The indictment is a seven page document, describing in detail the allegations brought against the defendants. Briefly, the indictment charges three co-defendants including Respondents with conspiring to commit bribery, and bribery. It alleges that Respondents Rattenni and A-1, and a third party, Peter Hargrove (then an employee of Respondent Rattenni), during the time period of January, 1986 through May 7, 1991 unlawfully, willfully and knowingly conspired and agreed together and with each other to commit federal offenses by corruptly giving, offering, and agreeing to give merchandise and other things of value in excess of $10,000.00 (primarily, winter holiday turkeys, hams and liquor) to New York State Police Troopers (an agency receiving federal funding), intending that the Troopers be influenced and rewarded in connection with the ticketing of garbage trucks and other vehicles for violation of the traffic laws of the State of New York (count one, conspiracy); and that the co-defendants did so (count two, bribery).

      Respondent Rattenni was sentenced to a term of four months incarceration followed by two years, four months of home confinement (probation), and was fined $10,000.00. Respondent A-1 was sentenced to pay a fine of $40,000.00. The last page of Respondent Rattenni's five page Judgment of Conviction indicates that the court adopted the application of federal sentencing guidelines recommended in the presentence report, except that the Court used 2Cl.2 - giving a gratuity rather than 2Cl.1 - giving a bribe.

      In response to Staff's proof, Respondents assert that Rattenni's federal felony conviction is a misdemeanor crime under New York State law, and therefore is a less serious offense. Citing u.S. v Crozier, 987 F2d 893 (Second Circuit [March 1, 1992]), Respondents assert that in actuality, they were not convicted of "giving a bribe", but were convicted of the less serious federal offense of "giving a gratuity", included within the federal bribery statute. They conclude that in evaluating the impact of these convictions on Respondents' fitness and suitability to hold Departmental permits, the bribery charge should be given less weight because the analogous New York State offense (giving a gratuity, N.Y. Penal Law 200.30) is a misdemeanor crime, not a felony.

      Respondents' focus on whether the offense is a felony or a misdemeanor under New York law is not directly relevant. Instead, in assessing suitability and fitness, the focus should be on whether, in what manner and to what extent the conduct at issue reflects upon Respondents' trustworthiness to engage in future environmentally regulated activities within the Department's purview. Therefore, the felony/misdemeanor distinction is collateral to an evaluation of the substance of the offense as it relates to trustworthiness.

      Governmental Review of Respondents' Federal Convictions

      Respondents have provided documents, attached as exhibits to their initial memoralaw. Althoughpondents offered this documentation after resting their case, I am admitting thesndum of law.e documents into the record to provide a more complete record on the issue of suitability and fitness in this action. Further, Staff has voiced no objection regarding Respondents' offer of the documentation. Therefore, the exhibits were considered as documentary evidence in this action. In part, these documents show that the County of Westchester unsuccessfully sought to revoke a pistol permit issued to Respondent Rattenni based upon his federal convictions; and separately, that the County issued a Solid Waste Recyclables Collection license to Respondent A-1 after review of Respondents' federal felony convictions.

      Respondents seek to analogize between the County permit determinations and the present action, placing great importance upon a New York State Supreme Court ruling that, under New York law the federal felony convictions are misdemeanor crimes rather than felony crimes. At the outset, it must be stated that issuance of a pistol permit is at best only tangentially related to issuance of Departmental environmental permits. However, for purposes of the County agencies' review, evidence of a felony conviction would be tantamount to a determination of denial or revocation. The primary focus of this administrative review is to evaluate whether there is a rational relationship between Respondent A-1's history of non-compliance and its ability to perform the duties and responsibilities concomitant with the granting of an environmental permit by the Department.

      As described above, the federal convictions of Respondents Rattenni and A-1 are based upon holiday season gifts to state troopers on weigh station detail. Although the value of those gifts was large (in excess of $10,000. in one year), the Court noted at sentencing that evidence at trial showed that this practice of holiday gifts to NYS Police weigh station staff was a long standing industry-wide practice. No environmental damage occurred as a result of Respondents' federal crimes, and Respondents have been sentenced by the federal Court. Staff has not provided any evidence to show that Respondents have not been rehabilitated as a result of their federal sentences.

      Staff is correct that the federal court's sentencing comments are not binding upon the Department. However, while the sentencing comments of the federal Court trial judge are not a substitute for the jury verdict and are not binding on this Department, it does not follow, as Staff asserts, that those comments should be ignored. In the present action, these comments suggest that Respondents' federal offenses should not be weighed as heavily against them as might otherwise be the case.

    3. Complaint Violations Proven In the Present Action

      Staff has sufficiently shown that Respondents have created an illegal C&D debris landfill of substantial size on property owned by Respondent Rattenni. Staff has also proven that Respondent Rattenni has committed the violations of failing to minimize leachate; failing to control access to the site, failing to apply cover material, final cover and vegetative cover; and that Respondent A-1 has transported an uncovered load of C&D debris. As has been noted above, the Commissioner's Civil Penalty Policy (Enforcement Directives, No. II, issued 6/20/90) states that undertaking any action which requires a DEC permit, without first obtaining that permit, is always a serious matter, not a mere technical or paperwork violation, even if the activity is otherwise in compliance. (Civil Penalty Policy, page 8).

    4. The 1990 Consent Orders

      Respondents' history of non-compliance includes two consent orders entered into between Respondent A-1 and the Department in 1990, to resolve charges of transporting solid waste without a cover. Staff provided no evidence in elaboration of the consent orders, which are one- and two-page fill-in-the-blank forms. These violations, while not totally discounted, appear to be relatively minor violations within the regulatory program and, taken alone, do not rise to the level of non-compliance necessary to trigger the extraordinary relief of permit revocation/denial.

    5. Other Factors

      Respondents assert that an outcome of revocation and denial would be unfair, in light of the Department's response to other unpermitted landfills in the state. Respondents have attached documents to their initial memorandum, which include newspaper reports, Staff inspection reports and other documentation showing the existence of other unpermitted landfills, and in some instances, indicating settlement with the Department by Consent Order (Ex's K through R). However, Respondent's conclusory argument based upon this documentation is not nearly sufficient to demonstrate that Respondents' position is comparable to those other persons, or that the circumstances and conditions at Respondents' landfill is comparable to any of these other landfills.

      In Seaboard, the Commissioner made it clear that an analysis of the managerial relationship between the applicant (or permittee) and persons with a history of non-compliance must consider what, if any, mitigation measures either the permittee/applicant or the managerial person have taken to assure prospective compliance. In the present matter, Respondents have taken no measures to perform remedial investigation, remediation or closure of the unpermitted landfill since December, 1989 when they claim to have ceased depositing additional C&D debris at the site.

      It is significant that Respondents have a history of substantial compliance with requirements of their transfer station and transporter permits over a period of years, until the activities proven in the present enforcement complaint. Further, Respondents assert that Staff's neglect to initiate an enforcement proceeding until the present, indicates the alleged offenses were not a high priority for Staff. In fact, the record in this consolidated action shows that Staff has issued permits to Respondents subsequent to the December, 1989 incident described in the Complaint. A modification to Respondent's permit to construct a SWMF was issued on March 15, 1991 and a renewal of Respondent's transporter permit on February 27, 1992. Staff had substantially the same information before it on those dates, and yet has provided no explanation for its choice not to suspend, revoke or deny permits to Respondents until the present action.

      Lastly, in their memoranda, Respondents asserted a number of other mitigating factors, but failed to provide any factual basis in the record to support those claims. Therefore, those factors are given no weight in this action.

    6. Conclusion

      In evaluating the two primary factors which Staff asserts as grounds for revoking/denying Respondents' permits (i.e., the federal convictions and the illegal landfill), I give each less weight than Staff seeks. Regarding the effect of violations proven in this proceeding, the illegal landfill appears to be a singular incident. Respondents did not seek to wholly abandon the waste, but instead deposited it on Rattenni's residential property. Therefore the circumstances of this incident are not an escalating factor as might be the case under other circumstances (such as midnight dumping, for example). Rattenni, as one party responsible for deposition of the debris at the site, and as owner of the property, remains responsible for lawful disposition of the solid waste. It follows that in weighing the seriousness of this violation, circumstances do not warrant escalation to the extent that, for example, midnight dumping of solid waste would warrant. Therefore, in weighing these factors and viewing the record as a whole, I find that penalties sought by Staff are appropriate to the violations proven in this matter.

      Regarding the federal convictions, documents submitted by Respondents show that the giving of gifts was common practice in the trucking industry at the time. No environmental damage occurred as a result of Respondents' federal crimes, and Respondents have been sentenced by the federal Court. Staff has not provided any evidence to show that Respondents have not been rehabilitated as a result of their federal sentences, and Respondents have otherwise substantially complied with their previously issued Departmental SWMF and transporter permits.

      Staff is correct that the federal court's sentencing comments are not binding upon the Department. However, while the sentencing comments of the federal Court trial judge are not a substitute for the jury verdict and are not binding on this Department, it does not follow, as Staff asserts, that those comments should be ignored. In the present action, these comments suggest that Respondents' federal offenses should not be weighed as heavily against them as might otherwise be the case.

      Obviously, Respondents are far from ideal permittees/applicants. However, this assessment of the federal convictions and the illegal landfill, the two primary factors cited by Staff, even when considered with Respondents' other relevant history, do not demonstrate a lack of trustworthiness sufficient to warrant the extremely severe sanction of revocation and denial of Respondents' permits and permit applications. Nevertheless, it would behoove Respondents to evaluate carefully the duties and obligations that are concomitant upon holding Departmental permits.

      Respondents' history is such that any future substantial non-compliance, including violation of the Commissioner's Order to be issued in this consolidated action, will be most seriously considered in any future application by Staff to review Respondents' suitability and fitness to engage in regulated activities within this Department's purview.

RECOMMENDATIONS

Upon consideration of the foregoing, and upon a complete review of the entire record of this consolidated action, it is recommended that:

  1. The charges against Respondent Rattenni of violating 6 NYCRR 360-1.7(a)(1)(ii), 6 NYCRR 360-7.10(g), 6 NYCRR 360-1.14(e), 6 NYCRR 360-7.10(d), (e) and (f), and 6 NYCRR 360-7.9(i) should be sustained.
  2. A monetary penalty in the amount of Fifty Four Thousand ($54,000.) Dollars, due and payable within thirty days of service of a conformed copy of the Order, should be assessed against Respondent Rattenni.
  3. The two charges against Respondent A-1 of violating 6 NYCRR 360-1.5(a)(2) on December 1, 1989 [Sullivan and Vitale] are referred to the Commissioner to determine whether an offense of attempted disposal is within the meaning of ECL 27-0303(1) and 6 NYCRR 360-1.5(a)(2).
  4. The charge against Respondent A-1 of violating ECL 27-0712(2) on December 1, 1989 [Rossi] should be sustained.
  5. The charge against Respondent A-1 of violating ECL 27-0712(2) on December 1, 1989 [Vitale] should be dismissed.
  6. A monetary penalty in the amount of Two Thousand and Five Hundred ($2,500.) Dollars, due and payable within thirty days of service of a conformed copy of the Order, should be assessed against Respondent A-1.
  7. 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 6 NYCRR Part 360, in accordance with the recommendations of, and subject to approval of, Department Staff.
  8. Staff's intent to revoke and deny Respondents' permits and permit applications should be denied. Instead, Respondents' permits and permit applications should be remanded to Staff for further evaluation and processing.
  9. Respondents should be strongly cautioned that failure to timely, fully and satisfactorily complete compliance with all terms and conditions of the Commissioner's Decision and Order in this consolidated action will be most seriously considered in any future action by Staff to review Respondents' suitability and fitness to engage in regulated activities within this Department's purview.
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