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Agramonte, Helen and Penelope - Ruling, October 16, 2003

Ruling, October 16, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged
Violations of Article 27 of the
Environmental Conservation Law
of the State of New York by
WITHOUT HEARING

RULING ON DEPARTMENT
STAFF'S MOTION FOR ORDER

HELEN AGRAMONTE and

PENELOPE AGRAMONTE,

Respondents.
Case No. R4-2001-0130-25

SUMMARY

Staff of the Department of Environmental Conservation ("Department Staff") moved for an Order Without Hearing against Respondents, Helen Agramonte and Penelope Agramonte ("Respondents") for a violation of Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste) of the New York State Environmental Conservation Law ("ECL"), and Section 360-13.1(b) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Department Staff alleged that Respondents own property in the Town of Wright, Schoharie County (the "Site"), where Respondents are storing approximately 90,000 waste tires.

For the reasons set forth below, the motion is granted. Nevertheless, because a triable issue of fact exists as to the amount of civil penalties to be imposed, a hearing should be held to determine the amount of penalties to be recommended to the Commissioner. 6 NYCRR Section 622.12(f).

PROCEDURAL HISTORY

On July 8, 2002, Department Staff served a Motion for Order Without Hearing on Respondents, and filed that motion with the Office of Hearings and Mediation Services on September 24, 2002. Department Staff's motion was made pursuant to 6 NYCRR Section 622.12. In support of the motion, Department Staff submitted the affidavit of George Elston, a solid waste technician in the Department's Region 4 office, sworn to June 25, 2002 (the "Elston Affidavit"). Respondents obtained an extension of time to serve a response, and Respondents' affidavits in opposition, sworn to November 5, 2002, were filed on November 6, 2002. Respondents also requested an opportunity to mediate this matter, and Department Staff agreed. The matter was adjourned to allow for mediation and settlement discussions. This effort was unsuccessful, and Department Staff requested a ruling on the motion.

POSITIONS OF THE PARTIES

In its motion, Department Staff alleges that Respondents own property on Route 146, in the Town of Wright, Schoharie County, where approximately 90,000 waste tires are being stored. According to Department Staff, Respondents have owned the Site since 1997. The Elston Affidavit states that on March 19, 1990, Richard Agramonte of A & A Recycling, the husband of Penelope Agramonte and the son of Helen Agramonte, entered into an Order on Consent (the "1990 Order") with the Department. The Order on Consent, which is included in Department Staff's motion papers as Attachment 1 to the Elston Affidavit, required Mr. Agramonte to comply with the requirements of 6 NYCRR Part 360, respond to a Notice of Incompleteness, and submit a complete application for his waste tire storage facility.

The Elston Affidavit also includes as Attachment 2 a second Order on Consent, dated May 1, 1991. The second Order required Mr. Agramonte to remove all of the tires from the Site to a permitted solid waste management facility by June 30, 1991. According to the Elston Affidavit, Mr. Agramonte did not comply with the second Order, and died in or about 1996.

The Elston Affidavit goes on to state that Department Staff inspected the Site on several occasions between June, 1991 and the date of the Affidavit. Mr. Elston states that he first inspected the Site in April, 1996, and that he inspected the Site most recently on March 1, 2001 and September 13, 2001. During those inspections, a large number (approximately 90,000) waste tires were observed on the Site. The Elston Affidavit states further that the Department's files contain no record of any permit being issued to Respondents to operate a waste tire storage facility. According to the Elston Affidavit, Mr. Elston drove by the Site many times, and each time he observed no appreciable difference in the number of tires at the Site.

With respect to the environmental harm that can be anticipated from the presence of the tires, the Elston Affidavit contends that the tires at this unsecured Site pose a fire hazard, with the potential for significant harm to the environment as a result of air emissions from burning tires and the release of petroleum (approximately two gallons per tire) from the tires as they are heated. In addition, the waste tires provide an optimal breeding ground for mosquitos that may carry the West Nile virus. Department Staff seeks an $8,000 penalty, and requests that the Commissioner order Respondents to remove all solid waste from the Site within 180 days and, within thirty days of proper disposal of the waste, provide Department Staff with copies of the disposal receipts.

Department Staff contends that the penalty requested is appropriate, citing to ECL Section 71-2703(1)(a), which provides that any person who violates Articles 3 or 7 of Article 27, or any rule or regulation promulgated pursuant to that Article, is subject to penalties of up to $5000 for each violation, and an additional penalty of not more than $1000 per day for each day the violation continues. Relying upon this provision, Department Staff calculates the maximum penalty that could be imposed in this matter to be $454,000, based upon 450 days of violation, commencing March 1, 2001 and ending May 24, 2002. The Elston Affidavit also calculates an economic benefit component as a result of Respondents' non-compliance. This calculation assumes that the cost of tire removal and disposal is at least $90,000, and that Respondents have avoided the costs of cleanup since March 1, 2001. Using an interest rate of eight percent per year, the Elston Affidavit states that, during a one year and four month period, Respondents avoided cleanup costs of $8,000.

Respondents' November 26, 2001 submission includes an Affidavit in Opposition sworn to by Penelope Agramonte on November 5, 2002 (the "Agramonte Affidavit"). The Agramonte Affidavit states that Respondent Penelope Agramonte inherited the property from Richard Agramonte, who died in 1993, and states further that Respondent Helen Agramonte, who is 85 years of age, and in failing health, was unable to submit an affidavit on her behalf.

In her Affidavit, Respondent Penelope Agramonte contends that she never operated the property, nor was she involved in the disposal of tires. Ms. Agramonte states that she has attempted to resolve this matter with Department Staff, and submitted a proposal on September 25, 2001 which would involve the construction of a pond as well as shale roadways to provide the fire department with access to the tire piles, and the removal of all vegetation in the vicinity of the tires. According to the Agramonte Affidavit, the estimated cost of this work would be about $13,000. Ms. Agramonte states further that she inquired of Department Staff whether it would be better to apply that money to tire removal, and that she also participated in two conferences with Department Staff in an effort to reach a resolution.

Finally, the Agramonte Affidavit indicates that, since August 1, 2002, approximately 600 tires have been removed from the Site each month at Ms. Agramonte's expense, at a cost of six hundred dollars per month. Ms. Agramonte states that she anticipates that the removal will continue on a monthly basis, until all of the tires have been removed.

FINDINGS OF FACT

The facts determinable as a matter of law are as follows:

  1. Respondents own property on Route 146, in the Town of Wright, Schoharie County, where approximately 90,000 waste tires are being stored. Respondent Penelope Agramonte inherited the property from her late husband, Richard Agramonte.
  2. On March 19, 1990, Richard Agramonte of A & A Recycling, the husband of Penelope Agramonte and the son of Helen Agramonte, entered into an Order on Consent (the "1990 Order") with the Department. The Order on Consent required Mr. Agramonte to comply with the requirements of 6 NYCRR Part 360, respond to a Notice of Incompleteness, and submit a complete application for his waste tire storage facility.
  3. Mr. Agramonte entered into a second Order on Consent, dated May 1, 1991, which required Mr. Agramonte to remove all of the tires from the Site to a permitted solid waste management facility by June 30, 1991. Mr. Agramonte did not comply with the second Order, and is now deceased.
  4. Department Staff inspected the Site on several occasions between June, 1991 and the date of the Affidavit. During those inspections, a large number (approximately 90,000) waste tires were observed on the Site.
  5. The Department's files contain no record of any permit being issued to the Respondents to operate a waste tire storage facility.
  6. The tires at this unsecured Site pose a fire hazard, with the potential for significant harm to the environment as a result of air emissions from burning tires and the release of petroleum (approximately two gallons per tire) from the tires as they are heated. In addition, the waste tires provide an optimal breeding ground for mosquitos that may carry the West Nile virus.
  7. Respondent Penelope Agramonte never operated the property, nor was she involved in the disposal of tires. Since August, 2002, approximately 600 tires have been removed from the Site each month at Ms. Agramonte's expense, at a cost of six hundred dollars per month. There is no evidence of any history of prior violations by either of the Respondents.

DISCUSSION OF RULING

Section 622.12(d) of 6 NYCRR provides that "[a] contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR [Civil Practice Law and Rules] in favor of any party." Section 622.12(e) provides that "the motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing." The first step in reviewing the motion for Order Without Hearing is to determine whether any factual disputes exist as to the Respondent's liability and the relief requested by Department Staff.

Waste tires are included in the definition of "regulated waste" pursuant to Article 27, Title 3 of the ECL, Section 27-0303(4). Section 360-13.1(b) of 6 NYCRR provides that "[n]o person shall engage in storing 1,000 or more waste tires at a time without first having obtained a permit to do so pursuant to this part." There is no dispute as to the presence or amount of the waste tires at the Site. Moreover, the parties do not dispute that Respondents own the Site, and that Respondents have no permit to operate a waste tire storage facility. Thus, Respondents' liability for the violations alleged in the motion is established. Nevertheless, as discussed below, a triable issue of fact exists as to the appropriate amount of civil penalties to be assessed in this case. Accordingly, a hearing should be held, pursuant to Section 622.12(f), to determine the amount of the civil penalty to be recommended to the Commissioner.

The penalty amount should be based upon a consideration of the factors enumerated in the Commissioner's Civil Penalty Policy, issued June 20, 1990 (the "Policy").(1) The starting point for a penalty calculation should be a computation of the potential statutory maximum for all provable violations, beginning with the day of the first provable violation and continuing to the date of compliance. The penalty assessed should be no less than the amount of economic benefit (the delayed and avoided costs) that accrued to the violator as a result of non-compliance.

The penalty will also include a "gravity component," which serves to increase the previously determined economic benefit amount. The gravity component is included because, in the Department's view, over and above removing the economic benefit of compliance, violators must be deterred. The Policy takes into account the gravity of the violation by providing for an assessment of the potential harm and actual damage caused by the violation, and the relative importance of the type of violation in the statutory scheme.

Once a preliminary gravity component is developed, it may be adjusted, based upon several factors, including: (1) the respondent's culpability; (2) the level of cooperation evidenced by the respondent; (3) the respondent's history of any past violations; (4) ability to pay; and (5) other, unique factors to be considered at the Department's discretion.

Department Staff does not dispute the assertions in Respondents' submissions in opposition to the motion, specifically, that Respondent Penelope Agramonte acquired the property by inheritance and was not involved in tire disposal at the Site, and that she has made significant attempts to cooperate with Department Staff, by submitting remedial plans, attempting to resolve the matter with Department Staff and, since August, 2002, arranging for the removal of approximately 600 tires per month from the Site. No evidence was introduced as to any history of past violations on the part of either of the Respondents. Nevertheless, Department Staff takes the position that tire removal at the present rate would not be adequate to address the environmental concerns at the Site. There is no documentation in the record as to the Respondents' ability to pay the penalty and the costs of the cleanup requested in Department Staff's motion.

As noted above, Department Staff seeks a penalty of $8,000. Department Staff asserts that the penalty sought is appropriate, given the statutory maximum penalty that could be assessed ($454,000), as well as the economic benefit ($8,000)that Department Staff contends Respondents realized as a result of non-compliance. According to Department Staff, "[t]his economic benefit places Respondents in an advantageous position over competitors who have completed tire removal and disposal work as required by the Department." Elston Affidavit, ¶ 10(b)(ii). This conclusion is questionable, given Ms. Agramonte's undisputed statement that she was never involved in her husband's tire disposal business, and acquired the property through inheritance upon his death in 1993. Nevertheless, the violation is significant, particularly in light of the potential harm resulting from the presence of a large number of tires at the site. As noted above, environmental damage may be anticipated in the event of a tire fire, and the tires themselves provide a breeding ground for mosquitos which may carry disease.

Section 622.12(f) provides that

t]he existence of a triable issue of fact regarding the amount of civil penalties which should be imposed will not bar the granting of a motion for order without hearing. If this issue is the only triable issue of fact presented, the ALJ must immediately convene a hearing to assess the amount of penalties to be recommended to the commissioner.

Given the lack of any evidence as to the basis for the economic benefit that Department Staff computed, and the Respondents' ability to pay, it is appropriate to grant the motion for order without hearing with respect to Respondents' liability, but, in addition, to find that a triable issue of fact exists as to the appropriate penalty amount. Accordingly, a hearing should be held pursuant to this provision.

CONCLUSION

  1. Respondents, Helen Agramonte and Penelope Agramonte, have violated Article 27 of the ECL and Section 360-13.1(b) of 6 NYCRR. Respondents own property in the Town of Wright, Schoharie County, and have been storing approximately 90,000 waste tires at the Site, without a permit to do so. This violation has continued from March 1, 2001 to the present.
  2. A civil penalty is authorized, pursuant to ECL Section 71-2703(1)(a), which provides that any person who violates Articles 3 or 7 of Article 27, or any rule or regulation promulgated pursuant to that Article, is subject to penalties of up to $5000 for each violation, and an additional penalty of not more than $1000 per day for each day the violation continues. In this case, there is a triable issue of fact as to the amount of civil penalties which should be imposed. Accordingly, a hearing should be convened to determine the recommended penalty amount.

RULING AND RECOMMENDATION

The Motion for Order Without Hearing is granted. A hearing should be held to assess the amount of penalties to be recommended to the Commissioner.

ORDER SCHEDULING HEARING

Within fifteen days of receipt of this ruling, counsel for Department Staff shall identify for me in writing the dates on which Respondent and the Department are available for the hearing. One day should be sufficient to adjudicate this issue. I will confirm the hearing date in writing. The hearing will commence at 10:00 A.M. at the Region 4 Offices of the Department, 1150 North Westcott Road, Schenectady, New York.

/s/
___________________________
Maria E. Villa
Administrative Law Judge

Dated: Albany, New York
October 16, 2003

To: (VIA CERTIFIED MAIL)
Charles Sarris, Esq.
Kouray and Kouray
525 State Street
Schenectady, New York 12305

(VIA REGULAR MAIL)
Ann Lapinski, Esq.
New York State Department of
Environmental Conservation
Division of Legal Affairs, Region 4
1150 North Westcott Road
Schenectady, New York 12306-2014

(VIA CERTIFIED MAIL)
Helen Agramonte
39 Fanshaw Avenue
Yonkers, New York 10705-3715

(VIA CERTIFIED MAIL)
Helen Agramonte
Route 146, RR 1 Box 1
Delanson, New York 12053

(VIA CERTIFIED MAIL)
Penelope Agramonte
11 North Hollywood Avenue
Gloversville, New York 12078

1. The Policy's primary purpose is to "articulate the Department's policies for assessing and collecting penalties in a manner that will assist DEC in efficiently and fairly deterring and punishing violations." Policy, at II.

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