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Boyar, William R. Sr. - Order, May 1, 2003

Order, May 1, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

alleged Violations of Articles 27 and 71 of
the Environmental Conservation Law (ECL) and Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR)

-by-

William R. Boyar, Sr.

RESPONDENT

Order

DEC File No.: R3-2001-1129-158

WHEREAS:

  1. By letter dated December 4, 2001, Staff of the Department of Environmental Conservation ("DEC" or "Department") office in Region 3 notified respondent, William R. Boyar, Sr. (the "Respondent") that Department Staff intended to revoke Respondent's recyclables handling and recovery registration, which was issued September 15, 1994 (DEC Registration Number 40M02) (the "Registration"). By letter dated December 17, 2001, Respondent requested a hearing on the revocation.
  2. On February 11, 2002 Department Staff filed a notice of hearing and complaint (dated January 8, 2002) pursuant to Section 622.3 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). An administrative enforcement hearing was held on March 27, 2002 pursuant to 6 NYCRR Part 622, before Administrative Law Judge ("ALJ") Maria E. Villa at the Department's Region 3 offices in New Paltz, New York. Assistant Regional Attorney Jennifer David Hesse, Esq. appeared on behalf of Department Staff. Respondent appeared pro se. Both the allegations in the complaint and the circumstances surrounding the proposed revocation of the Registration were heard at that time.
  3. Upon review of the hearing record, I hereby adopt the Findings, Conclusions and Recommendations outlined in the attached Hearing Report as my own, subject to the comments below.
  4. Based on the record before me, I conclude that Respondent owns property on Myrtle Avenue in Mahopac Falls, Putnam County (the "Facility"). The site constitutes a solid waste management facility, and Respondent has not obtained a permit from the Department for such facility, in violation of 6 NYCRR Section 360-1.7(a)(1)(i). I conclude further that Respondent:
    1. accepted unauthorized material at the Facility, including construction and demolition ("C&D") debris, in violation of 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-16.1(c);
    2. failed to institute controls to ensure that only authorized waste was treated, disposed of, or transferred at the Facility, in violation of 6 NYCRR Sections 360-1.14(e) and (r) and 360-12.2(a)(1);
    3. failed to maintain proper records, in violation of 6 NYCRR Sections 360-1.4(c), 360-1.8(h)(8), 360-1.14(e)(2), and 360-12.2(d);
    4. failed to sufficiently control or contain solid waste at the Facility, in violation of 6 NYCRR Section 360-1.14(j); and
    5. handled residue that was not exclusively source-separated, non-putrescible waste and generated that residue in an amount greater than two tons or fifteen percent of the Facility's average daily intake, in violation of 6 NYCRR Section 360-12.1(d)(1).
  5. These violations were observed during two inspections, one on September 6, 2001 and another on October 23, 2001.
  6. As of the date of the hearing (March 27, 2002) the material observed during those inspections was no longer present at the Facility.

NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. Respondent, William R. Boyar, Sr., is determined to have violated the regulations set forth in paragraph 4a through 4e of this Order and is assessed a total civil penalty in the amount of thirty thousand dollars ($30,000), which shall be paid by cashiers or certified check or money order drawn to the order of "NYSDEC" not later than thirty (30) days after service of this Order on Respondent.
  2. Respondent's Recyclables Handling and Recovery Registration (DEC Reg. #40M02), dated September 15, 1994, shall remain in effect.
  3. All communications between Respondent, William R. Boyar, Sr., and the Department concerning this Order, including the payment of the penalty, shall be made to the Department's Region 3 Director, 21 South Putt Corners Road, New Paltz, New York 12561-1696.
  4. The provisions, terms and conditions of this Order shall bind Respondent, his officers, directors, agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

For the State of New York Department of
Environmental Conservation
____________/s/____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
May 1, 2003

To: William R. Boyar, Sr.
P.O. Box 88
Mahopac, New York 12180-7427

Laura Zeisel, Esq.
Drake, Sommers, Loeb, Tarshis & Catania, PLLC
One Corwin Court
Post Office Box 1479
Newburgh, New York 12550

Jennifer David Hesse, Esq.
Assistant Regional Attorney
NYS DEC, Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter

- of-

the alleged violations of Articles 27 and 71 of the Environmental Conservation Law and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by-

WILLIAM R. BOYAR, SR.

Case No. R3-2001-1129-158

HEARING REPORT

- by-

____________/s/____________
Maria E. Villa
Administrative Law Judge

Proceedings

By letter dated December 4, 2001, Staff of the New York State Department of Environmental Conservation ("Department Staff" or "Staff") notified the Respondent, William R. Boyar, Sr. (the "Respondent"), that Staff intended to revoke the Respondent's recyclables handling and recovery registration. That letter, referred to hereinafter as the "Notice," afforded the Respondent the opportunity to submit a written statement setting forth reasons the registration should not be revoked, requesting a hearing, or both. By letter dated December 17, 2001, Mr. Boyar responded to the Notice, requesting a hearing on the revocation. The hearing was scheduled for March 27, 2002.

On February 11, 2002, Department Staff filed a notice of hearing and complaint (dated January 8, 2002) pursuant to Section 622.3 of Title 6 of the Official Compilation of Codes, Rules and Regulations of New York ("6 NYCRR"), naming Mr. Boyar as the Respondent. As set forth more specifically below, the complaint alleged that the Respondent had violated certain provisions of Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste) of the New York State Environmental Conservation Law ("ECL"), as well as certain regulations contained in Part 360 of 6 NYCRR. By letter dated February 7, 2002, Department Staff requested that the allegations in the complaint be heard during the hearing on the registration revocation.

Department Staff's complaint alleged that the Respondent is the owner and operator of Mahopac Scrap and Recycling (the "Facility"), located on Myrtle Avenue, in the Town of Carmel, Putnam County, New York. On September 15, 1994, the Facility received a Recyclables Handling and Recovery Registration (DEC Registration Number 40M02) (the "Registration"), authorizing the Respondent to accept source-separated, nonputrescible recyclables at the Facility. The Registration was issued pursuant to Section 360-12.1(d) of 6 NYCRR.

According to Department Staff, since the Registration was issued, Department Staff had, on several occasions, found the Respondent to have violated the terms of the Registration, and the solid waste regulations promulgated under Part 360 of 6 NYCRR. Specifically, the complaint alleged that inspections revealed that the Respondent:

(1) accepted unauthorized material, including construction and demolition ("C&D") debris, at the Facility, in violation of 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-16.1(a);

(2) failed to institute controls to ensure that only authorized waste was treated, disposed of, or transferred at the Facility, in violation of 6 NYCRR Sections 360-1.14(e) and (r) and 360-12.2(a)(1);

(3) failed to maintain required records, in violation of 6 NYCRR Sections 360-1.4(c), 360-1.8(h)(8), 360-1.14(e)(2), and 360-12.2(d);

(4) failed to sufficiently control or contain solid waste at the Facility, in violation of 6 NYCRR Section 360-1.14(j); and

(5) handled residue that was not exclusively source-separated, non-putrescible waste and generated that residue in an amount greater than two tons or fifteen percent of the Facility's average daily intake, in violation of 6 NYCRR Section 360-12.1(d)(1).

Each of the violations set forth above constituted a separate cause of action in the complaint. With respect to each cause of action, Department Staff sought revocation of the Respondent's Registration, and penalties pursuant to ECL Section 71-2703(1). That provision provides, in pertinent part, for an assessment of a civil penalty of up to $5,000, as well as $1,000 per day for each day that the violation continues, for each violation of any rule or regulation promulgated pursuant to Article 27 of the ECL, or any term or condition of any permit.

Mr. Boyar responded to the complaint, by letter dated February 5, 2002. The letter stated that Mr. Boyar had operated a refuse and recycling business "in good standing with the town, county and community for over 30 years." Exhibit 2. Mr. Boyar apologized for some of the violations that the Facility had committed in years past, and noted that the Facility had submitted annual reports for 2000 and 2001 to the Department. The letter also indicated that the Facility had changed its record-keeping system to make daily facility records available.

The hearing commenced on March 27, 2002 at the Department's Region 3 Offices before Administrative Law Judge ("ALJ") Maria E. Villa. At the hearing, both the allegations in the complaint and the circumstances surrounding Department Staff's issuance of the Notice were addressed. Department Staff appeared by Jennifer David Hesse, Esq., Assistant Regional Attorney. Mr. Boyar appeared on his own behalf.

The hearing was scheduled to begin at 10:00 on the morning of March 27, 2002. At that time, the Respondent had not yet appeared. Counsel for Department Staff telephoned Mr. Boyar, who indicated that he had mistaken the date. The ALJ and Department Staff waited to begin the hearing until Mr. Boyar appeared, shortly before noon. Transcript at p. 5 (hereinafter "Tr. at p. __ )."

Prior to taking testimony, the ALJ informed the Respondent that he had the right to be represented by counsel and to present witnesses, and to cross-examine any witnesses called and examine any documents produced by Department Staff. Tr. at pp. 6-7. The Respondent was further advised of his right to request that subpoenas be prepared to compel the attendance of witnesses. Tr. at p. 7. The Respondent indicated that he understood his rights. Tr. at pp. 6-7.

Department Staff called Theresa Laibach, P.E., Environmental Conservation Officers Robert C. Hodor, Jr., Scott Daly, and John T. Tangen, and Environmental Engineer David Pollock as witnesses. Mr. Boyar did not call any witnesses, but did testify on his own behalf.

The ALJ provided Mr. Boyar with a copy of the Department's civil penalty policy, and advised him of his right to make a post-hearing submission concerning the matters addressed at the hearing, as well as the penalty sought. Tr. at pp. 12, 194-95.

On May 6, 2002, Staff submitted its closing brief. On May 13, 2002, counsel for Department Staff advised the ALJ that the Respondent had requested an additional two weeks to prepare his closing brief, and that Staff had no objection. The ALJ extended the Respondent's time to May 29, 2002, and on May 23, 2002, the ALJ received correspondence from Laura Zeisel, Esq., stating that the Respondent had retained her to represent him in this matter, and requesting an additional extension of time. Department Staff did not object to the requested extension, and the ALJ directed that the Respondent's brief would be due on June 28, 2002. A further extension of time was granted, to July 9, 2002. Upon receipt of the Respondent's post-hearing brief, Department Staff requested leave to file a reply. There was no objection, and Department Staff filed its reply on August 12, 2002.

Findings of Fact

  1. The Facility is located on a parcel of real property on Myrtle Avenue in the Town of Carmel, Putnam County, New York.
  2. On September 15, 1994, the Facility received a Recyclables Handling and Recovery Registration (DEC Registration Number 40M02) (the "Registration"), authorizing the Respondent to accept source-separated, nonputrescible solid waste recyclables, and ferrous and non-ferrous metals at the Facility. The Registration was issued pursuant to Section 360-12.1(d) of 6 NYCRR. Under the terms of the Registration, the Facility's design capacity is 300 cubic yards, with an on-site storage capacity of 120 cubic yards.
  3. Theresa Laibach, P.E., of Region 3, inspected the Facility on June 19, 2000, September 6, 2001, October 23, 2001, and February 27, 2002. The allegations of the complaint are based upon the September 6, 2001 and October 23, 2001 inspections.
  4. During the inspections, unauthorized material was observed at the Facility, including construction and demolition debris. During the October 23, 2001, inspection, Department Staff observed about 177 cubic yards of material, which is equivalent to approximately 123 tons. Of the material present at the Facility, only approximately ten percent of the material observed was authorized pursuant to the Registration. There were no records available for inspection other than a few receipts from a scrap metal dealer, and no measures had been taken to confine or control the unauthorized material at the Facility, or to limit or prevent the acceptance of such material.
  5. ECO Daly was present at the September 6, 2001 inspection, and ticketed the Respondent for the Facility's acceptance of unauthorized material, operating an unpermitted solid waste management facility, and generating more than 15 percent of the Facility's total intake per day as residue. As of the date of the hearing, those citations had not yet been resolved.
  6. ECO John Tangen was present at the inspection of the Facility on September 6, 2001. ECO Tangen was also present at the October 23, 2001 inspection. At that inspection, the Respondent was ticketed for accepting solid waste at an unauthorized facility; processing unauthorized solid waste; failing to keep solid waste sufficiently confined or controlled; generating greater than 15 percent average intake per day as residue; and failing to maintain records. As of the date of the hearing, those citations had not yet been resolved.
  7. David Pollock, an Environmental Engineer in Region 3, inspected the Facility on February 27, 2002. Approximately 120 cubic yards of construction and demolition debris and solid waste were present at the Facility. Some of the waste was lying on the ground, and there was some minor ponding present next to some of the waste.
  8. By letter dated December 4, 2001, Department Staff notified the Respondent of Department Staff's intent to revoke the Registration.
  9. The Department has not issued a permit, pursuant to Article 27, Title 7 and 6 NYCRR Part 360, to Respondent William R. Boyar, Sr. to operate a solid waste management facility.
  10. At the inspection on June 19, 2000, material in excess of the Facility's residue generation rate was observed. Refrigerant was released to the environment when a worker operating heavy equipment crushed a refrigeration unit.
  11. Environmental Conservation Officer ("ECO") Robert C. Hodor, Jr. ticketed the Respondent on two occasions in March of 1998 for unpermitted operation of a solid waste management facility. The material disposed of at the Facility on those occasions consisted of construction and demolition debris, as well as furniture. The Respondent pled guilty and paid a fine to resolve the citations.
  12. ECO Scott Daly inspected the Facility in May of 2000, and ticketed the Respondent for accepting unauthorized material at the Facility; operating an unpermitted solid waste management facility; failure to make required operational records available; failure to provide appropriate fire detection and protection equipment at the Facility's tipping areas; failure to remove refrigerant prior to crushing material; failure to conspicuously post emergency response telephone numbers; accepting greater than 15 percent of residue; failure to sufficiently contain or control solid waste; storing solid waste for a period exceeding two weeks; and failure to maintain solid waste in a safe, orderly manner. The tickets were resolved upon payment of a fine to the court.
  13. The Respondent was cited in 1992 and 1995 for operating a solid waste management facility without a permit. Those citations were resolved upon payment of a $250 and $1000 fine, respectively.
  14. ECO Tangen inspected the property in November of 2001, and ticketed the Respondent for failure to cover solid waste. As of the date of the hearing, that ticket was still pending.
  15. ECO Tangen testified that he visited the Facility about two weeks before the hearing, and stated that the Facility was relatively clean at that time, and that the solid waste depicted in the photographs taken during previous site inspections was no longer present.

Discussion

As set forth above, Department Staff's complaint asserts that the Respondent's activities at the Facility violated certain provisions of 6 NYCRR Part 360, by operating a solid waste management facility without a permit, accepting unauthorized material and failing to take steps to ensure that only authorized material was accepted, failing to control or contain solid waste, failing to maintain required records, and accepting and generating residue above regulatory limits. According to Department Staff, those violations were observed during inspections on two occasions, on September 6, 2001 and October 23, 2001.

Applicable Regulatory Provisions

A "solid waste management facility" is defined, in pertinent part, at 6 NYCRR Section 360-1.2(b)(158) as:

any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to: storage areas or facilities; transfer stations . . . landfills; disposal facilities . . . C&D [construction and demolition debris] processing facilities . . . recyclables handling and recovery facilities . . ..

Section 360-1.2(b)(114) defines an "owner" as "a person who owns a solid waste management facility or part of one." A "person," as defined at 6 NYCRR Section 360-1.2(b)(117), means "any individual, public or private corporation . . . or any other legal entity whatsoever."

As noted above, the Respondent received a Recyclables Handling and Recovery Registration in September of 1994. Section 360-12.1(d) provides, in pertinent part, that

[t]he following regulated solid waste management facilities identified in this subdivision are subject to the registration provisions of subdivision 360-1.8(h) of this Part rather than the permit provisions of this Part, provided all the applicable requirements of subdivision 360-1.8(h) and this subdivision are met. Recyclables handling and recovery facilities exclusively handling source separated, non-putrescible solid waste that generate less than two tons or 15 percent of their average intake per day (whichever is greater) as residue based on a full year of operation.

Section 360-1.8(h) provides, among other things, that registered facilities must submit an annual report (Section 360-1.8(h)(7)), and that such facilities "remain subject to the operational requirements of section 360-1.14(b), (d), (e), (i), (j), (k), (l), (m), (p), (r), (s) and (w) of this Subpart." Section 360-1.8(h)(9). These sections prohibit the deposition of solid waste in surface waters or groundwaters, and require that a facility be constructed and operated in a manner that minimizes leachate and prevents leachate from reaching surface and groundwaters (subsection (b)); require that access to the facility be controlled, and only authorized waste accepted (subsections (d), (e) and (r)); impose recordkeeping obligations on the facility owner or operator (subsection (i)); mandate that solid waste be confined to an area that can be effectively maintained, operated and controlled, and impose controls on dust, vectors, odors and noise (subsections (j), (k), (l), (m) and (p)); require that emergency numbers be conspicuously posted (subsection (s)); and impose obligations with respect to closure of a facility (subsection (w)).

Department Staff allege that the Respondent failed to comply with a number of these provisions in the operation of the Facility. Specifically, Department Staff maintain that the Facility did not submit annual reports, access to the facility was not controlled, waste was not confined or controlled, and required records were not maintained. Additional recordkeeping requirements are imposed upon a recyclables handling and recovery facility at Section 360-12.2(d)(1) and (2), which mandate the preparation an filing of an annual report, and the maintenance of daily logs.

Department Staff contend that the Facility accepted unauthorized materials, in violation of Section 360-12.2(a)(1), and that the Facility generated more than two tons or 15 percent of its average intake per day of residue based upon a full year of operation, in violation of Section 360-12.1(d)(1). The word "residue" is defined in Section 360-1.2(b)(140) as "all solid waste remaining after treatment and, includes but is not limited to ash residue and other solid waste that is not converted or combusted." Section 360-1-2(b)(174) defines "treatment" to mean any method, technique or process designed to render solid waste "amenable for reuse, recovery, storage or reduction in volume." In this case, the residue would consist of non-recyclable material, which, Department Staff maintains, was generated above the limit set forth in Section 360-12.1(d)(1).

Department Staff allege further that the Respondent violated Section 360-16.1(c), which prohibits the unpermitted operation of a facility that receives, treats or processes construction and demolition (C&D) debris. Section 360-1.2(b)(38) defines C&D debris as "uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures, and roads," including, among other things, wood and wood products, plaster, drywall, plumbing fixtures, nonasbestos insulation, roofing shingles and other roof coverings, glass and plastics, and electrical wiring and components containing no hazardous liquids.

Section 621.14(a) of 6 NYCRR provides, in pertinent part, that the Department may revoke a permit at any time based on non-compliance with any provision of the ECL or Department regulations related to the permitted activity. The term "permit" refers to any form of Department approval that is issued in connection with a specified regulatory program, including solid waste management. 6 NYCRR Sections 621.1(o) and 621.2(m). Thus, this revocation provision governs the Registration at issue here.

At the commencement of the hearing, the ALJ noted an error in the complaint. Specifically, in paragraphs 11, 16, 21, 26 and 31, as well as paragraph III of the prayer for relief, Department Staff's complaint refers to "6 NYCRR 360-621.14(a)." The complaint also refers to "6 NYCRR 360-621.1(o) and 621.2(m)" in the paragraphs referenced above, but not in the prayer for relief. At the hearing, Department Staff confirmed that this was a typographical error, and the sections referred to were 6 NYCRR Section 621.14(a), 621.1(o), and 621.2(m). Department Staff's closing brief moved to amend the complaint to correct the error, or, in the alternative, requested that the error be disregarded as it did not prejudice any party's substantial rights. The Respondent did not address this typographical error or object to amendment of the complaint in the post-hearing brief.

Section 622.5(b) of 6 NYCRR provides that "[c]onsistent with the CPLR [New York Civil Practice Law and Rules] a party may amend its pleading at any time prior to the final decision of the commissioner by permission of the ALJ or the commissioner and absent prejudice to the ability of any other party to respond." Section 3025(b) of the CPLR states that leave to amend shall be freely granted upon such terms as may be just, and CPLR Section 3026 provides that any defects in pleading "shall be ignored if a substantial right of a party is not prejudiced." Here, the error in Department Staff's complaint did not result in substantial prejudice, and the Respondent did not object to the amendment. Accordingly, the Department's motion to amend the complaint is granted.

At the hearing, Department Staff presented its direct case, beginning with a brief opening statement. Tr. at pp. 8-9. Department Staff offered a "Certification of Lack of Record," signed by Michael D. Merriman, the Region 3 Deputy Regional Permit Administrator. Tr. at pp. 17-19; Exhibit 5. The Certification stated that a diligent search of Region 3's records did not reveal that an Article 27 (Title 7) permit had been issued to the Respondent. Exhibit 5. Mr. Boyar indicated that he did not wish to cross-examine Mr. Merriman, and stated that, while he did not possess a permit currently, he intended to apply for a permit in the future. Tr. at pp. 18-19.

Department Staff called Theresa Laibach, who is an Environmental Program Specialist in the Department's Region 3 office. Tr. at p. 22. During her testimony, Ms. Laibach explained the difference between a permit pursuant to 6 NYCRR Part 360, the provision that regulates solid waste management facilities, and a registration issued pursuant to Part 360. Tr. at pp. 27-28. According to Ms. Laibach, certain solid waste management facilities that engage in recycling have traditionally operated with little or no adverse impacts upon the environment; consequently, an operator need only obtain a registration, rather than a permit. Id.

The Registration, which authorized the Facility to process source-separated, non-putrescible solid waste recyclables and ferrous and non-ferrous metals, was issued in September of 1994. Tr. at p. 28; Exhibit 6. Pursuant to the Registration, the Facility's design capacity is 300 cubic yards, with an on-site storage capacity of 120 cubic yards. Exhibit 6. Ms. Laibach testified that, in 1998, she attended a compliance conference among members of Department Staff and the Respondent. Tr. at pp. 28-29. Ms. Laibach stated that the conference was an unsuccessful attempt to resolve certain citations issued by an Environmental Conservation Officer to the Respondent. Tr. at p. 29.

Ms. Laibach testified that she inspected the Facility on June 19, 2000, and that she prepared an inspection report, as well as a supporting deposition dated July 6, 2000, in connection with that inspection. Tr. at pp. 29-33; Exhs. 7 and 8. Ms. Laibach testified that Mr. Boyar was present during the inspection, and that she was accompanied on that day by ECO Daly. Tr. at p. 37. According to Ms. Laibach, during the inspection, she observed unauthorized materials throughout the yard (for example, construction and demolition debris and solid waste), and that, of all the material present at the Facility, only approximately ten percent of that material observed was authorized pursuant to Respondent's registration. Id. The witness testified that there were no records available for inspection other than a few receipts from a scrap metal dealer, and that no measures had been taken to confine or control the unauthorized material at the Facility, or to limit or prevent the acceptance of such material. Tr. at pp. 38-39. Ms. Laibach stated further that the Facility had exceeded its residue generation rate, and explained that if a recyclables handling and recovery facility generated residue above two tons or fifteen percent of the average intake per day, whichever is greater, the facility is operating as a transfer station, and a permit is required. Tr. at p. 40.

According to Ms. Laibach, materials at the Facility were maintained in an unsafe and disorderly manner, and that unrecoverable solid waste was being stored at the Facility for a period greater than two weeks. Tr. at p. 41. Ms. Laibach also testified that while she was present at the Facility, she observed refrigerant being released to the environment when a worker operating heavy equipment ran over a refrigeration unit. Id. Finally, Ms. Laibach stated that the Facility did not have appropriate fire detection or protection equipment on-site, that emergency numbers were not properly posted, and that the Facility was operating as an unpermitted construction and demolition debris processing facility. Id.

Ms. Laibach said that she inspected the Facility a second time, accompanied by ECOs, on September 6, 2001, and prepared an inspection report recording her observations. Tr. at p. 43; Exhibit 9. During this inspection, Ms. Laibach testified that she observed unauthorized material, including construction and demolition debris, at the Facility. Tr. at p. 46. Ms. Laibach stated that she saw insulation, sheetrock, carpet, furniture, bags of grout, paint cans, acoustical ceiling tile, a PVC pipe, and roofing materials such as tar paper and shingles. Id. Ms. Laibach testified that, as before, there were no records available for inspection, and estimated that the percentage of authorized materials at the Facility was approximately ten percent, with ninety percent of the material unauthorized. Tr. at pp. 46-47. According to Ms. Laibach, emergency numbers had been posted at the time of this inspection, and no release of refrigerant was observed. Tr. at p. 47. Ms. Laibach testified that the Facility lacked any measures for controlling the incoming waste, such as signs. Id.

On October 23, 2001, Ms. Laibach inspected the Facility again, and prepared an inspection report. Tr. at p. 48; Exhibit 10. She testified that she observed unauthorized materials on site, such as construction and demolition debris, and including insulation, shingles, dimensional and painted wood, sheetrock, carpeting, caulk and spackle containers and bags of municipal solid waste. Tr. at p. 51. The total amount of waste was estimated to be about 177 cubic yards, or 123 tons of material. Id. Ms. Laibach said that approximately ten percent of the waste present at the Facility was authorized, while ninety percent was not authorized pursuant to the Registration. Tr. at p. 52. According to Ms. Laibach, the waste was not contained or controlled, and no measures were in place to monitor or control incoming waste. Id. Ms. Laibach stated that there were no records available for inspection on the date that she visited the Facility. Tr. at pp. 52-53.

Ms. Laibach inspected the Facility a fourth time on February 27, 2002, and prepared contemporaneous field notes during that visit. Tr. at p. 54; Exhibit 11. Ms. Laibach testified that she was accompanied by David Pollock. Tr. at p. 58. According to Ms. Laibach, she observed unauthorized materials on site, including carpeting, insulation, a mattress, painted wood, sheetrock, roofing materials and electrical wiring, which Ms. Laibach characterized as "primarily construction and demolition debris materials." Id. Ms. Laibach stated that she observed workers crushing the material with machinery. Id. Ms. Laibach estimated that, as before, about ten percent of the material on site was authorized, while the remaining ninety percent was not. Tr. at pp. 58-59. With respect to each of the inspections, Ms. Laibach identified those provisions of 6 NYCRR which she testified were violated, based upon her observations. Tr. at pp. 39-41, 48, 53-54.

On cross-examination, Mr. Boyar asked the witness several questions in an effort to elicit testimony that the Facility had been cleaned up since the time of Ms. Laibach's last visit. Tr. at pp. 60-62. Because Ms. Laibach had no personal knowledge of the cleanup, the Respondent had no further questions. Tr. at p. 62. Later in the hearing, another of the Department's witnesses (ECO Tangen) testified that the site had, in fact, been cleaned. Tr. at 151-52, 154. ECO Tangen's testimony is discussed further below.

Ms. Laibach's testimony, and the documentary evidence proffered in conjunction with that testimony, went essentially unchallenged by the Respondent. The evidence is, therefore, assigned significant weight, and is one of the primary bases of a finding of liability in this matter.

Department Staff's next witness was ECO Robert C. Hodor, Jr., who testified that he issued a summons to the Respondent as well as a truck driver at the Facility based upon surveillance of the property that ECO Hodor performed as a result of a complaint received in March of 1998. Tr. at pp. 65-66. Department Staff offered a series of DEC appearance tickets (Exhibits 12A through 12C) in connection with two visits to the Facility by ECO Hodor in March of 1998. Two of the tickets (Exhibits 12A and 12D) were issued to the Respondent. Under "Description of Offense" the tickets naming the Respondent state "Operating a solid waste management facility without a permit." The other tickets, which were not issued to Mr. Boyar, indicate that the citations are for disposal of solid waste at an unauthorized facility at the Myrtle Avenue location (Exhibit 12B and 12E) and for transporting solid waste uncovered (Exhibit 12C).

The officer testified that the material disposed of consisted of furniture, including a couch, a chair, and pillows from the couch and chair, as well as construction and demolition debris, including wood, plywood, toilets, plastics and sheetrock. Tr. at pp. 69, 71, 73. ECO Hodor testified further that he visited the site a few days later, and observed a truck off-loading a chair, a couch, and pillows. Tr. at p. 82. As a result, ECO Hodor issued tickets to the Respondent for operating a solid waste management facility without a permit, and to the truck drivers for disposal of solid waste at an unauthorized facility. According to ECO Hodor, all of the tickets were subsequently resolved in the Town of Carmel court. Id. ECO Hodor testified that Mr. Boyar pled guilty and paid a fine, and that the truck driver also settled his tickets in court. Tr. at p. 83. Mr. Boyar was offered the opportunity to cross-examine, but had no questions for the witness. Id.

The Department then called ECO Scott Daly. ECO Daly testified that he inspected the Facility in May of 2000 in response to an anonymous complaint. Tr. at p. 87. ECO Daly stated that, during the inspection, he ticketed the Respondent for: (1) accepting unauthorized material at the Facility (Exhibit 15A; Tr. at p. 89); (2) operating an unpermitted solid waste management facility (Exhibit 15B; Tr. at p. 90); (3) failure to make required operational records available (Exhibit 15C; Tr. at pp. 91-92); (4) failure to provide appropriate fire detection and protection equipment at the Facility's tipping areas (Exhibit 15D; Tr. at p. 93); (5) failure to remove refrigerant prior to crushing material (Exhibit 15E; Tr. at pp. 94-95); (6) failure to conspicuously post emergency response telephone numbers (Exhibit 15F; Tr. at p. 97); (7) the Facility's acceptance of greater than 15 percent of residue (Exhibit 15G; Tr. at pp. 98-99); (8) failure to sufficiently contain or control solid waste (Exhibit 15H; Tr. at pp. 100-101); (9) storing solid waste for a period exceeding two weeks (Exhibit 15I; Tr. at pp. 101-102); and (10) failure to maintain solid waste in a safe, orderly manner (Exhibit 15J; Tr. at p. 103). Mr. Boyar stated that he was given tickets both in his individual and corporate capacities (Tr. at p. 95-97). ECO Daly testified that the tickets had been resolved. Tr. at p. 103.

According to ECO Daly, he inspected the Facility a second time on September 6, 2001. Tr. at p. 104. ECO Daly testified that, as a result of that inspection, he ticketed the Respondent for (1) the Facility's acceptance of unauthorized material (Exhibit 16A; Tr. at p. 106); (2) operating an unpermitted solid waste management facility (Exhibit 16B; Tr. at p. 108); and (3) the Facility's generation of more than 15 percent residue (Exhibit 15C; Tr. at p. 109). ECO Daly testified that the violations had not yet been resolved. Tr. at p. 110.

ECO Daly also testified that Mr. Boyar had received citations on other occasions for operating a solid waste management facility without a permit. Tr. at pp. 110-116. Department Staff introduced evidence in support of that testimony, specifically, two Town of Carmel Court case history listings reflecting the violations and dispositions thereof, and payment of fines in the amount of $250 and $1,000 (Exhibits 17 and 18). In addition, Department Staff introduced a Certificate of Disposition from the Town of Carmel Court (Exhibit 19) indicating the disposition upon payment of a $2,000 fine of the ticket ECO Daly issued to the Respondent in March of 1998 (Exhibit 12a).

Department Staff then called ECO John Tangen, who testified that he was present at the September 6, 2001 inspection of the Facility. Tr. at p. 124. According to ECO Tangen, he observed a large amount of solid waste at the property on that day, and also during a later inspection on October 23, 2001. Tr. at pp. 124-25. ECO Tangen testified that he took photographs of the Facility during the October 2001 inspection (Exhibits 20A through 20E). Those photographs depict the solid waste present at the site, as well as machinery and a roll-off container. As a result of that inspection, ECO Tangen testified that he ticketed the Respondent for: (1) accepting solid waste at an unauthorized facility (Exhibit 21A, Tr. at p. 139); (2) processing unauthorized solid waste (Exhibit 21B, Tr. at p. 140-41); (3) failing to keep solid waste sufficiently confined or controlled (Exhibit 21C, Tr. at p. 142); (4) generating greater than 15 percent average intake per day as residue (Exhibit 21D, Tr. at p. 143); and (5) failing to maintain records (Exhibit 21E, Tr. at p. 145).

ECO Tangen stated that he inspected the property again in November of 2001, and Department Staff offered a Polaroid photograph depicting solid waste at the Facility (Exhibit 22, Tr. at pp. 145-48). According to ECO Tangen, he issued a ticket to the Respondent for failure to cover solid waste, and Department Staff offered a copy of that ticket into evidence (Exhibit 23, Tr. at p. 148-49). ECO Tangen testified that the ticket was still pending. Tr. at p. 151.

Under questioning from Mr. Boyar, ECO Tangen testified that he visited the Facility about two weeks before the hearing. ECO Tangen stated that the Facility was relatively clean at that time, and that the solid waste depicted in the photographs was no longer present. Tr. at pp. 151-52, 154. ECO Tangen stated that he did not look for any records on that day. Tr. at p. 152.

Finally, Department Staff called David Pollock, an Environmental Engineer in Region 3. Mr. Pollock stated that he inspected the Facility on February 27, 2002. Tr. at p. 158. Mr. Pollock testified that he observed construction and demolition debris and solid waste at the Facility. Tr. at p. 159. Mr. Pollock estimated the amount of waste to be approximately 120 cubic yards. Tr. at p. 160. He testified further that he saw a worker moving waste using an excavator. Id.

Department Staff introduced a series of photographs (Exhibits 24A through 24G). Mr. Pollock testified that he took the photographs, and that those photographs depicted, among other things, material that the witness identified as municipal solid waste, construction and demolition debris, a Twister game, compact discs, an old garbage pail, and a mattress. Tr. at pp. 161-176. According to the witness, the photographs showed that some of the waste was lying on the ground (Tr. at p. 164) and that some minor ponding was present next to some of the waste (Tr. at p. 170).

Mr. Pollock stated that the activities taking place at the Facility required a permit pursuant to Part 360 of 6 NYCRR, and that, to his knowledge, the Respondent did not possess such a permit. Tr. at p. 177. With respect to the penalty sought by Department Staff, Mr. Pollock indicated that Staff recommended a $30,000 penalty. Tr. at p. 177-78. The witness said that the penalty was calculated as follows: $5,000 for each of the five violations in the complaint, based upon the first inspection, plus an additional $1,000 for those five violations observed at the second inspection, for a total of $30,000. Tr. at p. 178.

The inspections referred to in the complaint are those that took place on September 6, 2001 and October 23, 2001. Exhibit 1, ¶ 6. According to Department Staff, the maximum penalty is appropriate in this case because, as Mr. Pollock asserted, "the Department has spent, based on review of the file, has spent a lot of time trying to work with Mr. Boyar to bring the facility into compliance. Based on my inspection on February 27, 2002 that effort doesn't seem to have been successful and that's why the recommendation is what it is." Tr. at p. 178.

Counsel for Department Staff stated that the evidence of violations on other occasions was offered to show a continuing pattern of non-compliance, and that the same types of violations happened over and over. Tr. at p. 35.

Department Staff rested, and, as noted above, Mr. Boyar did not call any witnesses. Mr. Boyar did testify on his own behalf, stating that he lacked the financial resources to pay the fine requested, and that as of the date of the hearing, the Facility was in compliance. Tr. at p. 179-183. Department Staff had no cross-examination for the Respondent, and provided a brief closing statement, arguing that the Respondent had been operating a construction and demolition debris processing facility without a permit, and that more than half of the waste at the Facility was unauthorized. Tr. at pp. 183-186. Finally, Department Staff requested that the Registration be revoked. Tr. at p. 187.

In his closing statement, Mr. Boyar reiterated that he could not afford to pay the penalty requested, and that the business was all he had known his whole life. Tr. at p. 188-89. He stated that he intended to apply for the proper permits, and that he had always paid the fines associated with the citations. Tr. at p. 191.

Post-Hearing Briefing

Department Staff's closing brief summarizes the evidence as to each cause of action that was provided at the hearing. In addition, Department Staff argues that the penalty sought was appropriate, and that the Registration must be revoked.

The Respondent's post-hearing brief contends that the Respondent was denied due process, and that the hearing violated the State Administrative Procedure Act ("SAPA"). According to the Respondent, although the notice of hearing indicated that penalties would be sought, the exact penalty amount was not indicated, and was not disclosed until the commencement of the hearing. The Respondent also asserts that, although the Department Staff's closing brief refers to the Department's Record of Compliance Enforcement Guidance Memorandum, that policy was not referred to or made available to the Respondent at the hearing.

Counsel for the Respondent also argues that the Respondent's pro se representation was "woefully inadequate," in that the Respondent conducted no pre-hearing discovery, and did not conduct "rigorous" cross-examination of Department Staff's witnesses. Respondent's Brief, at p. 5. The Respondent asserts that the ALJ should have been more procedurally helpful to the Respondent, and should have assisted him in cross-examination, particularly with respect to testimony by one of the Department Staff's witnesses that certain charges had been dropped, and by another that the Facility had been cleaned up two weeks before the hearing. Tr. at pp. 74, 83; 151-52. The Respondent points out that he did not call any witnesses, no objections were made to documentary evidence (even where, in one instance, the first page of the document was missing), and no voir dire was conducted. Finally, the Respondent's counsel argues that, had the Respondent known of the magnitude of the penalty sought, "he might have prepared better for the hearing, and likely would have retained counsel." Respondent's Brief, at p. 6.

The Respondent also contends that the penalties demanded (revocation of the Registration, and a $30,000 fine) are excessive, particularly since the Respondent's cleanup of the Facility two weeks before the hearing was not taken into account in the penalty calculation. The Respondent points out that his non-compliance was one of the factors considered in calculating the penalty amount. The Respondent argues further that he has already been fined in Town Justice Court for the same violations for which Department Staff seeks penalties in this case.

According to the Respondent, given the procedural infirmities associated with the hearing, the record should be re-opened to allow the Respondent an opportunity to engage in meaningful cross-examination of Department Staff's witnesses. In the alternative, the Respondent asserts that the request for a $30,000 penalty should be denied, a smaller penalty should be imposed, and any suspension of the Registration should be stayed for at least 120 days to allow the Respondent sufficient time to apply for a Part 360 permit to operate a transfer station.

Department Staff's reply maintains that the Respondent was afforded due process, in that a hearing was held and he was fully apprised of his rights. Further, the reply brief points out that the Respondent requested a hearing "so that I may defend myself against the revocation of my registration, and the continued threat on my livelihood." Exhibit 4. Thus, Department Staff argues that the Respondent, having proceeded pro se, cannot now claim that he failed to appreciate the gravity of the situation. Moreover, as Department Staff points out, the notice of hearing advised the Respondent of the existence of guidance memoranda used in the Department's penalty calculations, and also stated that the Respondent was entitled to counsel at the hearing, that he could produce witnesses and evidence, and cross-examine witnesses and examine evidence produced by Department Staff. Finally, Department Staff notes that, by letter dated March 21, 2002, the Respondent was informed of the identity of the five witnesses that would be called at the hearing. Reply Brief, at p. 4, Exhibit A.

Analysis

The record does not support Respondent's argument, in the post-hearing brief, that Respondent was not afforded a fair hearing. The Respondent's argument that the lack of a specified penalty amount in the Notice of Hearing and complaint violates SAPA is not persuasive, inasmuch as the complaint did indicate the maximum penalty that could be sought. See Matter of Saddle Mountain Corp., ALJ's Rulings, 2002 WL 389373, *6 (March 6, 2002) (noting that "[n]othing requires that the complaint include an amount for the requested penalty," and that the Department's Civil Penalty Policy contemplates that the penalty will be set out orally at the hearing, or by written submission). Thus, the lack of a specified penalty amount in the complaint is not sufficient to conclude that Respondent was denied a fair hearing.

The Respondent's remaining due process arguments are not persuasive. In an administrative hearing, a party whose rights are being determined is entitled "to be fully apprised of the proof to be considered, with the concomitant opportunity to cross-examine witnesses, inspect documents, and offer evidence in rebuttal or explanation." Simpson v. Wolansky, 38 N.Y.2d 391, 395 (1975) (citations omitted). Here, the ALJ advised the Respondent at the outset of the hearing of his right to be represented by counsel, and his right to present evidence and cross-examine witnesses offered by Department Staff, as well as his right to request subpoenas to compel the attendance of witnesses. The Notice of Hearing also apprised the Respondent of these rights, and indicated that guidance as to the penalties sought was available upon request. The Respondent knew the identity of the witnesses that the Department intended to call (see Department Staff's reply brief, Exhibit A (March 21, 2002 letter from Jennifer David Hesse to Respondent)). At the hearing, the ALJ provided the Respondent with a copy of the Department's civil penalty policy, and invited him to review the policy and make a post-hearing submission.

During the proceedings, the Respondent was encouraged to cross-examine each of Department Staff's witnesses, and the Respondent did cross-examine several of those witnesses. Respondent does not cite to any authority to support the contention in the Respondent's post-hearing brief that the ALJ should have assisted the Respondent in conducting "rigorous" cross-examination. Section 622.10(b)(2) provides that "the ALJ will conduct the hearing in a fair and impartial manner." This impartiality would be compromised were the ALJ to advocate on the Respondent's behalf. In addition, the Respondent testified on his own behalf, made a closing statement, and was granted an extension to file a post-hearing brief after he retained counsel following the conclusion of the hearing.

The Respondent did not offer anything to rebut the testimony of the witnesses called by Department Staff. Therefore, that testimony is accorded significant weight. In addition, throughout the hearing, the Respondent stated on the record that he did not possess a permit for the operations at the Facility, and admitted that he had violated the Part 360 regulations. Tr. at pp. 18-19, 60-62, 190-91.

The Respondent's post-hearing brief argues that there were several areas that were "fertile grounds for appropriate cross-examination," including ECO Hodor's testimony that certain charges had been dropped, and ECO Tangen's acknowledgment that the Facility had been cleaned up two weeks before the hearing. The transcript citations in the brief to ECO Hodor's testimony (Tr. at pp. 74, 83) refer to the Respondent's payment of a fine, and resolution of a criminal charge that also covered the administrative ticket. Moreover, although ECO Tangen's testimony as to the Facility cleanup should be taken into account in evaluating the relief requested, on this record, the Respondent's liability for the violations alleged by Department Staff has been established.

The Respondent's request to re-open the hearing is denied. The Respondent was not denied due process, and in light of the evidence offered by Department Staff, and the Respondent's own admissions, further proceedings as to the Respondent's liability are not warranted. The Respondent's arguments concerning the penalty requested by Department Staff are addressed below, and, based upon those arguments, a reduction of the penalty is not warranted. Nevertheless, in recognition of the Respondent's efforts to come into compliance, this hearing report recommends that the Registration should remain in effect.

Accordingly, the Respondent, William R. Boyar, Sr., is an owner of a solid waste management facility, based on the regulatory definitions identified above. Mr. Boyar is a "person" within the meaning of the regulations. It is undisputed that the Department has not issued any permit to the Respondent to operate a construction and demolition processing facility, the Facility accepted unauthorized waste, no controls were in place to prevent the acceptance of such waste, required records were not maintained and were not available for inspection, solid waste was not properly confined and/or controlled, and the Facility generated greater than 15 percent or two tons of the Facility's average intake per day of residue. Therefore, the Department has proven the allegations set forth in the complaint by a preponderance of the evidence. See 6 NYCRR Section 622.11(c).

Relief

The Department's complaint asks the Commissioner to assess a civil penalty, and to revoke the Registration.

Civil Penalty Calculation

The Department Staff's complaint did not specify a civil penalty amount. Rather, as noted above, the complaint sought penalties for each cause of action pursuant to ECL Section 71-2703. That provision provides for a maximum civil penalty of $5,000 for violations of any provision of Titles 3 or 7 of ECL Article 27, or the implementing regulations, as well as an additional penalty of $1,000 for each day that the violation continues. At the hearing, counsel for Department Staff indicated that the maximum civil penalty, in the amount of $30,000, was sought. Tr. at p. 11. The Respondent's post-hearing brief argues that the civil penalty sought is excessive, and that the Respondent would effectively be deprived of his livelihood if the civil penalty sought is imposed and the Registration revoked. The Respondent takes the position that a smaller penalty should be imposed, and that any revocation of the Registration should be stayed "for at least 120 days to give Respondent the opportunity to apply for a Part 360 permit to operate a transfer station, which Respondent indicated at the hearing he wished to do." Respondent's Post-Hearing Brief, at p. 7.

Department Staff's reply to the Respondent's post-hearing brief contends that the penalty requested is appropriate. According to Department Staff, the Respondent has a history of violations, and that his "newly compliant" behavior (the cleanup of the Facility shortly before the hearing in March) "was essentially too little, too late." Reply Brief, at p. 6. Department Staff argue further that the penalty sought is below the maximum, because the penalty would be much higher if Department Staff sought to recover penalties for the 47 days that elapsed between the two inspections referenced in the complaint (September 6 and October 23, 2001). Based upon this scenario, Department Staff calculates the maximum civil penalty to be $72,000. In addition, the reply brief points out that the Department could have attempted to recover penalties for the older violations observed in March of 1998 and June of 2000, and the more recent violations on February 27, 2002. Department Staff's reply brief acknowledges, however, that the cleanup of the Facility was not taken into account when the civil penalty was calculated.

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"). 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. Here, the Respondent's non-compliance enabled him to avoid the costs of record-keeping and appropriate waste management.

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.

In this case, the importance of the violation in the statutory scheme is substantial. The Policy states, unequivocally, that "[u]ndertaking any activity which requires a DEC permit, without first obtaining the permit, is always a serious matter, not a mere "'technical' or 'paper work' violation . . ." Policy, at ¶ D(2)(b). Accordingly, the Respondent's unpermitted operation of a solid waste management facility is significant in terms of a penalty calculation, as is the Respondent's failure to maintain required records, which, the Policy points out, are central to the Department's ability to regulate its permittees and registrants.

Nevertheless, Department Staff provided little evidence as to the potential harm and actual damage caused by the violation. Aside from some testimony concerning minor ponding near a pile of waste material, Ms. Laibach's testimony that there were about 177 cubic yards or 123 tons of material at the Facility on October 23, 2001, and Mr. Pollock's estimate that the amount of waste material present at the Facility on February 27, 2002 was about 120 cubic yards, there was no offer of proof with respect to the considerations enumerated in the Policy, such as the amount and toxicity of any pollutants released to the environment, the amount and degree of misuse of a substance of concern, or the amount and degree of actual or potential damage to natural resources. Moreover, the record is devoid of any suggestion that any sensitive environmental sectors were implicated. Under the circumstances, it is appropriate to take these factors into consideration in evaluating the relief sought by Department Staff.

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 provided compelling evidence at the hearing as to the Respondent's culpability and history of past violations, including the inspection reports, the citations, and the observations of the witnesses called by Department Staff. The Respondent testified as to his inability to pay the penalty, but, as Department Staff points out, no documentation as to the Respondent's financial resources was provided. In addition, the Respondent's contention that it is inappropriate to impose a civil penalty for violations that have been resolved in another forum (in this case, Justice Court) must fail. Section 5.10 of the Penal Law provides that "[t]his chapter does not bar, suspend, or otherwise affect any right or liability to damages, penalty . . . or other remedy to be recovered or enforced in a civil action." See Matter of A-1 Compaction Corp., et al., Commissioner's Decision and Order, 1994 WL 326619, *15 (June 22, 1994) ("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.") Accordingly, the fines paid in connection with the actions in Justice Court are not a mitigating factor in calculating the civil penalty amount.

Nevertheless, this hearing report recommends that the Commissioner should take into account the fact that, as of the date of the hearing, the unauthorized material observed during inspections had been removed. This is particularly true since this effort at compliance was not considered in figuring the penalty. In addition, at the hearing, Department Staff indicated that even if the Respondent had provided some of the required documentation, as he stated in his letters, the complaint and the Registration revocation were directed toward past violations (Tr. at pp. 13-14); thus, the Respondent's assertion that he had provided some of the required reports was not considered in connection with the relief sought by Department Staff.

Department Staff calculated the maximum penalty for five violations observed during inspections on two days ($5,000 per violations for the first day, and $1,000 per violation on the second day). Given the Respondent's history of non-compliance, a reduction in the penalty amount is not warranted. Nevertheless, some recognition of the Respondent's efforts to bring the Facility into compliance, albeit belatedly, is appropriate in evaluating the relief requested. In addition, as noted above, there is scant evidence as to the extent of the potential harm and actual environmental damage caused by the violation. Under the circumstances, the full civil penalty requested by Department Staff should be assessed, but, as for the reasons set forth below, the Respondent's Registration should remain in effect.

Registration Revocation

Department Staff seeks to revoke the Respondent's Registration. Section 621.14(a) of 6 NYCRR provides that "[p]ermits may be modified, suspended or revoked at any time . . . on any of the grounds set forth in paragraphs (1) through (5) of this subdivision." Section 621.1(o) defines a "permit" to mean "any permit, certificate, license or other form of department approval . . . that is issued in connection with any regulatory program listed in section 621.2 of this Part." Section 621.2(m) indicates that Part 621 applies to permits authorized under "title 7 of Article 27, solid waste management (implemented by 6 NYCRR Part 360)." Thus, revocation of the Respondent's Registration is subject to the grounds set forth in Section 621.14(a).

The grounds for revocation of a permit or other approval include, among other things, "failure by the permittee to comply with any terms or conditions of the permit," and "(5) noncompliance with previously issued permit conditions, orders of the commissioner, any provisions of the Environmental Conservation Law or regulations of the department related to the permitted activity." Section 621.14(a)(1) and (5). The evidence establishes that the Respondent has failed on several occasions to comply with the terms of the Registration and the Department's regulations. Nevertheless, although a reduction in the penalty amount is not warranted, the Respondent's efforts at compliance and his statements at the hearing should be taken into account in evaluating Department Staff's position that the Registration must be revoked.

At the hearing, the Respondent indicated a desire to apply for a Part 360 permit to operate a transfer station. The Respondent has argued that revocation of the Registration would effectively deprive the Respondent of his livelihood, and this assertion has not been challenged by Department Staff. Moreover, the Respondent's compliance, although belated, is more likely to be assured if the Department maintains oversight of the activities and conditions at the Facility. Accordingly, the Registration should remain in effect.

Conclusions

'Respondent William R. Boyar, Sr. is the owner and operator of the Facility, which is a solid waste management facility within the meaning of 6 NYCRR Section 360-1.2(b)(158).

'The witnesses called by Department Staff testified, and documentary evidence indicates, that the Facility's acceptance of unauthorized material, including construction and demolition debris, was a violation of 6 NYCRR Sections 360-1.14(e) and (r), 360-1.7(a)(1)(i), 360-16.1(c) and 360-12.2(a)(1); the failure to institute controls to ensure that only authorized waste was treated, disposed of, or transferred at the Facility was a violation of 6 NYCRR Sections 360-1.14(e) and (r) and 360-12.2(a)(1); the failure to maintain operational records was a violation of Sections 360-1.14(c) and (e)(2)(i), 360-1.8(h)(8), and 360-12.2(d); and the failure to keep solid waste sufficiently confined or controlled is a violation of Section 360-1.14(j). Finally, the Facility's handling of residue that was not exclusively source-separated, non-putrescible waste, and generation of that residue in an amount greater than two tons or fifteen percent of the Facility's average daily intake, was a violation of 6 NYCRR Section 360-12.1(d)(1).

'As of the date of the hearing (March 27, 2002) the material observed at the Facility during earlier inspections had been removed.

Recommendations

  1. The Commissioner should conclude that William R. Boyar, Sr. violated Article 27 as outlined in the Department's notice of hearing and complaint dated January 8, 2002.
  2. A civil penalty of $30,000 (thirty thousand dollars) should be assessed against the Respondent, William R. Boyar, Sr., due and payable thirty days after service of the Commissioner's Order upon the Respondent.
  3. The Respondent's Recyclables Handling and Recovery Registration (DEC Reg. #40M02), dated September 15, 1994, should remain in effect.
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