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Britestarr Homes Inc. - Order, March 4, 1995

Order, March 4, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 27 of the New York State Environmental Conservation Law and Part 360 of Title 6 of the Codes, Rules and Regulations of the State of New York

- by -

BRITESTARR HOMES, INC.,
OAK POINT ASSOCIATES,
AND DAVID NORKIN,

Respondents.

ORDER

DEC No. R2-3324-90-11

WHEREAS:

  1. Pursuant to a Complaint as amended on October 8, 1992, an enforcement hearing was held before Administrative Law Judge Andrew S. Pearlstein. The hearing began on December 8, 1992, and continued on April 13, May 19, 20 and 21, June 2, 3, 4, 24, 29 and 30, July 22, and October 13 and 20, 1993, as well as February 23, April 21 and 22, June 14 and 15, and July 27, 1994.
  2. Upon a review of the attached Hearing Report, I accept its Findings of Fact, Conclusions and Recommendations.

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

  1. The Respondents are jointly and severally assessed a civil penalty in the amount of FIFTY THOUSAND DOLLARS ($50,000).
  2. FORTY THOUSAND DOLLARS ($40,000) of the above penalty shall be suspended on the condition that the Respondents undertake appropriate remediation under a plan to be approved by DEC Staff.
  3. The unsuspended portion of the civil penalty, TEN THOUSAND DOLLARS ($10,000), shall be due and payable within thirty (30) days following the service of a conformed copy of this Order upon any of the Respondents.
  4. Within thirty (30) days of the order's service, the Respondents shall provide DEC Staff with an approvable plan for a site investigation to determine the amount and types of waste that have accumulated at the Oak Point site, the extent to which different kinds of waste have been segregated, and whether and to what extent the site presents an environmental hazard. Upon Staff's approval of an appropriate plan, the Respondents shall undertake the site investigation and report their results, with recommendations for site remediation, to DEC Staff. The Respondents shall then undertake whatever remediation efforts are required by DEC Staff, according to a schedule Staff shall set in its remediation directive.
  5. All communications between the Respondents and DEC concerning this Order shall be made to the Department's Region 2 Director, One Hunters Point Plaza, 47-40 21st Street, Long Island City, New York 11101.
  6. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: GARY L. SPIELMANN,
ACTING EXECUTIVE DEPUTY COMMISSIONER

Dated: Albany, New York
March 4, 1995

TO: Britestarr Homes, Inc.
191 Bruckner Blvd.
Bronx, New York 10454

David Norkin, President
Britestarr Homes, Inc.
191 Bruckner Blvd.
Bronx, New York 10454

Oak Point Associates
400 0ak Point Avenue
Bronx, New York 10454

Jeffrey D. Buss, Esq.
Smith, Buss and Jacobs
750 Lexington Avenue
New York, New York 10022

John Nehila, Esq.
NYSDEC - Region 2
47-40 21st Street
Long Island City, New York 11101

PROCEEDINGS

The Region 2 Staff of the New York State Department of Environmental Conservation (the "Department Staff") initially served a Notice of Hearing and Complaint in February, 1991. The Complaint was addressed to five Respondents: the corporation Britestarr Homes, Inc. ("Britestarr"); the partnership Oak Point Associates ("Oak Point"); and the individuals David Norkin, John Maticic and Michael McLoughlin, who were alleged to be officers of Britestarr and partners or officers of Oak Point.

The complaint alleged that these Respondents committed a series of violations of the Environmental Conservation Law ("ECL") Article 27 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360 governing solid waste management facilities. The violations were charged with respect to a site in the Bronx, New York. Staff served the Respondents with an Amended Complaint on October 8, 1992. That complaint added allegations that the Respondents had violated the tidal wetlands law and regulations, ECL Article 25 and 6 NYCRR Part 661. The allegations in the Amended Complaint and the positions of the parties are described in greater detail below.

On the Respondents' behalf, an answer to the original complaint was filed by Davidoff & Malito, New York City (Howard Weiss, Esq., of counsel) on May 28, 1991. The start of the hearing was repeatedly adjourned on mutual consent of the Respondents and DEC Staff during the next 16 months while they attempted to settle this matter.

After the Department Staff filed its Amended Complaint, Davidoff & Malito withdrew as attorneys for the Respondents. In subsequent proceedings, Jeffrey D. Buss, Esq. of Smith, Buss & Jacobs, New York City, represented Britestarr, Oak Point and David Norkin. John Maticic was represented by David A. Engel, Esq., of Harris, Beach & Wilcox, Albany. Mr. Engel filed a separate answer on behalf of Mr. Maticic on November 30, 1992. Richard A. Rehbock, Esq., of New York City, represented Michael McLoughlin after the withdrawal of his former attorneys.

John Maticic executed an Order on Consent with the Department Staff on April 13, 1993, resolving the charges against him. The Order required Mr. Maticic to pay a civil penalty of $25,000 and to testify at the enforcement hearing continuing against the other Respondents. On June 11, 1993, the Department Staff withdrew with prejudice the charges against Michael McLoughlin. Therefore, the caption reflects that the only remaining Respondents are Britestarr, Oak Point and David Norkin.

Hearing Chronology

The hearing in this matter began on December 8, 1992, at DEC's Region 2 office in Long Island City. The hearing continued on April 13, May 19, 20 and 21, June 2, 3, 4, 24, 29 and 30, July 22, and October 13 and 20, 1993, as well as February 23, April 21 and 22, June 14 and 15, and July 27, 1994.

Administrative Law Judge ("ALJ") Andrew S. Pearlstein presided at all hearing sessions.

The Department Staff appeared by John Nehila and Steven Goverman, assistant Region 2 attorneys. Mr. Buss appeared on behalf of the Respondents Britestarr, Oak Point and David Norkin.

The Department Staff presented the following witnesses:

  1. Thomas McMahon, a lieutenant with New York City's Department of Sanitation environmental police unit;
  2. Norma Papamichael, an investigator with the New York City Department of Investigations;
  3. Richard Bruzzone, the regional solid waste engineer for DEC's Region 2, New York City;
  4. John Maticic, one of the original Respondents; and
  5. Lisa Brown, a marine resources specialist for DEC's Region 2, New York City.

Respondent David Norkin testified on his own behalf, and the Respondents also presented the following witnesses:

  1. Neville Ramsay, a landfill surveyor for New York City's Department of Sanitation;
  2. Ernest Ruckert, a solid waste engineer with Wehran Engineering, which represented Britestarr in permit applications before DEC and the City of New York;
  3. Peter Sullivan, a former attorney for the Respondents; and (4) DEC employee Lou Chiarella.

The hearing record includes 2,245 pages of transcript, 79 exhibits, various written motions and ALJ rulings, and the parties' correspondence.

The parties submitted written closings, each dated November 17, 1994. Replies to each other's closings were also submitted on December 15, 1994, on which date the hearing record closed.

ALJ Pearlstein left the Department's Office of Hearings on October 21, 1994, after the hearing was finished but before closing statements were submitted. He has reviewed the parties' closing arguments and made the determinations necessary to complete this hearing report. To complete the report, he has been assisted by Edward Buhrmaster, another Department ALJ.

ALJ Pearlstein told the parties of his departure by a memorandum of October 19, 1994. Chief ALJ Daniel E. Louis informed the parties in a letter of November 30, 1994, that ALJ Buhrmaster would be assisting ALJ Pearlstein.

Subsequently, Mr. Buss, attorney for the Respondents, objected to any ALJ other than Mr. Pearlstein assisting or participating in the writing of this report. In a letter of December 6, 1994, Chief ALJ Louis overruled the objection, noting that ALJ Pearlstein was still responsible for completing this report and would make all necessary determinations, including those on credibility, which are based on his having presided as testimony was taken.

Despite his having left the Department, ALJ Pearlstein retains a Commissioner's designation to report on and make recommendations in this matter.

Prehearing Motions and Discovery

Prior to the hearing DEC Staff made available all documents sought through discovery by the Respondents, with the exception of four documents as to which Staff made a motion for a protective order. In rulings dated January 15, 1993, ALJ Pearlstein said one of the documents was not privileged and therefore ordered it disclosed. He granted the motion for protective order as to the three other documents.

On April 6, 1993, ALJ Pearlstein denied a motion to dismiss the charges which had been filed by Mr. Buss on behalf of Respondents Britestarr, Oak Point and Norkin. Among other rulings, the ALJ said that:

  1. Staff's inspections of the Britestarr site were in full compliance with the Fourth Amendment and, more specifically, 6 NYCRR 360-1.4(b), and therefore that any evidence obtained by Staff during these visits could be offered and received at the hearing, provided it was not otherwise objectionable.
  2. Materials, mostly Respondents' bank records, obtained by Staff from New York City's Department of Investigation could also be received since they were not improperly gathered.
  3. Materials obtained by Staff subpoenas on non-party consultants were properly secured, and could be received at the hearing.
  4. DEC Staff's acknowledgement of Respondents' March 1, 1989 letter confirming the operation of their facility and Staff's subsequent processing of Respondents' Part 360 application could not be construed as approval of the operation or a finding that it complied with applicable standards, and therefore did not warrant dismissal of any charges.
  5. The Complaint more than adequately notifies the Respondents of the charges against them so they may defend themselves, and therefore would not be dismissed.
  6. The liability of the named individuals for the violations alleged by DEC Staff was a factual issue to be determined at the hearing, in the context of liability theories pertaining to corporate officers and employees.

The Respondents Britestarr, Oak Point and Norkin made a second written motion to dismiss the charges based on alleged DEC improprieties in the execution of the consent order by Mr. Maticic, which the remaining Respondents alleged had prejudiced their ability to obtain a fair hearing. ALJ Pearlstein denied this motion in a memorandum dated May 3, 1993.

Positions of the Parties

Department Staff

In its Amended Complaint, the Department Staff's basic charge is that Respondents constructed and operated a solid waste management facility at the site, a landfill, without a permit, in violation of 6 NYCRR 360-1.7(a)(1), from December 31, 1988 until "at least August 18, 1989." Staff alleges that its inspections of what the Respondents had indicated was a recyclables handling and recovery facility revealed that the majority of waste received at the site, approximately 250,000 cubic yards, was instead landfilled. The Complaint alleges that this landfilled waste consists of soil, metal, plastic, rags, paper, rugs, wood, concrete, brick and tires.

Subsidiary to this basic charge, the Department Staff also alleges that the Respondents have violated a series of landfill operational and closure requirements. These include requirements that they: implement a water quality monitoring program (6 NYCRR 360-7.10[a]); file operational reports (360-7.10[b]); properly place waste in layers, and ensure against slopes greater than 33 percent (360-7.10[c]); apply cover material (360-7.10[d,e,f]); and properly close the abandoned facility (360-1.14[w]). The Complaint also alleges that Respondents failed to construct the facility to minimize the generation of leachate, in violation of 6 NYCRR 360-7.10(g), and disposed of material other than construction and demolition (C&D) debris, in violation of 6 NYCRR 360-7.10(h). [These last two violations are incorrectly cited in the Amended Complaint and Department closing brief as 6 NYCRR 360-1.7(g) and 360-1.7(h).]

The Complaint also charges the Respondents with violations of a series of requirements applicable to recyclables handling and recovery facilities. These include alleged failure to perform activities in accordance with plans (6 NYCRR 360-12.4[a]) in that the facility operated beyond its planned design capacity of 8,000 cubic yards. It is also alleged that:

  • Unprocessed solid waste was stored out-of-doors in excess of one week, in violation of 6 NYCRR 360-12.4(b)(2);
  • The facility accepted substantial amounts of non-C&D material, despite its plan to handle only C&D material, in violation of 6 NYCRR 360-12.4(b)(3);
  • Access to the site was unrestricted in that no artificial or natural barrier prevented site access, in violation of 6 NYCRR 360-1.14(e) and -12.4(d), and no attendant was on duty, in violation of 6 NYCRR 360-1.14(d);
  • Processed waste was stored far in excess of the storage limitation of 30 days for non-putrescible recyclables, in violation of 6 NYCRR 360-12.4(c).
  • Quarterly and annual reports on the operation of the facility were not filed with DEC, in violation of 6 NYCRR 360-12.4(e)(1)&(2).
  • The facility, which was directed by the city on August 18, 1989, not to receive additional waste, and was also under court order not accept any new waste material after July 9, 1990, was not closed as per 6 NYCRR 360-1.14(w), 3.4(h) and 12.4(f).

Finally, the Amended Complaint alleges that the Respondents placed a pile of fill in the tidal wetlands adjacent area, as defined in 6 NYCRR 661.4(b), without a permit, in violation of ECL 25-0401 and 6 NYCRR 661. Staff withdrew this violation in its closing brief, and therefore it is not considered further in this report.

The Department Staff now seeks payment of a civil penalty of not less than $500,000 and removal of all unauthorized material under a plan to be approved by the Department Staff. The Staff submits that the Respondents should be held liable for the full cost of remediating the site.

(All Part 360 citations in the Department's complaint are to the regulations in place between December 31, 1988, and October 9, 1993, when new regulations took effect.)

The Respondents

The Respondents claim that their facility was intended to be and actually was operated as a recyclables handling and recovery facility for C&D material, in compliance with all relevant operating standards. While they acknowledge a plan to place fill on the site, they assert that the facility was never intended to be and did not function as a landfill requiring a DEC permit. Their intent, said the Respondents, was that only "clean" fill exempt from DEC regulation would remain on the site. The Respondents said the filling with this material - - consisting of dirt and rock - - was authorized by New York City permit.

The Respondents assert that, in accordance with the transition rules of Part 360, they timely notified the Department of their operation and filed a Part 360 application for a recycling facility. They claim that during the period the facility operated, DEC never indicated that it viewed the site as a landfill, or that the Respondents had failed to apply for or needed a permit other than the one they sought.

The Respondents assert that they worked in good faith to process all of the material that was brought to the Oak Point site, but that a number of problems, including a large influx of waste during the early summer of 1989 and the failure of a large impact crusher to work as promised, eventually forced the city to prohibit their receiving new material. Even after this prohibition in August, 1989, the Respondents say they still continued processing material and moving it off the site until funds ran out two months later. The Respondents claim that the amount of material remaining on the site is far less than the 250,000 cubic yards alleged in the complaint, not counting rock, concrete, and "clean" fill which they claim is exempt from regulation.

The Respondents acknowledge that Norkin is the principal of Britestarr, which owns the Oak Point site. However, they add that the facility was operated by Oak Point Associates, a partnership, and that neither Norkin nor Britestarr were partners in Oak Point.

According to the Respondents, assessing a penalty upon Norkin or Britestarr would be inappropriate given Norkin's limited role in day-to-day operations, his good faith reliance on professionals who planned and designed these operations, and DEC's failure while operations continued to advise him that Oak Point's permit application was defective or incomplete. The Respondents contend Norkin has not profited from the Oak Point facility but instead has been driven to financial ruin. They say the Department has made no showing of environmental harm.

The Respondents request dismissal of the complaint. If any charges are sustained, they request that no penalty be assessed, or that if one is imposed, that it not exceed the $25,000 assessed against Mr. Maticic. At most, they contend, the Commissioner should direct the removal of what they describe as 40,000 cubic yards of C&D debris residue which they say remain on the site.

FINDINGS OF FACT

Background on Site and Respondents

  1. Britestarr Homes, Inc. ("Britestarr") owns about 21 acres of real property at 400 Oak Point Avenue in the Bronx, also known as the Oak Point Railroad Yard. This site ("the Oak Point site") is located south of the Bruckner Expressway, west of Leggett Avenue, east of 149th Street, and north of the East River. (A map indicating the site location is attached as Appendix "A" to this report.)
  2. From about 1978 to 1982, the Oak Point site was used as a construction and demolition ("C&D") debris landfill by the City of New York through its agent, the Lee-Bin Corporation.
  3. Respondent Norkin is the president and sole stockholder of Britestarr. He established the corporation in 1986 to participate in a joint venture with the Port Authority of New York and New Jersey. The initial intent of this venture was to buy property in the City of New York, construct a factory for affordable modular housing, and sell the housing to developers in the metropolitan region. When the Port Authority backed out of this arrangement, Britestarr elected to proceed on its own.
  4. In September, 1988, Britestarr bought the Oak Point site from Conrail Corp. for $3,167,000, with $4,500,000 borrowed from Lloyd's Bank of London guaranteed personally by Norkin and his ex-wife.
  5. To ready the site for factory construction, Britestarr was advised by its consultants that it would need to construct a wall around the property and to obtain clean fill to level the site's grade. Britestarr's initial plan, developed by Wehran Engineering of Middletown, New York, was to construct a 4,000 linear foot concrete wall 20 feet high around the property, and to bring in 300,000 cubic yards of fill. (Later, the projected amount of fill was raised to 400,000 cubic yards.)
  6. Outlined in a project overview dated November, 1988, and provided to DEC Staff, Wehran's site development approach was to construct and operate for two to three years a C&D clean fill processing facility. The facility would provide what the Respondents considered a "clean" and compacted structural fill for establishing desired site grades and the base for factory buildings.
  7. The structural fill was proposed to consist strictly of uncontaminated brick, concrete, soil, stone and asphalt paving materials. Therefore, Wehran said the fill operation could be classified as an exempt C&D activity, not subject to C&D landfill requirements, in accordance with 6 NYCRR 360-7.1(b)(1).
  8. In its project overview, Wehran acknowledged that the C&D processing and recycling activities - - but not the filling - - would require a Part 360 permit. Wehran's project overview was received by DEC's Region 2 Staff on November 2, 1988, following a brief pre-application meeting on October 27, 1988.
  9. Operations at the Oak Point site began in mid-December, 1988, under the name of Oak Point Associates ("Oak Point"). A partnership, Oak Point is a wholly owned subsidiary of Britestarr Homes, Inc. Respondent Norkin supplied the sole means of capitalization for Oak Point, either directly or through Britestarr. He had no prior experience in operating solid waste management facilities.
  10. On March 1, 1989, the Department was formally notified of the recycling operations, as required by the transition rules of Part 360 [6 NYCRR 360-1.7(a)(2)].
  11. On March 10, 1989, Oak Point Associates provided DEC Staff with a description of the facility. According to that description, the facility would operate at a design capacity of 8,000 cubic yards per day. Of this input, 75 percent would be directly recycled prior to reduction, and the remainder would be compacted and screened, yielding a fill to be placed at the site and a residue which would be transferred to roll-off containers or trailers for shipment to an intermediate processor or authorized disposal site. (A process flow diagram submitted by Oak Point is attached to this report as Appendix "B".)

Permit Application

  1. On August 29, 1989, Oak Point as site operator and Britestarr as site owner submitted to DEC Staff a Part 360 application for a recyclables handling and recovery facility. The application consisted of a report by Wehran Engineering, various engineering plans, an environmental assessment form, a draft operations and maintenance manual, copies of machinery and equipment specifications, a site survey and a topographical map.
  2. Upon receiving the application, DEC Staff referred it for review to its Division of Solid Waste. Staff did not act on the application within the time period prescribed by 6 NYCRR 621.5 and deemed the application complete by default as of October 8, 1989. No determination was made on the project's status under the State Environmental Quality Review Act (ECL Article 8, or "SEQRA"), and therefore no environmental impact statement was ever submitted.
  3. In response to a letter from Respondents' attorneys dated November 14, 1990, DEC Staff's Division of Regulatory Affairs denied the application in a letter dated November 26, 1990. The denial said the Respondents had improperly exceeded the limits on types and quantity of waste materials to qualify as a recyclables handling and recovery facility. Staff also cited an order from the State Supreme Court in the Bronx enjoining receipt of additional waste at the site and requiring removal of excess materials.
  4. On December 18, 1990, DEC Staff received a request by Respondents, dated December 7, for a hearing on the permit denial. Staff referred the matter to the Department's Office of Hearings on February 14, 1991, to begin a permit hearing pursuant to 6 NYCRR Part 624.
  5. On or shortly after February 15, 1991, DEC Staff served a notice of hearing and complaint on the Respondents and their attorneys. As detailed above, the complaint alleged Respondents had committed a series of solid waste violations at the Oak Point site. Staff then wrote to the Office of Hearings to request suspension of the permit proceeding pending resolution of the enforcement action, as authorized by 6 NYCRR 621.3(f). This request was granted, and therefore no decision on the permit application has been made to date.

Site Operations

  1. Recycling and processing operations were actually conducted at the Oak Point site between late January, 1989, and August 19, 1989. They were overseen by John Maticic, senior vice president of Britestarr and president of Oak Point. Maticic was hired by and reported to David Norkin. Beneath Maticic but also taking direction from Norkin was John McLoughlin, site manager.
  2. Norkin negotiated deals with customers and set the tipping fees for material that was brought to the site. These fees varied according to type of material, and ranged as high as $20 per cubic yard for mixed C&D debris.
  3. Norkin was personally responsible for the Lloyd's Bank mortgage, a monthly cost of about $50,000. After he could not secure financing for a modular home factory, Norkin went ahead with his plans for recycling and filling at the site both to pay interest on his loan from Lloyd's Bank and to prepare the property for sale.
  4. Between January and August, 1989, the Oak Point facility received 178,387 cubic yards of unprocessed C&D debris in 4,862 truckloads, as shown in Appendix "C", a chart prepared by Mr. Maticic based on facility records. Also as shown on this chart, total revenues were $2,169,959, receipts (based on processed checks) were $1,792,877, and the estimated cost of operation was $1,270,500. The average revenues per cubic yard received varied monthly based on the relative percentages of materials received and the lower fees charged for dirt than for unprocessed debris.
  5. The general procedure for receiving and processing waste was as follows: Trucks entered at an access road off Oak Point Avenue and were visually checked at a gatehouse. A sign at the entrance warned drivers that while Oak Point welcomed "clean" C&D debris, it did not accept asbestos, toxic chemicals, garbage, medical waste, hazardous waste, carpeting, furniture, drums, fuel tanks, appliances, or pulverized or shredded waste from any unlicensed facility.
  6. After entering the site, trucks generally went to one of several concrete pads onto which they dumped their loads. Pickers manually removed large pieces of wood, metal, plastic and tires, which were placed in bins for transport off-site to recycling facilities. Trucks carrying only excavated dirt and rock were directed away from the pads and their loads dumped directly at the site since no recycling was necessary.
  7. After unprocessed material was picked of large pieces of recyclable materials, the remainder was moved onto conveyor belts with front-end loaders. This material was then shaken through a screen and placed on a belt from which pickers on both sides could further separate recyclables. From there, the material was deposited in a crusher and then through a chute into a trommel screener.
  8. During the period that the Oak Point facility was open and operating, it employed as many as 60 to 70 people as pickers and sorters, and was equipped with various machines for recycling operations, including front end loaders, screens, bulldozers and crushers. Equipment and personnel were added as operations grew between January and August of 1989.
  9. Operations were relatively slow during the winter months, and no material was brought in during March, 1989, as the facility was closed by the City of New York so that material already on the site could be processed.
  10. Operations resumed in April, 1989, and the amount of material received increased dramatically during June and July, as shown in Appendix "C". Between May and June, 1989, the amount of cubic yards received increased from 16,095 to 60,348, due to business from a new customer, more business from existing customers, and the seasonal jump in demolition work.
  11. To handle this increase and improve the operation's efficiency, Oak Point purchased an Excel 2500 impact crusher manufactured by Jake Diel Machinery, Inc., of Hereford, Texas. The facility's most expensive piece of processing equipment, it began operation on July 12, 1989, and was subject to frequent breakdowns, at least some attributable to Respondents' inadequate hand-picking of waste that was fed into the crusher.

Inspection History

  1. During the summer of 1989, the site came under inspection from New York City's Department of Sanitation, which had permitted the site as a transfer station, and Department of Investigations, which was checking to see whether any of the waste was putrescible.
  2. As of June, 1989, large amounts of unprocessed material were accumulating on the site in piles as high as 35 to 40 feet. Trucks dumped their loads for the most part away from the concrete separating pads, which were at the part of the site adjacent to the East River. A lot of dumping occurred at the part of the site closest to the Bruckner Expressway, where there were no pads, staging areas, waste containment structures or observed recycling operations.
  3. According to reports by city inspectors, a limited amount of processing occurred during July, 1989. There were several piles of processed C&D material, but there were many more piles of unprocessed C&D material which had not been picked through. Some hand-picking occurred, and there were containers of wood and metal which had been segregated from the arriving debris. No putrescible or hazardous materials were found. Included among the C&D material were pieces of cloth, pipes, car parts, plaster and various metals.
  4. At the time of active operations, the Oak Point site was partially fenced and had a gate at the truck entrance. The remaining land access to the site was across a series of railroad tracks which were impassable to vehicles.

Facility Shutdown and Removal of Waste

  1. The facility's city transfer station permit prohibited it from storing non-putrescible waste for more than 48 hours, and from processing more than 1,000 cubic yards per day. On August 18, 1989, the city revoked this permit and directed that no additional material be brought to the site.
  2. Between August 21 and September 29, 1989, the volume of unprocessed C&D debris at the site was reduced by about two-thirds - - from about 122,000 cubic yards to about 40,000 cubic yards - - as Respondents were able to process much of the large influx of waste from earlier that summer.
  3. On September 29, 1989, Mr. Ramsay found about 89,000 cubic yards of waste material. About 40,000 cubic yards of this material was unprocessed C&D debris, including 4,000 cubic yards of rag and wood residue.
  4. The Respondents continued on-site processing of C&D material and the removal of processed residues between August 18, 1989, when the facility was closed to new material, and October 10, 1989, when all operations stopped.
  5. Respondent Norkin attributed the halt in operations to his having exhausted all of his personal funds, at which point Britestarr ran out of money. Norkin's subsequent attempts to borrow money against the property have been unsuccessful, due to Lloyd's not allowing a second mortgage. Britestarr has been unable to sell the property or to bring in new partners or other sources of money.

Subsequent Site Conditions

  1. On February 23, 1990, the site was inspected by Richard Bruzzone, a Region 2 solid waste engineer. Mr. Bruzzone concluded it was an uncovered landfill consisting of mostly C&D material. Some of this material had been processed by a combination of crushing and screening. While much of this processed material was unrecognizable, pieces of wood, plastic and wallboard were noted.
  2. Atop this processed material was a mixed refuse containing soil, metal, plastic, rags, paper, rugs, wood, broken concrete and brick, and tires. This material covered most of the 21-acre site at depths of up to 15 feet above the original grade. The southeast portion of the site appeared to contain unprocessed refuse, the southwest portion processed material, and the north portion, closest to the Bruckner Expressway, unprocessed refuse and C&D debris.
  3. Cover material had not been placed, and there were no water monitoring wells. There were roll-off containers holding metal and wood, indicating the recycling activity that had previously occurred.
  4. The site contained both C&D material (including wood, metal, asphalt, dirt, electrical conduits, and portions of plumbing) as well as non-C&D material (including mattresses, rugs, rags, furniture, appliances, paper and tires). Some material was deposited in piles with 45-degree slopes. There was no apparent layering of C&D debris.
  5. The site remained basically unchanged during subsequent visits by Bruzzone in June and December, 1991. In June, 1991, there was a smoldering fire at the site consisting of smoke but not flames. Another fire in a pile of material created a large smoke condition in February, 1990.
  6. No water quality monitoring program has been instituted at the site. No landfill operation reports have been filed with DEC, nor did the Department receive quarterly or annual reports on the recycling operation. No steps have been taken to close the landfill consistent with regulatory requirements.
  7. A July 9, 1990, order of the State Supreme Court, County of Bronx, prohibits the receipt of any new solid waste at the site.

DISCUSSION

Operation of Unpermitted Landfill

As noted above, the Department's basic charge is that the Respondents constructed and operated a landfill without a permit, in violation of 6 NYCRR Section 360-1.7(a)(1), from December 31, 1988 until at least August 18, 1989, when the site was closed to receipt of additional waste. This charge is amply demonstrated by the evidence in the record.

Section 360-1.7(a)(1) states that no person shall initiate construction of or operate a solid waste management facility except in accordance with a valid permit to operate the facility issued pursuant to Part 360. The Respondents never received or, for that matter, applied for permits either to construct or operate the landfill at the Oak Point site. But the facility clearly qualified as a landfill, according to 6 NYCRR 360-1.2(b)(88), which defines "landfill" as "a disposal facility . . . at which solid waste, or its residue after treatment, is intentionally placed in or on land, and at which solid waste will remain after closure."

According to the Respondents' own plans, the site was intended to be filled with a "clean" and compacted structural fill for establishing desired site grades, initially for a modular home factory, and later, when that idea fell through, for eventual sale of the property.

In their pre-operation overview of the project, the Respondents told DEC that the structural fill would consist strictly of uncontaminated brick, concrete, soil, stone and asphalt paving materials. They said that all other materials would be sorted out and recycled.

Now, in their closing brief, the Respondents cite 6 NYCRR 360-7.1(b)(1)(i). That section states that "a site at which only recognizable uncontaminated 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 waste comes from an offsite source) no fee or other form of consideration is required for the privilege of using the facility for disposal purposes."

While the Respondents assert this exemption, it does not apply in this case. Not only did the Respondents charge a dumping fee for use of their landfill, they also placed materials beyond those qualifying for the exemption. These included such non-C&D wastes as mattresses, rugs, rags, paper, furniture and tires, which were observed, albeit in small amounts, during DEC site inspections.

The Respondents' contention that they only intended to place "clean fill" is also unavailing. The Department limits "clean fill" to "material consisting of concrete, steel, wood, sand, dirt, soil, glass, construction and demolition debris, and other inert material designated by the department" [6 NYCRR 360-1.2(b)(22)]. The materials actually dumped go beyond this definition, as noted above. Also, the special allowance for clean fill landfilling [6 NYCRR 360-8.6(a)] is part of the Long Island Landfill Law ("LILL") [6 NYCRR Subpart 360-8], which applies only in Nassau and Suffolk counties. (Even under the LILL, a permit is needed for clean fill disposal.)

Violation of Landfill Operating Standards

Apart from operating an unpermitted solid waste management facility, the Respondents are charged with violating various standards applicable to a C&D debris landfill [6 NYCRR 360-7.10]. Although the site was never permitted as a C&D landfill (in fact, no Part 360 permit was ever issued) and contained both C&D and non-C&D debris, these standards apply based on the Respondents' plans, which were to fill with C&D material.

The following violations are demonstrated by review of DEC's files, and inspections of the site by DEC solid waste engineer Richard Bruzzone:

  • Failure to implement a water quality monitoring program [6 NYCRR 360-7.10(a)]. Mr. Bruzzone saw no evidence of such a program during his site inspections, and the Respondents did not claim to have one.
  • Failure to submit annual operation reports [6 NYCRR 360-7.10(b)]. No such reports were filed with DEC, based on Mr. Bruzzone's inspection of agency files. The Respondents never claimed to have submitted such reports, either.
  • Failure to spread C&D debris in layers not exceeding five feet in uncompacted thickness [6 NYCRR 360-7.10(c)(1)]. According to Mr. Bruzzone, the mounds of waste were deeper than five feet, with no evidence of any layering.
  • Failure to ensure against slopes greater than 33 percent [6 NYCRR 360-7.10(c)(2)]. Mr. Bruzzone observed that quite a few piles exceeded a 33 percent slope, and that many had a slope of one foot vertical to one foot horizontal, or 45 percent.
  • Failure to place cover material as necessary to control odors, fire hazards, vectors, blowing litter and scavenging [6 NYCRR 360-7.10(d)], failure to apply final cover [6 NYCRR 360-7.10(e)], and failure to establish and maintain a vegetative cover on all exposed final cover material [6 NYCRR 360-7.10(f)]. Mr. Bruzzone observed no cover material at all during his inspections of the site.
  • Failure to construct and operate the landfill to minimize the generation of leachate [6 NYCRR 360-7.10(g)]. Mr. Bruzzone observed no attempt to control leachate, which he said would normally be accomplished by such things as proper sloping and the placement of cover to prevent intrusion of rain water. While the Department had no evidence of its own concerning a leachate problem, whether one exists would be determined by groundwater testing, which the Department has not performed.
  • Failure to ensure against disposal of material other than C&D debris [6 NYCRR 360-7.10(h)]. Mr. Bruzzone observed at the site such non-C&D material as mattresses, rugs, rags, furniture, appliances, paper and tires. This material makes up only a small fraction of the landfill, and there are many piles which contain only C&D debris. Yet the non-C&D material is apparent, and the charge must be sustained, regardless of the amount or relative percentage.

The Respondents also violated 6 NYCRR 360-1.14(w) and 6 NYCRR 360-7.11(b) because they failed to properly close the landfill after August 18, 1989, when the city directed that no additional material be brought to the site. No hydrogeologic, subsurface leachate, or vector investigations were performed, and no explosive gas survey was conducted, although all of these measures are required by 6 NYCRR 360-7.11(b). The failure to properly close the landfill is demonstrated by Mr. Bruzzone's inspections of the site and his review of the file in this matter, as to which he testified.

Violation of Recycling Facility Operating Standards

The Respondents properly alerted the Department to their operation of a recyclables handling and recovery facility, as required under the transition rules [6 NYCRR 360-1.7(a)(2)]. Their construction and operation of the facility prior to December 31, 1988, allowed them to operate it in 1989 without DEC permits, if this was done in conformance with the requirements of Part 360-12 [6 NYCRR 360-1.7(a)(2)(iv)(e)]. However, the recycling facility, like the landfill, did not comply with all relevant operating standards. The following violations were demonstrated:

  • Failure to perform activities in accordance with plans [6 NYCRR 360-12.4(a)]. More precisely, the plans said the facility would operate at a design capacity of 8,000 cubic yards per day. However, the Respondents stored much more than that amount of unprocessed material.
  • Failure to ensure against out-of-doors storage of unprocessed material for more than one week [6 NYCRR 360-12.4(b)(2)]. Unprocessed material remained stored out-of-doors much longer than that.
  • Failure to accept only C&D debris, when the Respondents planned that only C&D debris would be processed [6 NYCRR 360-12.4(b)(3)]. As noted above, non-C&D debris was also brought into and deposited at the site.
  • Failure to store nonputrescible recyclables for no more than 30 days [6 NYCRR 360-12.4(c)], as evidenced by the unprocessed waste still remaining at the site.
  • Failure to file quarterly and annual reports on facility operations [6 NYCRR 360-12.4(e)], based on Mr. Bruzzone's inspection of DEC files.
  • Failure to comply with relevant closure requirements [6 NYCRR 360-12.4(f)], in that all solid waste was not removed within 30 days after the last receipt of material in August, 1989.

The Respondents were also charged with failing to minimize the possibility for unauthorized entry into the facility [6 NYCRR 360-12.4(d)] and failure to strictly and continuously control access to the facility by suitable means [6 NYCRR 360-1.14(e)]. These charges should not be sustained since the vehicle entrance was gated during the period of active operations and blocked after these operations stopped. Also, the site was at least partially fenced, and vehicle access was further inhibited by railroad tracks. The fact that access by foot remains relatively uncontrolled is not sufficient by itself to sustain this charge.

Finally, the charge that an attendant was not on duty during periods of public access [6 NYCRR 360-1.14(d)] is not adequately supported by Lt. McMahon's failure to observe the manning of the inspection tower during visits he made in early summer, 1989. The frequency and duration of the lieutenant's observations are not apparent from the record. Also, it does not appear the facility was unattended, especially since facility supervisors were generally available on-site to meet with city and state inspectors.

Joint and Several Liability

The violations in this matter have been charged to each of the three remaining Respondents: Norkin, Britestarr and Oak Point. They should be held jointly and severally liable for the violations and for any civil penalty that is assessed in this matter.

The Respondents should be held jointly and severally liable because they all contributed to the violations. In fact, they are all interrelated. Norkin is the president and only stockholder of Britestarr. He established Britestarr for the sole purpose of the modular housing venture which ultimately led to the filling of the site. Britestarr bought the site, and Oak Point, which operated the facility, is a wholly owned subsidiary of Britestarr.

In his closing brief, counsel for Mr. Norkin says that assessing a penalty upon Norkin or Britestarr would be unfair given their limited role in day-to-day operations, which were overseen by Oak Point. However, Oak Point was part of Britestarr, and Mr. Norkin, Britestarr's president, was the leading force behind this project.

As argued by DEC Staff, Norkin played the leading role in the Oak Point facility - - in its conception, organization, financing and control. Also, Norkin and Britestarr took an active role in the illegal operations. For example, Norkin signed three documents regarding the operation of the Oak Point facility as president of Britestarr. They were the February, 1989, application to New York City for a letter of authorization to operate; the March 1, 1989, letter notifying DEC of operations; and the August 29, 1989, permit application.

Finally, the "responsible corporate officer" doctrine imposes liability on parties who have, by reason of their position in a corporation, responsibility and clear authority to prevent or promptly correct a violation, yet fail to do so.

Three elements must be established before liability is imposed upon a corporate officer: (1) the individual must be in a position of responsibility which allows the person to influence corporate policies and activities; (2) there must be a nexus between the individual's position and the violation in question such that the person could have influenced the corporate actions which constituted the violations; and (3) the individual's actions or inaction facilitated the violations. [United States v. Park, 421 U.S. 658, at 673-74 (1975)].

These elements are established given Mr. Norkin's domination of Britestarr and control over Oak Point, his ability to influence site operations, and his conduct having brought on the violations charged in DEC's complaint. Mr. Norkin cannot absolve himself of responsibility by claiming, as he did, that he was rarely at the site, and delegated decisions to people he hired.

Penalty Considerations

Department Staff have requested a $500,000 penalty, in conjunction with a direction that the Respondents remediate the site. This penalty has not been apportioned by charge, so it is unknown what relative importance Staff attaches to each violation.

The Respondents request that, if any penalty assessed, it be no greater than the $25,000 assessed against Mr. Maticic by consent order.

The maximum civil penalty for solid waste violations is $2,500 for each violation, with an additional penalty of $1,000 for each day the violation continues [ECL Section 71-2703(1)]. In addition, there is an extra sanction for violations involving the construction and operation of facilities for the disposal of C&D debris [ECL Section 71-2703(3)]. Such violations make a person liable for an additional maximum penalty of $5,000, with each day of continued violation counted as a separate violation. Therefore, all violations of C&D disposal facility regulations face a total maximum daily penalty of $6,000.

In this case, Respondents, without any state permits, constructed a landfill and operated it continuously from January, 1989, until at least August 18, 1989, when it was barred from receiving additional waste. As noted in Staff's closing brief, these violations alone could sustain a maximum penalty of almost $3 million, not counting the operating violations for the landfill and recycling facility. Therefore, the amount Staff is seeking - - $500,000 - -- is well within the statutory maximum penalty authorized by law.

Commissioner's Penalty Policy

To guide the Department in assessing civil penalties, the Commissioner has developed a policy whose approach is to punish the violator and deter future violations. (Commissioner's civil penalty policy, issued June 20, 1990.) The policy states that, at a minimum, penalties should remove any economic benefit that results from a failure to comply with the law. This is accomplished by calculating the economic benefit as one of two components of a civil penalty. In addition to this component - - known as the "benefit component" - - the policy anticipates that penalties will also contain a separate "gravity component" reflecting the seriousness of the violation. Adding these components together creates a penalty that, according to the civil penalty policy, is designed to ensure that the violator is worse off than if it had obeyed the law.

- - Economic Benefit

Determining whether or to what extent the Respondents benefitted from the violations here is complicated by the incomplete development of the record on this issue. In its closing brief, the Department Staff argues that the Respondents amassed an unspecified amount of savings by avoiding numerous operating costs associated with a properly-run landfill. Among other things, Staff argues, the Respondents "failed to establish precautionary operational methods required by DEC regulations" (e.g., the slopes were too steep, the landfill was not built to minimize leachate generation, non-C&D material was dumped there), failed to install groundwater sampling wells, and failed to have enough equipment and staff on site to process the volume of material they accepted. All of this is true, but the costs of avoiding these failures - - of, in effect, complying with the law - - were not established by Staff in the record, or even calculated by Staff in its brief. No one spoke about what it would cost to have properly run the landfill or recycling facility, and no other evidence was received on this point.

Staff also claims as avoided costs what it says would be millions of dollars to dispose of the accumulated waste at a permitted landfill, should this remedial option be selected. There are two problems with this analysis. First, these costs were not verified by testimony. Second, the costs are not avoided if the Respondents are compelled to remediate the site. As discussed below, necessary site remediation - - which could involve either closing the site as a landfill, or removing some or all of the waste to a permitted facility - - should be part of any order resolving this matter.

According to the Commissioner's penalty policy, the benefit component of a civil penalty is an estimate of the economic benefit of delayed compliance, and includes "the present value of avoided capital and operating costs and permanently avoided costs which would have been expended if compliance had occurred when required," as well as "any other economic benefits resulting from noncompliance, such as avoided liquidated damages under contracts and enhanced value of business or real property" (penalty policy, page 5 of 15).

On the issue of civil penalties, Staff presented banking records of the Respondents, which Staff said showed that $400,000 was taken from Oak Point and paid over to Norkin or to corporations he controlled. This evidence by itself is not relevant to economic benefit or to other penalty considerations articulated by the Commissioner. It is also misleading without knowing how much money Norkin directly or indirectly paid into the landfill operation.

Norkin himself testified to having spent nearly $4 million of his own money in start-up expenses, many of which he itemized on the record. According to the Respondents, the operation engendered extraordinarily large expenses for engineering consultants, equipment acquisition, employee wages, the mortgage on the Oak Point property, and payments to process and remove material from the site after it was closed in August, 1989. The Respondents claim that they stopped removing material in October, 1989, only when Norkin ran out of money. They say that Norkin has been "financially devastated" by expenses arising out of the Oak Point operation, that his personal residence is in foreclosure, and that Britestarr's only asset is the site itself, against which Norkin has been unable to secure a second mortgage.

Norkin's credibility as a witness is shaken by his past criminal record, which includes pleas of guilty to conspiracy to bribe a federal judge, and to concealing assets from a bankruptcy trustee. Also, Norkin failed to present documents (payrolls, vouchers, etc.) which could corroborate his claims of expenses. Norkin was sometimes evasive under cross-examination and unnecessarily argumentative, which tended to diminish his believability. While he was very precise about certain expenditures, suggesting a familiarity with them, he was vague about their total, even though it was his money being spent. Asked by his own counsel, "Do you know approximately how much money you spent in total on these start-up costs?" he responded, "I don't want to know. I was told that I had about, out of pocket, nearly $4 million out of my own pocket. Forget about the money I borrowed, all that. And the interest that I had to make up when the business couldn't pay Lloyd's Bank and I had to write my own personal checks."

Norkin did not identify who told him he had spent nearly $4 million, and the figure itself is likely exaggerated, given Norkin's apparent reluctance to vouch for it himself, and the lack of full expense itemization, which one would expect to support such a claim. Even so, there is no question that this was a large undertaking, and that it cost a lot of money to start and then to operate. It required much expensive machinery and employed many people, including engineering consultants, site management, equipment operators, and a large staff of "pickers".

According to the Respondents' own records, the facility had nearly $2.2 million in revenues between January and August, 1989. But exactly where this money went, and in what amounts, cannot be ascertained. All that is clear is that Norkin is now in dire financial and personal straits, with a seriously diminished ability to pay any penalty that is assessed. He may not have been a fully reliable witness, but he would have to be an award-winning actor to have untruthfully testified to his financial problems, which he and his counsel have consistently represented. The entire history of the site in the years since it stopped actively operating also indicates Norkin's effective insolvency. Norkin's only real asset, the site is currently useless and cannot be sold until it is remediated. Norkin and the other Respondents have consistently stated their willingness to undertake necessary remediation, while the site has languished now for more than five years, awaiting the resolution of this matter.

- - Gravity of Violations

The Commissioner's civil penalty policy also includes as a relevant consideration a "gravity component" reflecting the seriousness of violations. The two factors in this component are (1) potential harm and actual damage caused by the violation; and (2) relative importance of the type of violation in the regulatory scheme.

The first of these factors considers whether and to what extent the violations resulted in or could potentially result in loss or harm to the environment or human health. No actual harm has accrued from these violations and the potential for harm is relatively slight. There is no evidence that the site contains hazardous, industrial, medical, asbestos or putrescible waste. There is no evidence of leachate having threatened or contaminated either groundwater or surface water resources. While there have been two fires amid the accumulated waste, there is no evidence that they posed a significant or prolonged threat to public health or safety. There is no evidence that the site represents a public nuisance. It is in a manufacturing zone, isolated from residential areas, and since 1989 has become overgrown with vegetation.

Of the violations presented, the most important to the regulatory scheme is the unpermitted landfill operation. As noted in the penalty policy, undertaking any action which requires a DEC permit, without first obtaining the permit, is always a serious matter, not a mere "technical" or "paper work" violation, since it deprives DEC of the opportunity to satisfy its obligation of review and control of regulated activities. On the other hand, the Respondents appear to have believed in good faith that they did not need a landfill permit, and took proper steps to notify the Department of their recycling operation, in accordance with the Part 360 transition rules. The Respondents then submitted a detailed application for a recycling facility, which was deemed complete through DEC Staff's inaction. Although the Respondents never received a permit, it should be noted that, had Staff promptly reviewed the application and advised the Respondents of the proper requirements, some if not all of these violations might have been avoided, as Staff did not deny the application until more than a year after active site operations had ceased. The Respondents' actions - - alerting DEC to their facility, then filing a permit application - - put them ahead of landfill operators who know full well that their activities are illegal, and therefore conceal them from the Department.

Of the remaining violations, the most serious are attributable to the Respondents stockpiling much more waste than they could handle. Because they lacked prior experience with solid waste, the Respondents may have thought initially they could handle all of the incoming materials. But eventually it became clear they were in over their heads, at which point their conduct became more culpable. While the Respondents claim they were overwhelmed during the late spring of 1989 - - largely given the seasonal increase in demolition activities - - they could have avoided being inundated either by closing their facility until it could process already-accumulated waste, or ensuring adequate staff and equipment to process what they took. The Respondents apparently could not resist the temptation to maximize revenues despite their inability to process the volume of material they received during this period. Therefore, they should be held responsible for what happened in August, 1989, when the city, doing what the Respondents would not do themselves, ordered that no additional waste be brought to the Oak Point site.

Finally, some of the violations are of a minor, technical nature (such as failure to file operating reports) or relate to landfill requirements that the Respondents did not consider applicable to their operation, which they considered only to be a recycling facility.

- - Penalty Adjustments

The penalty policy allows for adjustments to the gravity portion of a penalty based on facts particular to a certain case. Here, the Respondents' good intentions are an important consideration which warrants penalty mitigation. The Respondents made no attempt to hide their operations from scrutiny, unlike many operators of illegal C&D debris landfills. In fact, they believed in good faith that their operation did not require a landfill permit; otherwise, they most likely would have sought one when they alerted DEC of their intent to operate the recycling facility.

As noted in the findings, the Respondents filed a project overview in November, 1988, and a description of the facility in March, 1989. Under cross-examination, Mr. Bruzzone, DEC's Region 2 solid waste engineer, said that to do what was described in those submittals would require a landfill permit. Yet the Respondents were not informed of this at or close to the time their submittals were made, and therefore went ahead without one. In an inspection of the site in February, 1989, the Department even noted the filling operation, but found no deficiencies.

The penalty policy states that parties undertaking activities regulated by DEC have a duty to familiarize themselves with applicable legal requirements, and that ignorance of the law or rules is never a mitigating factor. Still, had Staff told the Respondents they needed a landfill permit, the Respondents most likely would not have gone ahead in the manner that they followed. There is nothing to suggest that the Respondents wanted to flout the law; in fact, they spent a considerable amount of time and money on the overview and application they eventually did submit for the recycling facility.

Finally, the penalty policy also recognizes as a mitigating factor the cooperation of the violator in remedying the violation. In this context, one must note that after being closed to receipt of new waste in August, 1989, the Respondents markedly reduced the amount of unprocessed material at the site, and also removed some waste from the site. They eventually stopped when they ran out of money, but have continually asserted a willingness to take all necessary measures to remediate the site.

The parties disagree about how much and what kinds of waste remain at the site, and how much of it is a product of the Respondents' actions, since the City of New York had previously used the site as a C&D debris landfill. There is also no consensus about the site's legitimate remediation needs, although at the least, there seems to be agreement that whatever non-exempt C&D waste that remains on the site will have to be removed.

Recommended Disposition

I recommend that a total civil penalty of $50,000 be assessed jointly and severally on the three remaining Respondents. This penalty should be apportioned as follows: $42,000 for the basic charge of operating the landfill without a permit, and $8,000 for the various subsidiary violations of operating standards.

This penalty should be accompanied by a direction that the Respondents undertake appropriate remediation, under a plan to be approved by DEC. The Respondents' plan should be based upon a site investigation to determine the amount and types of waste that have accumulated there, the extent to which different kinds of waste have been segregated (on which point the record is unclear), and whether and to what extent the site presents an environmental hazard.

Preliminarily, it appears that some measures less than full Part 360 closure or removal of all waste to a permitted landfill may be undertaken which are adequately protective of the public interest, reasonably affordable for the Respondents, and sufficient to allow for the land's future productive use. For instance, if certain parts of the site contain essentially exempt materials such as concrete, rock and dirt, that material may not need to be removed or capped, and may only require some final grading.

Needless to say, the Respondents' apparent lack of funds presents an obstacle to remediation. Their only asset is the site itself, which is not likely to be sold unless remediation occurs first. This leaves the Respondents in a "catch 22" situation, which might be resolved if the Respondents are able to finance a clean-up through their interest in the property.

To provide an incentive for site remediation, the Commissioner should be willing to suspend most of the total assessed penalty provided that the Respondents execute in a timely manner a remediation plan approved by DEC Staff. The added worth of the site, once remediated, should provide an additional clean-up incentive.

CONCLUSIONS

  1. The Respondents constructed and operated a landfill at the Oak Point site without a permit, in violation of 6 NYCRR 360-1.7(a)(1). This violation has continued since the first receipt of waste in January, 1989.
  2. The Respondents have committed the following violations regarding the landfill's operation:
    • Failure to implement a water quality monitoring program [6 NYCRR 360-7.10(a)];
    • Failure to submit operation reports [6 NYCRR 360-7.10(b)];
    • Failure to spread C&D debris in layers not exceeding five feet in uncompacted thickness [6 NYCRR 360-7.10(c)(1)];
    • Failure to ensure against slopes greater than 33 percent [6 NYCRR 360-7.10(c)(2)];
    • Failure to place cover material as necessary to control odors, fire hazards, vectors, blowing litter and scavenging [6 NYCRR 360-7.10(d)];
    • Failure to apply final cover [6 NYCRR 360-7.10(e)];
    • Failure to establish and maintain a vegetative cover on all exposed final cover material [6 NYCRR 360-7.10(f)];
    • Failure to construct and operate the landfill to minimize the generation of leachate [6 NYCRR 360-7.10(g)];
    • Failure to ensure against the disposal of material other than C&D debris [6 NYCRR 360-7.10(h)]; and
    • Failure to properly close the landfill [6 NYCRR 360-1.14(w); 360-7.11(b)].
  3. The Respondents have committed the following violations regarding the facility's operation as a recyclables handling and recovery facility:
    • Failure to perform activities in accordance with plans [6 NYCRR 360-12.4(a)];
    • Failure to ensure against out-of-doors storage of unprocessed material for more than one week [6 NYCRR 360-12.4(b)(2)];
    • Failure to accept only C&D debris, when the Respondents planned that only C&D debris would be processed [6 NYCRR 360-12.4(b)(3)];
    • Failure to store nonputrescible recyclables for no more than 30 days [6 NYCRR 360-12.4(c)];
    • Failure to file quarterly and annual reports on facility operations [6 NYCRR 360-12.4(e)]; and
    • Failure to comply with relevant closure requirements [6 NYCRR 360-12.4(f)], in that all solid waste was not removed within 30 days after the last receipt of material in August, 1989.

RECOMMENDATIONS

  1. For the unpermitted construction and operation of the Oak Point site as a landfill, the Respondents should be jointly and severally assessed a civil penalty in the amount of $42,000.
  2. For the violations listed in paragraph 2 of the conclusions, the Respondents should be jointly and severally assessed a civil penalty in the amount of $5,000, apportioned as $500 for each of the ten highlighted failures.
  3. For the violations listed in paragraph 3 of the conclusions, the Respondents should be jointly and severally assessed a civil penalty of $3,000, apportioned as $500 for each of the six highlighted failures.
  4. The Respondents should be directed to undertake appropriate remediation of the Oak Point site, as discussed in the recommendations of this report.
  5. On the condition that appropriate remediation occurs, payment of $40,000 of the total assessed penalty of $50,000 should be permanently suspended.
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