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Carroll, Edward - Order, August 9, 1994

Order, August 9, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 27 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 -

EDWARD J. CARROLL

RESPONDENT

ORDER

Case No. R3-1742/8908

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated May 31, 1989, Administrative Law Judge (ALJ) Daniel O'Connell presided over a default hearing on November 6, 1989 at the New Paltz Town Hall in New Paltz, NY. Jonah Triebwasser, Esq., Senior Attorney, represented the Region 3 Department Staff (the Department). In an Order dated May 8, 1990, then Commissioner Thomas C. Jorling concluded that the Respondent had violated 360-1.7(a)(1)(ii), assessed a civil penalty of $50,000, and ordered remediation
  2. In a Judgment dated June 28, 1993, the Supreme Court (Ulster County) vacated the May 8, 1990 Order, and directed ALJ O'Connell to reopen the record of the November 6, 1989 default hearing to let the Respondent present a defense to the charge alleged in the May 31, 1989 Complaint.
  3. On June 3, 1994, ALJ O'Connell presided over the administrative hearing required by the Court's remand at the Department's Region 3 Offices in New Paltz, NY. Jonah Triebwasser, Esq., Senior Attorney, represented the Department. Melvin Higgins, Esq., from Kingston, NY represented the Respondent.
  4. The record shows that the property where the solid waste in question was deposited is the site of a single-family residence which is also a farm. Since all the solid waste that was deposited was generated on-site, the complained of activities were exempt from permitting pursuant to 6 NYCRR 360-1.7(b)(1) and (4).

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

The charge alleged against the Respondent, Edward J. Carroll, in the Department's May 31, 1989 Notice of Hearing and Complaint is dismissed with prejudice.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

Dated: Albany, New York
August 9, 1994

To: Melvin Higgins, Esq.
Via Certified Mail
195 Wall Street
Kingston, New York 12401

Edward J. Carroll, Esq.
Via Certified Mail
79 Saint James Street
Kingston, New York 12401

Jonah Triebwasser, Esq.
Senior Attorney
NYSDEC- Region 3
21 South Putt Corners Road
New Paltz, New York 12561

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Alleged violations of Article 27 of the Environmental Conservation Law of
the State of New York (ECL) and Part 360 of Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York (6NYCRR)

- by -

EDWARD J. CARROLL

RESPONDENT

DEC No. R3-1742/8908

HEARING REPORT

- by -

____________/s/____________
Daniel P. O'Connell
Administrative Law Judge

Summary

After a default hearing, the Commissioner concluded in an Order dated May 8, 1990 that the Respondent, Edward J. Carroll, violated 6 NYCRR 360-1.7(a)(1)(ii) [effective December 31, 1988]. Pursuant to CPLR Article 78, the Respondent appealed the Commissioner's Order. In a Judgment dated June 28, 1993, the Supreme Court (Ulster County) vacated the Commissioner's Order. The Court remanded the matter to the Department for further proceedings to let the Respondent present a defense to the charge that the Respondent had allegedly violated 360-1.7(a)(1)(ii). At the administrative hearing required by the Court's remand, the Respondent showed that he was except from the Part 360 permit requirements pursuant to 360-1.7(b)(1) and (4). This Hearing Report recommends that the Commissioner dismiss the charge with prejudice.

Proceedings

After the Region 3 Staff of the Department of Environmental Conservation (the Department) duly served a Notice of Hearing and Complaint dated May 31, 1989, Administrative Law Judge (ALJ) Daniel P. O'Connell convened an administrative hearing at the New Paltz Town Hall on November 6, 1989. The purpose of the administrative hearing was to determine whether Edward J. Carroll (the Respondent) violated Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) 360-1.7(a)(1)(ii). The Complaint alleged that the Respondent operated a solid waste management facility on Route 209 in the Town of Marbletown, Ulster County, NY (the Site) from April 1, 1989 to May 31, 1989 without a permit. Appendix A is a copy of the May 31, 1989 Notice of Hearing and Complaint.

The Respondent did not appear at the November 6, 1989 hearing. In an Order dated May 8, 1990, the Commissioner concluded that the Respondent violated 360-1.7(a)(1)(ii), assessed a $50,000 civil penalty, and directed the Respondent to remove the solid waste material from the Site. Appendix B is a copy of the May 8, 1990 Order with the attached Hearing Report.

Pursuant to CPLR Article 78, the Respondent appealed the Commissioner's May 8, 1990 Order. In a Judgment dated June 28, 1993, the Supreme Court (Ulster County) vacated the Commissioner's Order. The Court directed ALJ O'Connell to reopen the record of the November 6, 1989 default hearing to let the Respondent present a defense to the charge alleged in the May 31, 1989 Complaint. Appendix C is a copy of the June 28, 1993 Judgment.

Pursuant 6 NYCRR Part 622 (effective from July 14, 1985 to January 10, 1994), ALJ O'Connell presided over the administrative hearing required by the Court's remand on June 3, 1994 at 10:00 A.M. at the Department's Region 3 Offices in New Paltz, NY. Upon receipt of the stenographic transcript, the record of the June 3, 1994 administrative hearing closed on June 22, 1994.

On both November 6, 1989 and June 3, 1994, Jonah Triebwasser, Esq., Senior Attorney, represented the Department. At the November 6, 1989 hearing, the Department's witnesses were Environmental Conservation Officer (ECO) Marion Hoffman, and Ruth Bean from the Region 3 Division of Regulatory Affairs. These witnesses were also present at the June 3, 1994 hearing.

At the June 3, 1994 hearing, Melvin Higgins, Esq. from Kingston, NY represented the Respondent. Mr. Carroll came to the hearing and testified on his own behalf.

Department Charges and Relief Sought

In the Complaint dated May 31, 1989, the Department alleged that the Respondent violated 360-1.7(1)(ii) when he operated a solid waste management facility on his property from April 1, 1989 to May 31, 1989 without a permit.

At the November 6, 1989 hearing, the Department requested a $367,000 civil penalty. The Department argued that the solid waste on the Site caused a public health hazard, and asked the Commissioner to direct the Respondent either to close the Site according to 360-2.15 (Landfill closure and post-closure criteria), or to remove the material to an authorized facility.

At the June 3, 1994 hearing, the Department argued the Respondent's procrastination unduly delayed the resolution of this matter. Referring to the guidance provided in the Commissioner's Civil Penalty Policy, the Department requested a civil penalty larger than $10,000. The Department also renewed its request for an order directing the Respondent to remediate the Site. Alternatively, the Department stated it would accept proof from the Respondent that he had removed the solid waste from the Site to an authorized solid waste management facility.

Respondent's Answer

With a cover letter dated June 2, 1994, the Respondent provided the Office of Hearings and the Region 3 Office with his Answer. The Respondent argued that he did not need a Part 360 permit from the Department based on the exemption provided in 360-1.7(b)(1). According to the Respondent, the Site is a disposal area located within the property boundaries of a single family residence or farm for solid waste generated from that residence or farm. The Respondent asked the Commissioner to dismiss the charge alleged in the May 31, 1989 Complaint.

The Respondent asserted that he has already removed all the solid waste material from the Site, and concluded there was no need to remediate the Site.

Findings of Fact

  1. The Respondent, Edward J. Carroll, and his wife own a farmhouse and outbuildings on about 9 acres of property on Route 209 in the Town of Marbletown, Ulster County, New York (the Site). Before the Respondent had purchased the Site, it had been part of a farm.
  2. The Respondent grows hay in the fields on the Site. The Respondent has arranged for a neighboring farmer to harvest the hay. The Respondent keeps a portion of the hay for his Quarter horse, and the neighboring farmer takes the rest.
  3. From April 1, 1989 to May 31, 1989, the Respondent, or his agent, deposited and stored plastic bags of material, plastic containers, papers, household waste and tires in the field behind the farmhouse. In addition to the previously described material, there was debris from constructing, remodeling, and repairing the farmhouse and outbuilding owned by the Respondent.
  4. Although the precise metes and bounds of the Site are not part of the record of this administrative hearing, there is generally no dispute that the materials described in the previous Finding of Fact were within the boundaries of the Respondent's property.
  5. For a period including April 1, 1989 through May 31, 1989, the Respondent was renovating the farmhouse and outbuildings on the Site. The materials deposited and stored on the Site were the result of these renovations and came from the farmhouse and outbuildings.
  6. During the renovation period, the Respondent and his family did not reside exclusively at the farmhouse. During this period, the Respondent and his family also lived at other locations. During the renovation process, workmen would temporarily live at the Site either in the farmhouse itself or in trailers on the Site.
  7. By November 1989, the Respondent, or his agent, had removed the material that had been deposited and stored on the Site from April 1, 1989 to May 31, 1989.
  8. There is no evidence which shows that the material deposited on the Site from April 1, 1989 to May 31, 1989 was a risk to public health.

Regulatory Definitions

  1. Section 360-1.2(a)(1) defines solid waste to mean, in pertinent part, "all putrescible and non-putrescible materials or substances...that are discarded or rejected as being spent, useless, worthless...including but not limited to garbage, refuse,...rubbish, tires,...construction and demolition debris,..." Additionally, materials are discarded if they are abandoned by being "accumulated, stored, or physically, chemically or biologically treated (other than burned or incinerated) instead or before being disposed of" [360-1.2(a)(2)(iii)].
  2. Construction and demolition (C&D) debris as defined in 360-1.2(b)(33) means, in pertinent part, "solid waste resulting from the construction, remodeling, repair and demolition of structures..."
  3. Section 360-1.2(b)(56) defines farm to mean, "the raising or harvesting of any agricultural or horticultural commodity through the cultivation of the soil, or the raising, shearing, feeding, caring for, training, or management of livestock, bees, poultry, furbearing animals, or wildlife."
  4. The term residence is not defined in 360-1.2(b) or elsewhere in Part 360.
  5. In pertinent part, 360-1.2(b)(145) defines solid waste management facility to mean "any facility employed beyond the initial solid waste collection process and managing solid waste including, but not limited to: storage areas or facilities;...landfills;...composting facilities; surface impoundments..."

Discussion

There is no dispute about ECO Hoffman's description of the materials on the Site. Based on the regulatory definition provided in 360-1.2(a)(1), the materials were solid waste. Furthermore, most of the solid waste on the Site was construction and demolition (C&D) debris as defined in 360-1.2(b)(33).

Section 360-1.7(a)(1) states, in pertinent part, that "[e]xept as provided for in subdivisions (b) and (c) of this section, ... no person shall: operate a solid waste management facility or any phase of it, except in accordance with a valid permit to operate that facility" [360-1.7(a)(1)(ii)]. A person operates a solid waste management facility by controlling how the solid waste at the facility is handled [360-1.2(b)(104)].

Section 360-1.7(b)(1) provides for an exemption from the Part 360 permit requirements for "[d]isposal areas located within the property boundaries of a single family residence or farm for solid waste generated from that residence or farm." Another exemption provides for transfer and storage facilities located at a single or multiple family residence, or a farm that are used exclusively for the management of solid waste generated at that location [360-1.7(b)(4)].

Although the precise metes and bounds of the Site are not part of the record of this administrative hearing, there is no significant dispute that the solid waste observed by Officer Hoffman from April 1, 1989 to May 31, 1989 was on the Respondent's property. The location of the solid waste is essential to proving both the violation alleged by the Department [See 360-1.7(a)(1)(ii)], and the exemption asserted by the Respondent [See 360-1.7(b)(1)].

The June 3, 1994 hearing focused on two elements of the exemption provided in 360-1.7(b)(1). The first is whether the farmhouse on the Site is a single family residence. The second is whether the Site is a farm.

The Respondent testified that during the renovation period, he and his family did not reside exclusively at the farmhouse on the Site. In addition, the Respondent testified that workmen would temporarily live at the Site either in the farmhouse itself or in trailers while working on the renovations. Based on this testimony, the Department concluded that the farmhouse on the Site was not the Respondent's residence and that the farmhouse was actually a boarding house. Based on this conclusion, the Department argued that the Respondent did not meet the exemption criteria provided in 360-1.7(b)(1).

The regulations do not define the term residence. Based on the plain meaning the term as it is used within the context of the regulation, the Department's argument is without merit. Regardless of whether the Respondent and his family lived exclusively at the farmhouse during the renovation period, the fact that the Respondent owned the house and was renovating it shows that the Respondent intended to make the farmhouse his family's residence. Furthermore, the workmen who temporarily lived on the Site did not turn the farmhouse into a boarding house. Consequently, the farmhouse on the Respondent's property is a single family residence.

The evidence offered by the Respondent to show that the Site is a farm, within the meaning of 360-1.2(b)(56), was also compelling. The Respondent testified that he grows hay on his property, has arranged to have a neighboring farmer harvest the hay, and uses some of the hay to feed his Quarter horse.

Officer Hoffman testified that she never saw crops or farming equipment whenever she drove by the Site. During cross examination, however, ECO Hoffman testified that she drove by the Site at less than optimal times to make such observations. For example, Officer Hoffman did not always drive by the Site during the growing season. In addition, ECO Hoffman frequently drove by the Site at dawn, dusk and other times when the light was poor. Officer Hoffman also testified that she does not know where the exact property boundaries of the Respondent's property are. As a result, ECO Hoffman testified that she could not distinguish which fields around the farmhouse actually belonged to the Respondent. Consequently, I give no weight to Officer Hoffman's testimony that she never saw crops or farming equipment on the Site whenever she drove by it.

Based on how 360-1.7(b)(1) is phrased, the Department argued that the exemption should apply to either a single family residence or a farm, but not to a site that may have characteristics of both a single family residence and a farm. According to the Department, the Respondent erred in his attempt to show that the house on the Site was a single family residence and that the Site was a farm.

The Department's argument about how to apply the exemption provided by 360-1.7(b)(1) is overly narrow, and is, therefore, rejected.

The record of in this proceeding also shows that the Respondent meets the criteria for the exemption provided by 360-1.7(b)(4). I conclude that the Respondent operated a transfer and storage facility at a single or multiple family residence, or farm exclusively to manage the solid waste generated at that location. Consequently, the Respondent is exempt from the Part 360 permit requirements pursuant to both 360-1.7(b)(1) and 360-1.7(b)(4).

Conclusions

  1. The materials observed on the Site by Officer Hoffman from April 1, 1989 to May 31, 1989 are solid waste. Furthermore, most of the solid waste on the Site was construction and demolition debris.
  2. The farmhouse on the Respondent's property is a single family residence as that term is used in 360-1.7(b)(1).
  3. The Site is a farm within the meaning of 360-1.2(b)(56).
  4. The Respondent is exempt from the Part 360 permit requirements pursuant to 360-1.7(b)(1) and 360-1.7(b)(4).
  5. The Respondent did not violate 360-1.7(a)(1)(ii).

Recommendation

The Commissioner should dismiss the charge that the Respondent violated 6 NYCRR 360-1.7(a)(1)(ii) from April 1, 1989 to May 31, 1989 with prejudice.

Attachments

Appendix A: Combined Notice of Hearing and Complaint dated May 31, 1989

Appendix B: Commissioner Jorling's Order dated May 8, 1990 and attached Hearing Report

Appendix C: Judgement dated June 28, 1993

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