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Coppola, Frank Sr., Frank Coppola Jr., and Alphone Giannattasio - Order, November 12, 2003

Order, November 12, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Violations of Article 17 of the New York State
Environmental Conservation Law and Parts 612 and 613 of
Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York by,

ORDER

DEC Case No.

R2-20010627-112

FRANK COPPOLA, SR., FRANK COPPOLA, JR.,

& ALPHONSE GIANNATTASIO,

Respondents.

WHEREAS:

  1. Pursuant to section 622.12 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Staff of the Region 2 Office of the New York State Department of Environmental Conservation ("Department") duly served a notice of motion for an order without a hearing, together with a complaint, on Frank Coppola, Sr., Frank Coppola, Jr. and Alphonse Giannattasio ("respondents") on or about April 10, 2002. The motion was timely opposed by respondents.
  2. By ruling dated September 18, 2002, Administrative Law Judge ("ALJ") Molly T. McBride granted Staff's motion in part. ALJ McBride held that respondents violated 6 NYCRR 612.2(d) and Environmental Conservation Law § 17-1009(3), which provide that the owner of a petroleum bulk storage facility shall notify the Department in writing within thirty days prior to a substantial facility modification, including the reconditioning, replacement or installation of a tank. The ALJ found that respondents did not provide the required notice to the Department that tanks at respondents' facility were being reconditioned. The ALJ then requested and received supplemental pleadings from the parties with respect to the Department Staff's request for penalties. A hearing report dated October 6, 2003, which addressed Department Staff's request for penalties, was submitted by ALJ McBride. A copy of the hearing report is attached to this order, I hereby adopt the hearing report as my own, except as to the amount of the penalty to be assessed.
  3. The hearing report recommends a penalty in the amount of $51,750.00. I fully agree with ALJ McBride that respondents cannot relieve themselves of responsibility because of their lease of the property to others and the arguments that respondents raise in that regard are unavailing. Based on my review of the record in this proceeding, however, I have determined that mitigating factors specific to this case exist, including, but not limited to, the efforts that respondents undertook to rectify the violations upon notice by the Department and respondents' cooperation in seeking to resolve the violations, that support a reduction in the recommended penalty. In view of these mitigating factors and upon further examination of the record including, but not limited to, the affidavit of Frank Coppola dated October 7, 2002 and the supplemental affirmation of Frank Coppola dated October 15, 2002, I determine that a penalty in the amount of $20,000.00 should be imposed on respondents. This represents a penalty of $5,000.00 per tank for the failure to notify the Department in writing prior to the reconditioning of the tanks, including the failure to complete the required forms with respect to the facility modification.

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

  1. Respondents violated Environmental Conservation Law § 17-1009(3) and 6 NYCRR 612.2(d) by failing to notify the Department in writing within thirty days prior to a substantial modification of their facility, as more fully described in the ruling and the attached hearing report.
  2. Respondents are jointly and severally assessed a civil penalty in the amount of Twenty Thousand (20,000.00) Dollars. The penalty shall be due and payable within 30 days of service of this order on respondents. Payment of this penalty shall be by cashiers check, certified check or money order drawn to the order of "NYSDEC" and mailed (by certified mail, return receipt requested or by overnight delivery) or hand-delivered to: Regional Director, New York State Department of Environmental Conservation, Region 2, One Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407.
  3. All communications between respondents and the Department concerning this order, including the payment of the penalty, shall be made to the Regional Director of New York State Department of Environmental Conservation, One Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York 11101-5407.
  4. The provisions, terms and conditions of this order shall bind respondents, their agents, servants and 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: Erin M. Crotty, Commissioner

Albany, New York
November 12, 2003

TO: Frank S. Coppola, Sr., Esq.
49 Valley View Drive
Yonkers, New York 10710

Frank Coppola, Jr.
128 Ramsey Avenue
Yonkers, New York 10701

Alphonse Giannattasio
54 Bobolink Road
Yonkers, New York 10701

David Rubinton, Esq.
NYS Department of Environmental
Conservation - Region 2
One Hunter's Point Plaza
47-40 21st Street
Long Island City, NY 11101-5407

In the Matter of the Alleged

Violation of Article 17

of the Environmental Conservation

Law and Parts 612 and 613 of

Title 6 of the Official

Compilation of Codes, Rules and

Regulations of the State of

New York by

FRANK COPPOLA, SR., FRANK COPPOLA, JR.,

& ALPHONSE GIANNATTASIO,

Respondents

DEC Case No. R2-20010627-112

HEARING REPORT

-by-

/s/
________________________
Molly McBride
Administrative Law Judge

October 6, 2003

Procedural Background

This hearing report addresses the New York State Department of Environmental Conservation Staff's (DEC Staff, Department) request for penalties in the Department's motion for order without hearing. This action was commenced pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) 622.12 by service of a Notice of Motion for Order without Hearing and Complaint on Frank Coppola, Sr., Frank Coppola, Jr., Alphonse Giannattasio, (Respondents) on or about April 10, 2002. Respondents timely opposed the motion. By Ruling dated September 18, 2002 (Exhibit A) the motion was granted with respect to two causes of action and denied with respect to two causes of action. (The Department has indicated it is not pursuing the remaining causes of action.) The Ruling directed the Department and Respondents to supplement their motion papers with respect to the issue of penalties and both parties have done so. The Department Staff submitted the affirmation of Assistant Regional Attorney David Rubinton, Esq. and the Respondents served two supplemental affirmations of Frank Coppola, Sr.

Background

Respondents own a facility located at 6469 Broadway, Bronx, New York (facility). The facility has 4 underground petroleum bulk storage tanks (tanks) with a total capacity of 16,000 gallons. Petroleum bulk storage facilities with a capacity of over 1,100 gallons must be registered with the Department pursuant to 6 NYCRR 612.2(a).

Department Staff conducted a routine inspection of the facility in April, 2001 and alleged that the facility was undergoing substantial modification, that the tanks had been reconditioned and the tanks were temporarily closed without meeting certain closing requirements.

Staff's Position

Department Staff moved for an Order of the Commissioner that the Respondents violated 6 NYCRR 613.9 and 612.2 and Environmental Conservation Law (ECL) 17-1005 and 17-1009. The Ruling of September 18, 2002 found that Respondents violated ECL 17-1009 and 6 NYCRR 612.2(d). Department Staff has requested a penalty "... not to exceed the maximum authorized by law." ECL 71-1929 authorizes a penalty for these violations not to exceed twenty-five thousand dollars ($25,000) per day for each violation. There is a dispute between the parties as to the violation dates.

Staff alleges that the facility was undergoing substantial modification when it was inspected in April, 2001. 6 NYCRR 612.2(d) and ECL 17-1009 require an owner to notify the Department 30 days prior to substantially modifying a facility and no such notice was given to the Department. Staff states that the violations were not resolved until December, 2001 and have asked for penalties from May, 2001 until date of compliance, 207 days. The Department chose May 4, 2001 as the first date of the violation. The Department sent a letter to the Respondents on April 4, 2001 notifying them of the violations and provided 30 days for them to come into compliance, which did not occur. Staff has requested a penalty "... not to exceed the maximum authorized by law." Staff states that the maximum penalty is excessive "in the context of this matter" and recommends a penalty of $250.00 per day. The penalty recommended by Staff for these 2 violations would be $103,500.00 (414 days x $250.00). However, in the supplemental affirmation of David Rubinton, Esq. the Department states that the Respondents have provided no argument or basis for why the maximum penalty should not be applied.

Respondents' Position

Respondents are seeking a reduction in the maximum penalties based upon the fact that although they owned the facility, it was leased and therefore the lessee was the responsible party, not the owners. Respondents argue that they should not be held responsible because they had no way of knowing what the lessee was doing and they were completely dependant on the lessee to make the necessary filings. Respondents also argue that the contractors hired by the lessee to perform the modifications should have made the necessary filings. Respondents further claim that they cooperated fully with the Department and worked to rectify the alleged violations immediately upon notice from the Department. Finally, Respondents opposing affirmation states that the forms supplied by Staff at the April inspection were submitted in June, 2001 and any violation ended then.

Violations

6 NYCRR 612.2(d) and ECL 17-1009 require an owner to notify the Department within 30 days prior to the substantial modification. The notice was not provided here. The best date to calculate the start of the violation is the date chosen by the Department, May 4, 2001. Although the Respondents allege (without providing any detail) that the required forms were filed in June, 2001 regarding the modification, they do not dispute the Department's position that the properly completed forms were not filed until December, 2001. Therefore, the violations alleged by DEC Staff did occur and the time period was from May 4, 2001 until December, 2001.

Penalty

Attempts appear to have been made by the Respondents to work with the Department once the violations were brought to their attention. The parties apparently attempted to reach an agreement and enter into an Order on Consent. There is no indication that the Respondents disregarded this matter. Also, the Respondents note that while they are the owners of the property at issue, they lease the operation of the service station. The Department's Civil Penalty Policy dated June 20, 1990 provides the Department's policy and gives guidance(emphasis added) for developing penalties for violations of the ECL. The Department has two main goals; punish the violator and deter future violations. The Policy states that the penalty should equal the gravity component, plus the benefit component, plus or minus any adjustments. The benefit component is defined as the economic benefit that results from a failure to comply with the law. The gravity component is to be reflective of the seriousness of the violation. Staff has the discretion not to seek the benefit component of the penalty where the magnitude of the benefit component is insignificant. I can see no significant benefit to the Respondents with respect to the violations.

In addressing the Civil Penalty Policy, the Staff notes that the length of time that the violation continued is important. In this case the time estimated by Staff is 207 days, a significant period of time. Also, the Staff examined the seriousness of the violation and noted that the length of time the violation continued increased the risk of harm to natural resources. Staff also states that the notification requirements here are the cornerstones of the petroleum bulk storage regulatory scheme. "The failure to comply with this requirement inhibits the regulatory oversight mandated by Title 10 of Article 17 of the ECL". (Rubinton supplemental affirmation) I believe that these violations are of a serious nature and that Respondents can not relieve themselves of responsibility because they leased the property to others. The Respondents by all accounts, are familiar with the petroleum bulk storage business and had executed registration documents filed with the Department in the past for this facility.

The Respondents have not specifically proposed a penalty amount. Respondents do make reference to a penalty proposed by Staff ($3,000) that was allegedly agreed to by Respondents in the context of negotiating an Order on Consent. I can not consider settlement discussions in making a recommendation on penalties. Those discussions are protected under New York Civil Practice Law and Rules 4547.

I agree with Staff that the maximum penalty is excessive. The Staff proposed a penalty amount of $250.00/day rather than the $25,000/day. The nature of the violations raises the question of whether the Respondents should be liable for penalties for both violations. The two violations involve the same act, failing to notify the Department prior to reconditioning the tanks. In the interests of fairness, I do not believe that a penalty should be assessed for each violation. This rationale is consistent with Matter of Steck (Commissioner's Order, March 29, 1993). In Steck the Commissioner noted that assessing a penalty for a violation of a statute and an additional penalty for a violation of the regulation that reiterates a statutory prohibition would allow for penalties in excess of the maximum penalties allowed in the ECL.

Recommendation

I recommend that the Commissioner assess a penalty against the Respondents in the amount of $ 51,750.00 for the two violations ($250/day x 207 days).

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