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Coppola, Frank Sr, et al - Ruling, September 18, 2002

Ruling, September 18, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

RULING

DEC Case No. R2-20010627-112

Procedural Background

The New York State Department of Environmental Conservation ("DEC Staff", "Department") commenced this action pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") section 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. DEC Staff submitted the following in support of the motion: affirmation of assistant regional attorney David S. Rubinton, Esq, and the affidavits of Jie Zhao and Edward Rossan, environmental engineers with the Department. Respondents, by affidavit of Respondent Frank Coppola, Sr. Esq., timely opposed the motion.

Respondents' opposing affidavit makes reference to a Notice of Complaint and Pre-hearing Conference served on them by the Department prior to February 25, 2002. I have no information that the complaint served at that time is the same complaint served in April, 2002. I will only address the April 10, 2002 motion and attached complaint.

DEC Staff's motion was served on the Office of Hearings and Mediation Services and was assigned to Administrative Law Judge ("ALJ") Molly T. McBride

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). The above referenced affidavits of Department Staff indicate that this facility had a current registration pursuant to 6 NYCRR §612.2(a).

Department Staff conducted a routine inspection of the facility in April, 2001 and allege 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 has asked for an Order of the Commissioner which finds that the Respondents violated 6 NYCRR sections 613.9 and 612.2 and ECL sections 17-1005 and 17-1009. The motion states that "Upon information and belief, Respondents failed to register the petroleum bulk storage facility with the Department as required by ECL §17-1009 and 6 NYCRR §612.2..." And "Respondent failed to remove all product from the tanks and piping system to the lowest draw-off point, failed to lock or securely bolt all manways and failed to cap or plug all fill lines, gauge openings, or pump lines to prevent unauthorized use or tampering, as required by ECL §17-1005 and 6 NYCRR §613.9...".

It is alleged by Department Staff that at the April, 2001 inspection Staff observed the 4 petroleum bulk storage tanks to be temporarily out of service. Pursuant to §613.9(a)(i), temporarily out of service tanks must meet certain closing requirements and Staff alleges that those requirement were not met by the Respondents. Staff alleges that the facility was undergoing substantial modification when it was inspected in April, 2001. §612.2(d) requires an owner to notify the Department 30 days prior to substantially modifying a facility and no such notice was given to the Department. Staff also alleges violations of ECL 17-1005 "Leak Detection" and ECL 17-1009 "Registration". No particulars are stated in Staff's motion papers with regards to the alleged violation of §17-1005. As to §17-1009, it is claimed that Respondents are in violation in that they did not notify the Department at least 30 days prior to reconditioning the tanks.

By Notice dated April 4, 2001, the owners were advised of the alleged violations. Staff states that the violations were not resolved until December, 2001 and January, 2002 and have asked for penalties from the violation date until dates of compliance.

Respondents' Position

Respondents generally deny the alleged violations. However, Respondents do not claim to have put the Department on notice of the temporary closing of the tanks or of any substantial modifications to the facility. The Respondents do address some of the requirement of §613.9(b) with respect to tanks that are temporarily closed and claim that they met those requirements. Respondents further claim that they cooperated fully with the Department and worked to rectify the alleged violations immediately upon notice from the Department.

Findings of Fact

After a review of the pleadings and papers submitted herein by the parties, I find that the following facts are not in dispute:

  1. Respondents own the facility located at 6469 Broadway, Bronx, New York.
  2. The facility has 4 underground petroleum bulk storage tanks with a total capacity of 16,000 gallons.
  3. The petroleum bulk storage tanks are regulated under 6 NYCRR parts 612 and 613 and Article 17 of the ECL.
  4. The tanks were registered with the Department at the time of the site inspection in April, 2001 pursuant to 6 NYCRR §612.2(a)(2).
  5. The 4 tanks were temporarily closed for an unidentified period of time in 2001.
  6. The tanks were reconditioned in 2001.
  7. The Respondents did not provide notice to the Department that the tanks were being reconditioned 30 days prior to the reconditioning.

Discussion

A contested motion for order without hearing brought pursuant to 6 NYCRR §622.12 shall be granted if, "... upon all of the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party."(1) CPLR 3212 allows for the granting of summary judgment when no issue of fact remains. A party may move for summary judgment, after issue is joined, pursuant to CPLR 3212. The motion may be granted only upon a showing that the cause of action or defense is established sufficiently to warrant the Court as a matter of law to direct judgment in favor of a party. (CPLR 3212) "...the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.(CPLR 3212, emphasis added)

It is well established that the Court should consider the granting of such a motion a drastic and severe remedy that should be granted when there is no doubt as to the existence of a triable issue of fact (Moskowitz v. Garlock, 23 AD 2d 943, 259 N.Y.S. 2d 1003).

The function of the court upon a motion for summary judgment is issue-finding, not issue-determination. Gaeta v. New York News Inc. 466 N.Y.S.2d 321 N.Y.A.D. 1 Dept., 1983 citing Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 and Esteve v. Abad, 271 App.Div. 725, 727, 68 N.Y.S.2d It is well settled that in order to prevail upon a motion for summary judgment, the movant must first make a showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642.

I will address the alleged violations individually.

6 NYCRR §612.2(a) & (d)

The first cause of action in the Department's complaint states that Respondents failed to register the storage facility as required by §17-1009 and §612.2. The Department's papers are somewhat lacking in specificity as to the alleged violation of §612.2(a).

§612.2(a): Staff asserts that the facility registration needed to be updated. The basis for that allegation is unclear to me and not sufficiently addressed in the record. 6 NYCRR §612.2(a) requires the registration of all facilities having a capacity in excess of 1,100 gallons. This facility meets that description. Staff acknowledges that the facility was registered at the time of the site inspection pursuant to 6 NYCRR §612.2(a). The affidavit of Edward Rossan attaches a copy of the Facility Information Report from the Department's database. The Report indicates that there was a current registration for the facility that was to expire on October 15, 2002.

Staff's motion papers claim that the facility registration needed to be updated. Staff does not identify what it means by "updated" and the regulations and sections of the ECL cited do not refer to "updating" registration. The regulations do not say that an updated registration would be necessary if a substantial modification has occurred. Because a question of fact remains, I can not find that a violation of §612.2(a) occurred.

§612.2(d): 6 NYCRR §612.2(d) requires an owner of a facility that is going to be substantially modified to provide notice to the Department of said modification, 30 days prior to the substantial modification. 6 NYCRR §612.1(27) defines substantially modified facility and it includes the reconditioning of an existing stationary tank. It is acknowledged by Respondents that the tanks in question were relined. §612.1(22) defines reconditioned to include installing an interior liner. Therefore, the tanks at the Respondents facility were substantially modified.

Once it has been established that the tanks were substantially modified, the question becomes, was the required 30 day notice provided to the Department. Respondents do not claim to have provided the required notice of the modification prior to the modification. Instead, Respondents assert the defense that notice was given to the Department June, 2001, after the modification.

§612.2(d) requires an owner to notify the Department within 30 days prior to the substantial modification. The notice was not provided here. The violation has been established sufficiently and no question of fact remains. The motion should be granted with respect to this cause of action.

6 NYCRR §613.9

The Department alleges that the Respondents violated 6 NYCRR §613.9(a), "Closure of out of service tanks". §613.9(a) (i) requires an owner who has temporarily closed tanks for 30 or more days to meet certain requirements. In order for the requirements to apply, it must first be established that the tanks were closed for 30 or more days. That has not been affirmatively stated by Staff in the motion. There is nothing in the record that would allow me to determine how long the tanks were temporarily closed. Respondents have not indicated how long the tanks were temporarily closed.

Without first establishing that the tanks were closed for 30 or more days, there is no foundation to apply §613.9(a). Hence, the motion must be denied with respect to that cause of action as a question of fact exists.

Even if I were to accept Staff's statement that this section applies and that the tanks were closed in excess of 30 days, Staff has offered no proof as to how this section was violated. §613.9(a) identifies several steps a facility owner is to take when a tank is temporarily closed. Staff's motion papers do not address which, if any, of these steps was/were not taken. The only offer of proof on this issue by Staff is in the affidavit of Edward Rossan. Mr. Rossan states, in part, "...they did not appear to be properly closed." Respondents address only one of these requirements and claim that it was met.

A question of fact remains with respect to the alleged violation of 6 NYCRR §613.9(a).

ECL §17-1005

The Department alleges that the Respondents violated ECL §17-1005 "Leak Detection". ECL §17-1005 gives authority to the Department to promulgate rules and regulations to provide for the early detection of leaks and potential leaks by owners and operators. ECL §17-1005 does not impose any requirement on an owner of a facility. The Staff's motion papers do not detail how it is alleged that this section applies to the Respondents and the nature of the alleged violation. The papers simply allege in general terms that the section was violated.

The DEC Staff has not met its burden with respect to this cause of action.

ECL §17-1009

The Department alleges that the Respondents violated ECL §17-1009 "Registration". §17-1009(3) states "The owner shall, within 30 days prior to reconditioning or replacement of an existing tank or installation of a new tank at a facility, notify the department in writing of such reconditioning, replacement or installation." As noted above, the tanks in question were reconditioned. Staff alleges that no notice was given within 30 days prior to reconditioning. Respondents do not dispute this and acknowledge that the notice was given after the reconditioning. Notice after reconditioning is not sufficient to meet the requirements of ECL §17-1009(3). Therefore, the motion should be granted with respect to this cause of action.

Penalty

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 per day for each violation. As stated above, I found that the Respondents actions constituted a violation of 6 NYCRR §612.2(d) and ECL §17-1009. Therefore, the maximum penalty for those 2 violations is $25,000 per day.

Staff calculated in its motion papers that the violation period was 207 days. That number was arrived at by using May 4, 2001 as the initial violation date (30 days from the date of inspection and discovery as Staff initially gave Respondents 30 days to come into compliance) through December 28, 2001 when the Department claims to have received a valid registration application. Using those dates, the two violations as to registration existed for 207 days each. The maximum penalty allowed under those calculations would be $10,350,000.00 (414 days x $25,000).

Staff states that the maximum penalty is excessive "in the context of this matter" and recommends a penalty of $250.00 per day. Again using Staff's numbers, the penalty recommended by Staff for these 2 violations would be $103,500.00 (414 days x $250.00).

Respondents opposing affidavit states that the forms supplied by Staff at the April inspection were submitted in June, 2001. The Department says that a valid registration was not received until December, 2001. No further information is given by either party on this issue so I can not determine what the date of compliance is from the record before me.

The Department has a Civil Penalty Policy(2) ("Policy"). It serves as guidance in calculating a penalty in an enforcement case. 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.

The Policy recommends that Staff base the request for a penalty on the following: (1) potential statutory maximum; (2) the Civil Penalty Policy; (3) any program specific guidance documents; (4) other similar cases; and if relevant (5) any aggravating and mitigating circumstances which staff considered.

Staff has addressed the maximum penalty and requested a specific penalty but has not addressed the other recommendations. The Department also has an Enforcement Guidance Memo regarding petroleum bulk storage facilities. The purpose of that document is to provide guidance on such matters as well as the Civil Penalty Policy. Staff has not addressed the Enforcement Guidance Memo in the motion papers.

The Respondents have not specifically addressed the penalty amount either.

I do not find that there is sufficient information to make a recommendation on penalty. I request that Staff and Respondents provide further information on the issue of penalties within 30 days of the date of this Ruling.

Remediation

The Department has asked for remediation. There is no explanation in Staff's motion papers for this request. Both the Department and the Respondents vaguely refer to a possible spill at this site but none of the violations relate to any contamination. This request is without merit based on the record before me.

Ruling

I find that Respondents violated ECL §17-1009 and 6 NYCRR §612.2(d) and deny the motion with respect to the remaining causes of action. I direct the parties to make written submissions on the issue of penalties. The request for remediation is denied.

_____________/s/_____________
MOLLY T. MCBRIDE
Administrative Law Judge

Dated: September 18, 2002

To: David S. Rubinton, Esq.
NYS DEC- Region 2
47-40 21st Street
Long Island City, New York 11101-5407

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

1. 6 NYCRR 622.12(d)

2. NYS Dept. of Environmental Conservation Civil Penalty Policy, June 20, 1990.

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