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Costell, Milton - Order April 8, 2003

Order, April 8, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the alleged violations of the Environmental
Conservation Law Articles 19 and 33 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of the
State of New York, Parts 211 and 325,

by

MILTON COSTELL,
Respondent

ORDER

DEC Case No. R1-2000927-72

WHEREAS:

1. Staff of the Region 1 Office of the New York State Department of Environmental Conservation ("Staff", "Department") duly served a Notice of Hearing and Complaint and Amended Complaint upon Milton Costell, ("Respondent") thereby initiating an administrative enforcement hearing. The hearing commenced on November 8, 2001 and the record closed on December 14, 2001.

2. Staff appeared and was represented at the hearing by Assistant Regional Attorney Karen Murphy, Esq., Region 1 Office, Stony Brook, New York. The Respondent appeared pro se.

3. Upon review of the record and the hearing report of the Administrative Law Judge ("ALJ") Molly T. McBride, I hereby adopt its Findings, Conclusions and Recommendations as my own.

4. The regulation of pesticides under Article 33 of the Environmental Conservation Law ("ECL") has been determined by the Legislature to be in the public interest. Improper use of pesticides may injure health, property and wildlife. The actions of the Respondent in this matter were in direct violation of the applicable statutes.

5. The allegations which were proved in the present hearing justify the imposition of a reasonable penalty.

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

I. The Respondent is found to be in violation of ECL Articles 19 and 33 and Title 6 of the Official Compilation of Codes, Rules and Regulations ("6 NYCRR") Parts 325 and 211 as more fully stated in the Conclusions of the hearing report.

II. Based upon the full record in this matter, Respondent is found to have used a pesticide in violation of labeling instructions, allowed a release of said pesticide into the outdoor atmosphere and removed or allowed the removal of a quarantined canister of compressed gas without the permission of the Department.

III. Respondent Milton Costell is assessed a civil penalty of $2,000 (Two Thousand Dollars) for each of the three violations for a total penalty of $6,000 (Six Thousand Dollars) with one half of that penalty, ($3,000), to be paid by cashier's check, certified check or money order made payable to "NYSDEC" within 30 days of service of this Order for the violations asserted in the complaint. Said penalty shall be paid to NYS DEC, Region 1 Office, Division of Legal Affairs, Building 40, SUNY Campus, Stony Brook, New York 11790-2356.

IV. The remaining one half of the assessed penalty ($3,000.00) is suspended provided that the Respondent :

refrains from operating a compressed chlorine gas pool chlorination system at his residence. The suspended penalty shall be due and owing immediately if Respondent fails to comply with any portion of this Order.

V. All communications between the Respondent and the Department Staff concerning this Order shall be made to the Department's Region 1 Director, New York State Department of Environmental Conservation, Region 1 Office, SUNY Stony Brook, Building 40, Stony Brook, New York 11790-2356.

VI. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants and employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

/s/
______________________________
By: Erin M. Crotty, Commissioner

Albany, New York
April 8, 2003

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

In the Matter

- of-

the alleged violations of the Environmental
Conservation Law Articles 19, 33 and 71 and Title 6
of the Official Compilation of Codes, Rules and
Regulations of the State of New York (6 NYCRR)
Parts 325 and 211 by

MILTON COSTELL

DEC File No. R1-2000927-72

HEARING REPORT

- by-

/s/
__________________________________
Molly T. McBride
Administrative Law Judge

PROCEEDINGS

Pursuant to Part 622 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 622") an administrative enforcement hearing was held to consider allegations by the New York State Department of Environmental Conservation (the "Department", "Department Staff") against Milton Costell (the "Respondent").

The Department Staff alleged that the Respondent violated Environmental Conservation Law ("ECL") Articles 19 and 33 and 6 NYCRR Parts 325 and 211. The violations are alleged to have occurred on or about May 22, 2000 and December 15, 2000. It is alleged that the Respondent caused or allowed chlorine compressed gas to be attached to a pool filtration system at his residence located at 4 Sandstone Lane, Stony Brook, New York in violation of labeling restrictions; that he allowed a release of compressed chlorine gas into the outdoor atmosphere at his residence; that he removed or disposed of or allowed the removal and disposal of a quarantined pesticide without Department permission at his residence.

This enforcement proceeding was commenced by Staff in October, 2000 by service of Notice of Hearing and Complaint. The Respondent timely served an Answer denying the essential allegations of the complaint.

By motion dated February 14, 2001 Staff moved to amend the Complaint to include additional allegations of violations. The motion was served on the Respondent and the Office of Hearings and Mediation Services. The matter was assigned to Administrative Law Judge ("ALJ") Molly T. McBride. Respondent was granted two extensions of time to answer and/or oppose the motion and no response was received. By ruling dated May 2, 2001, the Staff's motion to amend the Complaint was granted. An amended Complaint was served. The amended Complaint included the violations alleged in the original Complaint and alleged that Respondent violated Environmental Conservation Law ("ECL") sections 33-1301(10) and 33-1503(1) in that he removed a quarantined item (can of compressed chlorine gas) without the Department's permission.

No Answer was served by Respondent with respect to the amended Complaint.

A pre-hearing conference was held on September 13, 2001. Both parties were in attendance. The Respondent appeared pro se. The Respondent was advised of his right to counsel and he indicated his intention to proceed pro se. An adjudicatory hearing was scheduled for November 8 & 9, 2001.

The hearing was conducted on November 8, 2001 at the Department's Region 1 office located in Stony Brook, New York. The Respondent again appeared pro se. The Respondent was again advised of his right to counsel and again he indicated his preference to proceed pro se. The Department was represented by Karen Murphy, Esq., regional attorney for the Department's Region 1 office.

The following witnesses testified on behalf of the Department: Raymond Cowan, Regional Director of the Department's Region 1 office; Robert McDermott, Investigator with the Department's Division of Law Enforcement for the Region 1 office; Leo DeBobes, volunteer firefighter with the Seatucket Fire Department; Anthony LoManno, Pesticide Control Specialist for the Department's Region 1 office; Daniel Hershey, Research Scientist 3 with the Department's central office and the following witnesses testified on behalf of the Respondent: Thomas Cicale, golf course superintendent and the Respondent himself.

By letter dated December 3, 2001 the Respondent served a Motion to Dismiss. The motion was supported by the petition of the Respondent, Milton Costell. Staff opposed the motion by Objections to Motion to Dismiss dated December 6, 2001. For the reasons stated herein, the motion is denied.

Motions to Dismiss are governed by Civil Practice Law and Rules ("CPLR") Rule 3211. Rule 3211 identifies 11 grounds for such a motion. The Respondent does not identify what grounds he is basing the motion on or even that he is basing the motion on Rule 3211.

A review of the motion clearly shows that it is no more than a summary of the defenses asserted at the hearing held herein. No new evidence is presented, no procedural defect is noted and no new defense is established. The motion recites the following defenses: the use of the gas is "grandfathered" due to the length of time that it has been used by the Respondent; the chlorine cylinder at issue was removed while under the Department's quarantine at the Respondent's direction because it was "out of date"; no harm was done by the gas release and the actual damage to neighboring trees was as a result of infestation from a parasite. Respondent also bases his motion on the arguments that one witness lied under oath and another witness or witnesses gave incorrect dates for events that occurred. None of these arguments are proper grounds for a motion to dismiss as outlined in the Rule 3211 of the CPLR. The motion is deficient on its face and must be denied.

The hearing record closed on December 14, 2001, upon completion of the hearing and receipt of the transcript of the proceedings.

POSITION OF THE PARTIES

Department

The Department contends that the Respondent violated the above noted statutes and regulations in that he caused or allowed compressed chlorine gas to be used with his residential swimming pool system in violation of labeling instructions and that a release of that gas occurred on or about May 22, 2000. Further, after the release of the gas the Department quarantined the canister of compressed chlorine gas that was found at Respondent's property and subsequently that Respondent removed or disposed of that quarantined item without Department permission. Staff has asked for a penalty of not to exceed the maximum amount allowed under the ECL, without stating a specific amount.

Respondent

The Respondent contends that his use of the gas was not a violation of the ECL in that his system was not the ordinary residential pool filtration and chlorination system. Also, he alleges that his use was "grandfathered" due to the length of time that he used the gas at his residence. Finally, he claims that the canister of gas was removed by the owner of the canister, the company that he ordered the canister from, because the canister was expired. He claims that it was properly disposed of whether he had sought permission from the Department before it was removed or not.

ISSUES FOR ADJUDICATION

Four issues were presented for adjudication:

(1) Was chlorine compressed gas used at the Respondent's residence?

(2) Was there a release of compressed chlorine gas at the Respondent's residence?

(3) Did the Respondent remove or authorize the removal of the quarantined tank?

(4) Were the acts of the Respondent in violation of the ECL and the cited regulations?

FINDINGS OF FACT

1) The Respondent did have a canister of compressed chlorine gas attached to his swimming pool filtration/chlorination system at his residence at 4 Sandstone Lane, Stony Brook, New York on May 22, 2000.

2) There was a release of chlorine gas from the Respondent's filtration system into the outdoor atmosphere on May 22, 2000.

3) The Respondent used the compressed chlorine gas filtration system at his property in excess of 30 years.

4) The use of compressed chlorine gas by the Respondent at his residential swimming pool was in direct violation of the labeling restrictions. The label on the canister stated that it was to be used in industrial and commercial swimming pools only.

5) Chlorine gas is a registered general use pesticide in New York State. (T. 47)* ECL §33-0101 (34) & (35) define the terms "pest" and "pesticide" and chlorine gas meets the definition of "pesticide" in subparagraph (35).

6) The release of compressed chlorine gas on May 22, 2000 resulted in damage to adjoining property owners' plants and trees.

7) The Department Staff quarantined the canister of compressed chlorine gas at issue on ___________________________________________________________

*Numbers in parenthesis refer to pages in the hearing transcript.

or about July 6, 2000. The Respondent was served with a copy of the quarantine order on that day. The order directed that the canister was not to be moved or allowed to be removed or otherwise handled or disposed of without written permission of the Department. The canister in question was also labeled with the quarantine information in orange labeling. That labeling directed that the canister was not to be moved or removed or disposed of without the consent of the Department.

8) The Respondent allowed the quarantined canister to be removed from his property, without written consent of the Department, in December, 2000. The canister was removed by Universal Chemical after the Respondent contacted them and advised them that the canister was out of date.

DISCUSSION

The Respondent has admitted to the allegations of the amended complaint. At the hearing in this matter the Respondent admitted to using the compressed chlorine gas with his pool filtration system. The Respondent admitted that he had used the compressed chlorine gas filtration/chlorination system at his residence in excess of 30 years, without incident. He acknowledged that there was a release of the gas from his system on May 22, 2000. He admitted that the quarantined canister was removed after he contacted the supply company and advised them that the tank was out of date. He admitted that he did not have the Department's permission to move or allow the canister to be removed from his property. Chlorine gas is labeled for use in waste water treatment facilities for disinfection. Its label clearly states that it is not to be used in residential areas.

The arguments made by the Respondent in defense of his actions are that he had used the system in excess of 30 years without incident and that demonstrates that the system is safe. Also, he has argued that his system is "grandfathered" because he has used it for such a long period of time. The Respondent has offered no legal authority in support of his theory that his system is "grandfathered".

The Respondent also challenged the methods employed by the Department during its investigation and the subsequent enforcement case. He challenged the Department entering his property for the initial inspection on a Friday evening, his Sabbath. Raymond Cowan, Regional Director for the Department's Region 1 office testified that he received a call at the end of the work day on Friday, June 1, 2000 regarding a possible release of chlorine gas from a swimming pool. He traveled to the neighboring property and investigated. He observed obvious damage to trees and shrubs on the properties that bordered the rear of the Respondent's property. With the assistance of binoculars he observed two canisters that he knew held some form of compressed gas in the Respondent's yard. One of the neighbors was able to read the canisters labeling and reported that it said "chlorine gas" and "inhalation danger". Due to his concern, he asked for an Environmental Conservation Officer and the local Fire Marshall to go with him to the Respondent's home that evening.

Based upon the foregoing account above, I am satisfied that the serious nature of the matter required the prompt action of the Department personnel. I do not believe that their actions on June 1, 2000 were intended to harass the Respondent as contended by the Respondent at the hearing. It is important to note that the Respondent allowed the Department personnel and Fire Marshall to enter his property that evening. Moreover, that evening inspection was the first time that the Department entered the Respondent's property. Thereafter, three more visits were made. On the first of these 3 occasions the Respondent met with the Department's investigator and provided more information regarding the use of the gas. On the second visit the Department was denied access and on the final visit Department Staff came with an administrative warrant allowing them to enter and inspect the property. It was on this third visit that the canister was quarantined.

Nothing in the record indicates a pattern of abuse or harassment by Department Staff.

The Respondent has challenged both the methods used in this enforcement proceeding, namely the visits to his home, and the fines requested by the Department. The Respondent testified regarding his current financial situation and argued that this justified a lower fine or no fine. He testified that he is retired, that his personal residence is his main asset and that both he and his wife are in poor health. The Respondent has had at least 2 surgeries in the last 12 months. Both he and his wife take several costly medications on a daily basis. These financial factors combined warrant a significantly lower fine that requested by Staff, according to the Respondent.

CONCLUSIONS OF LAW

1) 6 NYCRR 622.11(b) (1) states: "The Department bears the burden of proof on all charges and matters which they affirmatively assert in the instrument which initiated the proceeding."

2) The Respondent has admitted to all of the violations alleged by the Department. The Department also supported all of the allegations with sufficient proof at the hearing held herein.

3) Chlorine gas is a pesticide as defined in the ECL.

4) The Respondent did utilize compressed chlorine gas in his personal residence swimming pool filtration/chlorination system in direct contradiction of the labeling instructions on the canisters at the Respondent's residence. The use in contradiction to labeling instructions constitutes a violation of 6 NYCRR 325.2(b).

5) There was a release of this gas from the Respondent's property on May 22, 2000 and that release constitutes a violation of 6 NYCRR 211.2.

6) The Respondent allowed a compressed chlorine gas canister that was under quarantine to be removed from his property. This constitutes a violation of ECL 33-1301(10) and 33-1503(1).

7) ECL Section 71-2103 dictates the penalties that may be assessed for violations of the ECL Article 19 and its implementing regulations. The penalty shall be not less than $250.00 for a first violation nor more than $10,000 with an additional penalty not to exceed $10,000 for each day that the violation continues.

8) The Department has met its burden of proof that the Respondent violated Article 19 of the ECL by allowing a release of chlorine gas into the outdoor atmosphere. This incident is a first violation for the Respondent and there has been no proof submitted that the violation continued on after the release of gas on May 22, 2000.

9) The Department has met its burden of proof that the Respondent violated ECL 33-1301 by allowing the removal of the quarantined canister. ECL Section 71-2907 provides for a penalty not to exceed $5,000.00 for any violation of ECL Article 33 and/or ECL 33-1301. The violation was a first violation.

10) The Department has met its burden of proof that the Respondent violated ECL Article 33 and its implementing regulations, 6 NYCRR 325.2(b), by using compressed chlorine gas with his pool system in a residential area in violation of labeling restrictions. ECL Section 71-2907 provides for a penalty not to exceed $5,000.00 for any violation of ECL Article 33. The violation was a first violation.

11) ECL Section 71-2115, entitled "Penalty assessment criteria" identifies the penalty assessment criteria to be examined in determining the appropriate penalty. These criteria include the good faith efforts to comply, compliance history, economic benefit from the noncompliance as well as the risk or damage to the public health or the environment caused by the violator, "... or such other factors as justice may require."

CONCLUSION

The Respondent has admitted the acts that constitute the violations alleged by the Department. The use of the compressed chlorine gas and the risk for serious injury to the public and the environment were apparently not considered or not understood by the Respondent. The Respondent testified that he is a professional engineer who has had a long career in the design and construction of commercial and municipal swimming facilities. Therefore, his specialized knowledge and experience should have made him more aware of the potential dangers of his actions in using the chlorine gas at his private residence. Instead, it appears that he had a sense of confidence in what he was doing based upon his professional experience. The fact that the system worked for over 30 years before a failure occurred is not helpful to his defense. The system was being operated in direct violation of the ECL and its implementing regulations. The fact that he operated without detection and without incident before this time does not alter that fact. The potential for harm from the release of such a dangerous gas was overwhelming. Fortunately, the local fire department was equipped to send in qualified personnel with the appropriate safety equipment to turn off the leaking tank before any persons could be harmed. It is fortunate that no one was seriously injured.

The Respondent showed the good sense to not attempt to use the system again after the leak. However, he clearly would continue to utilize this chlorination system if allowed by the Department.

I have taken into consideration the financial circumstances of the Respondent. He is in his mid 70's and retired. He has suffered health problems in the past year as has his wife.

The Department's Civil Penalty Policy Enforcement Directive 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. In reviewing those factors here it is clear that the violation was quite serious. The criteria of ECL 71-2115 should be examined along with this policy.

ECL 71-2115 criteria includes a good faith effort to comply. There was no proof offered that the Respondent continued the operation of the system after the leak. However, by his own admission, he did not comply with the quarantine order. Nothing was presented to show that the Respondent has a history of prior violations which is also a criteria under ECL 71-2115.

Both the Department's Civil Penalty Policy Enforcement Directive and ECL 71-2115 identify economic benefit as a factor in determining an appropriate penalty. No proof was offered as to a benefit to the Respondent in using the chlorination system. I can not see any obvious cost benefit or any other economic benefit he may have realized from using this system. Both the Policy and ECL §71-2115 also look to the gravity of the violation or the risk or actual damage done as a result of the violation. As noted, the potential for injury to persons, wildlife and vegetation was great. Fortunately, the actual harm was minimal. No persons were injured and the damage to the neighboring plant life was notable but not devastating.

When these criteria are viewed in light of the actual damages that occurred, the Respondent's violation of the quarantine order but his cooperation in not using the system again after the leak, as well as his current financial circumstances, a penalty less than the maximum appears to be warranted. Staff has asked for an amount not to exceed the maximum penalty allowed under the ECL. I do not believe the maximum penalty is warranted here in light of the facts and circumstances. The maximum penalty allowed by statute would be $5,000.00 for each of the two violations of ECL Article 33 and $10,000.00 for the violation of Article 19 for a total penalty of $20,000.00.

RECOMMENDATION

The Respondent has admitted to all of the violations and I recommend an Order be issued reflecting that. As to the penalties for th violations, based upon the criteria listed in ECL 71-2115, I recommend a total fine of $6,000.00, $2000.00 for each of the three violations.

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