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Doran, Martin H. and Almag Construction, Inc. - Order, September 12, 2002

Order, September 12, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

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

- by -

Martin H. Doran
Almag Construction, Inc.

RESPONDENTS

Order

DEC File No.: R4-2254-12-99

WHEREAS:

  1. Pursuant to a notice of hearing and complaint dated November 7, 2000 a hearing was held pursuant to 6 NYCRR Part 622 before Administrative Law Judges Daniel P. O'Connell and Maria E. Villa on February 26, 2002 which continued on March 5, 2002 at the Department's Region 4 Offices in Schenectady, NY. The Department of Environmental Conservation was represented by Ann Lapinski, Esq., Assistant Regional Attorney. At the hearing on February 26, 2002, Respondent, Martin H. Doran appeared pro se, but was represented by William Stroffoleno on March 5, 2002.
  2. Although duly served with a copy of the notice of hearing and complaint, Almag Construction, Inc. (Almag) did not answer the Department's November 7, 2000 complaint, attend a pre-hearing conference scheduled for December 5, 2000, or appear at the hearing on February 26, 2002 or March 5, 2002.
  3. At the hearing, Mr. Doran stated that he was not representing Almag. However, he is the former president of the corporation. Accordingly, I adopt the discussion in the attached Hearing Report concerning the Department's default motion against Almag, and conclude that personal service upon Mr. Doran, as the former president of Almag, was consistent with the requirements set forth in 6 NYCRR Section 622.3(a)(3) to obtain personal jurisdiction over the Respondent corporation, Almag Construction, Inc.
  4. Pursuant to 6 NYCRR Section 622.15, the Respondent, Almag Construction, Inc., defaulted and waived its right to a hearing in this enforcement proceeding. Accordingly, the allegations asserted in the Department's complaint dated November 7, 2000, are deemed to have been admitted by Almag.
  5. Upon review of the hearing record, I hereby adopt the Findings, Conclusions and Recommendation outlined in the attached Hearing Report as my own, subject to the comments below.
  6. Based on the record before me, I conclude that since November 1, 1999 the Respondents, Martin H. Doran and Almag Construction, Inc., have operated a solid waste management facility without a permit from the Department in violation of 6 NYCRR Section 360-1.7(a)(1)(i). I conclude further that the storage and disposal of solid waste in the form of waste tires at the Site without a permit is a violation of 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-13.1(b), and that this violation has continued from November 1, 1999 to the present.
  7. Moreover, the Respondents' storage and disposal of solid waste in the form of abandoned house trailers at the Site without a permit is a violation of 6 NYCRR Sections 360-1.7(a)(1)(i) that has continued from November 1, 1999 to the present
  8. Finally, the Respondents' storage and disposal of solid waste in the form of construction and demolition debris, and other solid waste, at the Site without a permit is a violation of 6 NYCRR Section 360-1.7(a)(1)(i) that has continued from November 1, 1999 to the present.

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

  1. The Respondent, Martin H. Doran and Almag Construction, Inc. are jointly and severally assessed a total civil penalty in the amount of $88,000, which shall be payable within 30 days after service of a conformed copy of this order upon the Respondents. For the three violations, the civil penalty is apportioned as follows: $50,000 for disposing 110,000 tires on the Site, plus an additional $2,000 in consideration of the continuous nature of the violation; $26,000 for the trailers ($1,000 per 26 trailers); and $10,000 for the remaining C&D debris.
  2. The Respondents shall immediately cease the acceptance of any solid waste materials at the Site, including, but not limited to, tires, house trailers, construction and demolition debris, and any other solid waste, as that term is defined in 6 NYCRR Part 360.
  3. Within 30 days after service of a conformed copy of this order upon the Respondents, the Respondents shall submit a plan for the Department's approval which details measures to provide security at the Site and to discourage vandalism or arson. The plan shall also provide for the protection of the environment and natural resources adjacent to the Site. The plan may include, but is not limited to, the erection of a fence, berming, or any other measures to provide security and protect the environment and natural resources adjacent to the Site, in the event of a tire fire, arson, or vandalism. The Respondents shall implement the plan within 15 days after the Department approves it.
  4. Within 30 days after service of a conformed copy of this order upon the Respondents, the Respondents shall remove all waste tires from the Site and dispose of those tires at an authorized facility. The Respondents shall remove a minimum of 2,000 tires, or two tractor trailer loads of tires, per week for 52 weeks per year for a total minimum of 104,000 tires per year. The Respondents shall provide receipts to the Department on the first day of each month documenting the disposal or recycling of the waste tires.
  5. Within 45 days after service of a conformed copy of this order upon the Respondents, the Respondents shall submit to the Department a Site Investigation (SI) plan, which must set forth the extent of the environmental contamination at the Site, as well as an inventory of all solid waste present at the Site, including buried and surface waste. The Plan must be prepared and submitted under seal of a licensed professional engineer in the State of New York.
  6. Within 45 days after the Department approves the SI plan, the Respondents shall submit a Site Remediation Report (SRR), that will set out the necessary remedial actions and a schedule to implement those actions. The SRR shall be prepared and submitted under seal of a licensed professional engineer in the State of New York. Within 15 days after approval of the SRR by the Department, the Respondents shall implement the remedial activities set forth in the SRR.
  7. Except for the disposal of waste tires, as outlined above, the Respondents shall remove all remaining waste, and shall remediate the Site as detailed in the SRR within 120 days after the Department approves the schedule outlined in the SRR. The Respondents shall provide receipts for waste removal to the Department within 10 days of waste removal.
  8. All communications between Respondents, Martin H. Doran and Almag Construction, Inc., and the Department concerning this Order shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306-2014.
  9. 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: Erin M. Crotty, Commissioner

Dated: Albany, New York
September 12, 2002

To: Martin H. Doran
Kennedy Towers, Apt. 15F
Troy, New York 12180

Almag Construction, Inc.
c/o Martin H. Doran
Kennedy Towers, Apt. 15F
Troy, New York 12180

William Stroffoleno
35 Grace Street
Waterford, New York 12188

Ann Lapinski, Esq.
Assistant Regional Attorney
NYS DEC, Region 4
1150 North Westcott Road
Schenectady, New York 12306-2014

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

625 BROADWAY
ALBANY, NEW YORK 12233-1550

In the Matter

-of-

the 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-

MARTIN H. DORAN

and

ALMAG CONSTRUCTION, INC.

Case No. R4-2254-12-99

HEARING REPORT

-by-

____________/s/____________

Maria E. Villa

Administrative Law Judge

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

Proceedings

The New York State Department of Environmental Conservation (the Department) commenced this administrative enforcement matter by personal service of a notice of hearing and complaint, dated November 7, 2000, upon Respondent William Stroffoleno on November 10, 2000, and upon Respondents Martin H. Doran and Almag Construction, Inc. (Almag) (collectively, the Respondents) on November 16, 2000. In its complaint, the Department asserted that, since November 1, 1999, the Respondents have been operating a solid waste management facility without a permit from the Department in violation of Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR) Sections 360-1.7(a)(i) and 360-13.1(b). The complaint alleges that the Respondents discarded more than 110,000 tires, 26 trailers, and other solid waste in the form of construction and demolition (C&D) debris on a site located off Route 67 in the Town of Pittstown, Rensselaer County (the Site).

On December 5, 2000, the Messrs. Doran and Stroffoleno, and representatives of the Department participated in a pre-hearing conference, held pursuant to 6 NYCRR Section 622.8, at the Department's Region 4 Offices. Subsequently, Messrs. Doran and Stroffoleno filed answers to the complaint. Mr. Doran's answer, dated February 8, 2001, states that "[a]t no time during court action have I been an officer of Almag." Exhibit 24. Similarly, Mr. Stroffoleno's answer, dated February 9, 2001, states that he has never been an officer or employee of Almag. Id. By letter dated January 24, 2002, the Department withdrew the charges alleged against Mr. Stroffoleno.

With a cover letter dated January 10, 2002, the Department filed a statement of readiness. The hearing commenced on February 26, 2002 at the Department's Region 4 Offices, and continued on March 5, 2002 at the same location before Administrative Law Judges (ALJs) Maria E. Villa and Daniel P. O'Connell.

The Department appeared by Ann Lapinsiki, Esq., Assistant Regional Attorney, and called Environmental Conservation Officer (ECO) John McLean; Dwight Partridge, Assistant Land Surveyor; Richard Forgea, P.E., Regional Solid Waste Engineer, DEC Region 4; William Blain, Spill Responder; and Douglas Delurey, Junk Control Officer, Town of Pittstown as witnesses. When the hearing continued on March 5, 2002, the Department called ECO McLean to verify his affidavit, which was prefiled before the hearing commenced on February 26, 2002.

On February 26, 2002, Martin H. Doran appeared on his own behalf, and stated in response to a question from ALJ O'Connell that he was not representing Almag. Transcript (Tr.) at p. 7. Then, on March 5, 2002, Mr. Stroffoleno appeared on behalf of Mr. Doran. Mr. Stroffoleno is not an attorney, but stated that he does advocacy work on behalf of disabled veterans and other persons, and that he had represented Mr. Doran in connection with an action against the State in the Court of Claims, and in a bankruptcy matter. Tr. at p. 228. After ECO McLean took the witness stand to verify his affidavit, Mr. Stroffoleno stated that he had no cross-examination for the Conservation Officer. Tr. at p. 235. Mr. Stroffoleno stated further that he would not call any witnesses.

The record of the proceeding closed on April 8, 2002.

Summary of Motions

Prior to, and during, the adjudicatory hearing the Parties made various motions. They are discussed briefly below.

The Department's Motion to Compel Disclosure and Motion to Preclude

On March 11, 2001, the Department personally served the Respondents with copies of a notice to produce dated February 27, 2001. The Department requested information about Almag Construction, Inc., its officers and employees, as well as consultants and contractors who were hired by Almag. The Department also requested income tax and sales tax records. When the Respondents did not reply to the Department's discovery demand, the Department moved to compel disclosure in a motion dated June 5, 2001.

The Respondents did not move for a protective order, as provided for by 6 NYCRR Section 622.7(c)(1), or otherwise object to the Department's motion to compel disclosure. Accordingly, in a ruling dated July 1, 2001, ALJ O'Connell granted the Department's motion, and directed the Respondents to reply to the Department's February 27, 2001 notice to produce.

With a cover letter dated September 14, 2001, the Department filed a motion to preclude the information initially sought in its February 27, 2001 notice to produce. Subsequently, the Department re-served the motion with a cover letter dated September 18, 2001 because the initial motion was not signed. Then, with a cover letter dated September 25, 2001, the Department filed a corrected affirmation. As of September 25, 2001, the Respondents had not complied with the disclosure directed by the ALJ's July 1, 2001 ruling.

The Office of Hearings and Mediation Services did not receive a timely reply or objection from the Respondents concerning the Department's September, 2001 motion to preclude. In a ruling dated October 16, 2001, ALJ O'Connell granted the Department's motion. The ruling also pointed out that the Commissioner and the ALJ may draw the inference, authorized by 6 NYCRR Section 622.7(c)(3), that the material demanded by the Department is unfavorable to the Respondents' position(s).

Respondent's Motions for Subpoenas

Prior to the hearing, Mr. Doran requested subpoenas from ALJ O'Connell pursuant to the authority provided at 6 NYCRR Section 622.7(d) and Section 622.10(b)(1)(iv) to compel the attendance of Christian Glander, a member of Department Staff, and ECO Linda Acierno.

ALJ O'Connell granted the requested subpoenas. With a cover letter dated February 13, 2002, ALJ O'Connell sent the subpoenas to Mr. Doran. Mr. Doran subsequently served ECO Acierno, but not Mr. Glander.

On February 19, 2002, Mr. Doran requested additional subpoenas, and that request was discussed during the hearing on February 26, 2002. After hearing arguments, ALJ O'Connell quashed the subpoena for ECO Acierno sua sponte because Mr. Doran had not paid the requisite appearance fee. Tr. at p. 212. In addition, the ALJ quashed the subpoena for Christian Glander, which had never been served, because the Respondent's intention, as stated on the record, was to elicit expert testimony from Mr. Glander as the Department's tire recycling expert. Tr. at pp. 212-13. The ALJ pointed out that Mr. Glander, who has no personal knowledge of this matter, could not be compelled to testify merely because of his expertise. See, Gilly v. City of New York, 69 N.Y.2d 509, 511-512 (1987) (disinterested persons should not be "drawn into litigation on limitless occasions because of their distinctions and attainments" and compelled to give expert testimony); citing People ex rel. Kraushaar Bros. & Co. v. Thorpe, 296 N.Y. 223 (1947) (expert should not be compelled to testify against his will). The ALJ informed Mr. Doran of his right to retain an expert to testify on his behalf. Tr. at pp. 213-14.

ALJ O'Connell ruled further that he would issue the subpoenas requested for ECO Wayman and Town Supervisor Salisbury. Tr. at pp. 214-15, 217. Nevertheless, Mr. Doran withdrew his request for those subpoenas. Tr. at p. 220. ALJ O'Connell declined to issue the remainder of the requested subpoenas, due to the irrelevant nature of the testimony proposed to be elicited. ALJ O'Connell denied Mr. Doran's subpoena request for Ms. Lapinski, who is the Department's counsel for this matter. Tr. at pp. 216-17.

Respondent's Motion to Dismiss

As explained above, the hearing continued as scheduled on March 5, 2002. After the Department called ECO McLean to verify his affidavit and he was made available for cross-examination, the Respondent said that he had no cross-examination for ECO McLean. Tr. at p. 235. The Department rested, and the Respondent stated that he would not call any witnesses. Rather, the Respondent moved to dismiss the charges alleged in the complaint. Tr. at p. 236-39. After hearing arguments from the Parties, ALJ Villa denied the motion without prejudice. Since she is not the final decision maker, ALJ Villa explained that only the Commissioner could dismiss charges after considering a complete record.

The Department's Motion for Default Judgment

Before the hearing concluded on March 5, 2002, the Department moved for a default judgment against Almag. ALJ Villa directed the Department to make that motion in writing. The Department filed its motion on March 28, 2002. Mr. Doran was provided with an opportunity to reply, by April 8, 2002 (Tr. at p. 249), but did not. For the reasons discussed below, we recommend that the Commissioner grant the Department's motion for default judgment.

Findings of Fact

  • The Site is located on a parcel of real property on Route 67 in the Town of Pittstown, Rensselaer County, New York. Martin H. Doran owned the Site prior to April 22, 1996, whereupon ownership was transferred to Almag Construction, Inc.
  • Douglas Delurey is the Junk Control Officer for the Town of Pittstown. On several occasions, Mr. Delurey was at the Site and observed waste tires, trailers and C&D debris there.
  • Richard Forgea, P.E., Regional Solid Waste Engineer for DEC Region 4, inspected the Site on November 1, 1999, May 11, 2000, and October 23, 2000. On each occasion, the amount and character of the material on the Site was essentially the same. Mr. Forgea observed: (a) approximately 110,000 waste tires; (b) about 26 used trailers; and (c) C&D debris, as well as debris removed from the trailers, and several abandoned vehicles.
  • The Department has not issued a permit, pursuant to 6 NYCRR Part 360, to Respondents, Martin H. Doran and Almag Construction, Inc., to operate a solid waste management facility at the Site.
  • A fire had occurred at the Site, and the risk of fire continues. The potential adverse environmental impacts from a tire fire are two fold. First, there is the possibility of petroleum contamination as the melted tire materials mix with the water used to extinguish the blaze. Second, a tire fire may release toxic air contaminants that could adversely affect nearby residents. In addition, the tires pose a public health risk because they provide a breeding ground for mosquitos that may carry the West Nile virus.
  • On March 25, 1992, Almag Construction, Inc., which had been a New York State corporation, was dissolved by proclamation of the NYS Secretary of State.
  • On November 16, 2000, ECO David C. Wayman served a copy of the Department's notice of hearing and complaint, dated November 7, 2000, upon Almag Construction, Inc. by personally delivering a copy of the notice of hearing and complaint to Martin H. Doran, the former president of Almag Construction, Inc.
  • The Department's notice of hearing states that an answer to the complaint was due within 20 days after service of the notice of hearing and complaint. In addition, the notice of hearing scheduled a pre-hearing conference for December 5, 2000 at the Department's Region 4 Offices. The notice advises that the Respondents' failure to answer the complaint or appear at the pre-hearing conference would result in a default and waiver of the Respondents' right to a hearing.
  • Almag Construction, Inc., did not file any answer or appear at the pre-hearing conference held on December 5, 2000. Almag Construction did not appear at the adjudicatory hearing on February 26, 2002, which then continued on March 5, 2002.

Discussion

The Department's complaint asserts three causes of action. The first cause of action alleges that the Respondents operated a solid waste management facility because the Respondents stored or disposed of 110,000 tires on the Site without a permit from the Department. According to the Department, the Respondents' actions are violations of 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-13.1(b), and those violations have continued from November 1, 1999 to the present.

The second cause of action in the complaint alleges that the Respondents operated a solid waste management facility, without a permit from the Department, when the Respondents stored or disposed of 26 used trailers on the Site. According to the Department, the Respondents' actions are a violation of 6 NYCRR Section 360-1.7(a)(1)(i), that has continued from November 1, 1999 to the present.

The third cause of action alleges that the Respondents operated a solid waste management facility when the Respondents stored or disposed of other debris such as furniture, electrical fixtures and abandoned vehicles on the Site without a permit from the Department. According to the Department, the Respondents' actions are a violation of 6 NYCRR Section 360-1.7(a)(1)(i) that has continued from November 1, 1999 to the present.

Liability of Respondent Martin H. Doran

A "solid waste management facility" is defined, in pertinent part, at 6 NCYRR Section 360-1.2(b)(158) as:

any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to: storage areas or facilities; transfer stations; . . . landfills; disposal facilities . . . C & D debris processing facilities; . . . recyclables handling and recovery facilities; waste tire storage facilities . . .

"Operation" of a solid waste management facility is defined, in pertinent part, at 6 NYCRR Section 360-1.2(b)(111), to include "operation of the facility after initial receipt of solid waste." An "operator" or "facility operator" means:

the person responsible for the overall operation of a solid waste management facility or a part of a facility with the authority and knowledge to make and implement decisions, or whose actions or failure to act may result in noncompliance with the requirements of this Part . . .

A "person," as defined at 6 NYCRR Section 360-1.2(b)(117), means "any individual, public or private corporation . . . or any other legal entity whatsoever."

The solid waste regulations contain a number of provisions which prohibit unpermitted disposal of solid waste. "Solid waste" is broadly defined at 6 NYCRR Section 360-1.2(a)(1), and that section also contains a specific definition of construction and demolition debris, at 6 NYCRR Section 360-1.2(b)(38). Moreover, Section 360-13(b) of 6 NYCRR provides that "[n]o person shall engage in storing 1,000 or more waste tires at a time without first having obtained a permit to do so pursuant to this part." Section 360-1.7(a)(1)(i) provides that "no person shall construct or operate a solid waste management facility, or any phase of it, except in accordance with a valid permit issued pursuant to this Part."

To demonstrate the violations alleged in the Complaint, the Department called Douglas Delurey, the Town of Pittstown's Junk Control Officer. Mr. Delurey testified that he had observed tires, mobile homes, and a couple of vehicles at the Site. Tr. at p. 148. Mr. Delurey opined that those items were within the purview of the Town's Junk Control Law, and testified that Mr. Doran had given him a flyer entitled "Mobile Home Disposal Dilemma." Mr. Delurey explained that this flyer meant that Mr. Doran was accepting mobile homes at the Site. Tr. at pp. 149-150, Exhibit 23. Mr. Doran offered nothing to refute Mr. Delurey's testimony, and we therefore assign it significant weight.

In addition to Mr. Delurey's testimony, the Department also offered Richard Forgea, P.E., who is Regional Solid Waste Engineer for DEC Region 4. Mr. Forgea testified that he inspected the Site on November 1, 1999 in his official capacity. Tr. at p. 56. On that date, he observed approximately 60,000 to 100,000 tires, junked house trailers, and debris. Id. Mr. Forgea testified further that the Site was not secured in any manner, nor was there any means of controlling access to the Site. Id.

Mr. Forgea inspected the Site on May 11, 2000, and October 23, 2000. On those two occasions, he observed a total of 26 house trailers on the Site, as well as debris and household waste. Tr. at pp. 58, 59-60. The tires were still present on the Site. Tr. at p. 58. Through

Mr. Forgea's testimony, the Department introduced photographs of the Site, and Mr. Forgea testified about what was depicted in those photographs. Tr. at pp. 64-70; Exhibit 14. One of the photographs showed a trailer that had burned. Tr. at p. 65; Exhibit 14. Other photographs showed the various tire piles, and deteriorated trailers. Tr. at pp. 66 and 68; Exhibit 14.

Mr. Forgea testified that the Department had not issued a permit for the Site, and that the waste material on the Site, including the tires, C&D debris, and house trailers, was such that the Site constituted a solid waste management facility. Tr. at pp. 71-72. Mr. Forgea testified further that there was no evidence of any recycling activities taking place with respect to the material at the Site. Tr. at pp. 73-75.

During the proceeding, Mr. Doran stated(1) that he was going to recycle the tires, and that after he refurbished the trailers, he would sell them. Mr. Doran, however, did not offer anything to contradict the testimony presented by Messrs. Delurey and Forgea. Based on the unrefuted testimony of these witnesses, about 110,000 waste tires, 26 used trailers, and C&D debris, which includes debris removed from the trailers, and several abandoned vehicles have been disposed of on the Site without a permit from the Department.

Consequently, the Respondent, Martin H. Doran, is an operator of a solid waste management facility, based on the regulatory definitions identified above. Mr. Doran is a "person" within the meaning of the regulations. Waste tires, C&D debris, and junked trailers, which fall within the definition of solid waste, are present at the Site. There is no indication of any recycling activity with respect to the solid waste in question, and it is undisputed that the Department has not issued any permit to the Respondents to operate a solid waste management facility at the Site. Therefore, the Department demonstrated each of the three causes of action alleged in the complaint.

The Department's Motion for Default Judgment Against Respondent Almag

The Department introduced into evidence a certified copy of a certificate of incorporation from the New York State Department of State. Tr. at p. 75; Exhibit 15. The certificate is dated July 7, 1975, and was signed by Martin H. Doran. The Department also introduced a certified copy of a certificate of merger. The certificate of merger shows that Doran Excavating, Inc. and Almag Construction, Inc. merged in September of 1981. Exhibit 16. Finally, the Department offered a certified copy of a document from the NYS Department of State indicating that Almag Construction, Inc. had been dissolved by proclamation on March 25, 1992. Tr. at pp. 76-78; Exhibits 16 and 17.

At the hearing, the Department moved for a default judgment against Almag, pursuant to 6 NYCRR Section 622.15, and filed papers in support of the motion. These include an Affirmation of Ann Lapinski in support of the motion, a memorandum of law, and a proposed order. In its memorandum of law, the Department argues that Mr. Doran continued to "operate" Almag following the dissolution. As noted above, the real property where the Site is located was transferred on April 22, 1996 by deed from Martin H. Doran to Almag, four years after the corporation was dissolved by proclamation. The Department contends that Almag is liable as the owner of the Site, and that Mr. Doran is liable as a principal of the corporation due to his activities following Almag's dissolution.

In order to grant a motion for default judgment under Section 622.15 of 6 NYCRR (Default Procedures), the ALJ must find, among other things, that the respondent was properly served with the notice of hearing and complaint. 6 NYCRR Section 622.15(b)(1). Section 622.3(a)(3) of 6 NYCRR provides, in pertinent part, that "[s]ervice of the notice of hearing and complaint must be by personal service consistent with the CPLR [Civil Practice Law and Rules] . . . " Pursuant to Section 311(a)(1) of the CPLR, personal service upon a domestic corporation shall be made by delivery of the papers "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service."

New York courts have held that "when a judgment is sought against a corporation and one of its officers, service of a single summons is sufficient to subject both the corporation and the individual to the jurisdiction of the court." Wellington Assocs. v. Vandee Enter. Corp., 75 Misc.2d 330, 333-34 (N.Y. City Civ. Ct. 1973), citing Port Chester Elec. Co. v. Ronbed Corp., 28 A.D.2d 1008, 1008 (2nd Dept. 1967) (service of a single summons upon officer of corporate defendant who is also an individual defendant is effective service on both). The court held that personal service upon an individual will subject that person to jurisdiction in a representative capacity, as well as an individual one, "if the cause of action be directed against him in the former status." 75 Misc.2d at 334 [citations omitted]. The court reasoned that delivery of process to an individual affords that individual "full notice of the proceeding in both capacities." Id.

As explained above, Almag was dissolved by proclamation on March 25, 1992. Nevertheless, Article 10 of the NYS Business Corporation Law (BCL) provides that a dissolved corporation may continue to function for the purpose of winding up the affairs of the corporation. Furthermore, BCL Article 10, Section 1006(a)(4) states that a dissolved corporation "may sue or be sued in all courts and participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it."

According to Ms. Lapinski's Affirmation, "Mr. Doran did not refuse to accept service of the Notice of Hearing and Complaint when it was served upon him in his capacity as an officer of Almag Construction, Inc." Affirmation at ¶ 5. The Affidavit of Personal Service attached as Exhibit A to Ms. Lapinski's Affirmation indicates that ECO David C. Wayman served a copy of the notice of hearing and complaint upon "Martin H. Doran and/or Almag Corporation" by personally delivering a copy to Mr. Doran.

In his answer to the complaint, however, Mr. Doran stated that "[a]t no time during court action have I been an officer of Almag." Exhibit 24. Similarly, at the hearing, Mr. Doran stated that he was not appearing on Almag's behalf. Tr. at p. 7. No answer to the complaint was interposed, and no appearance at the hearing was made on Almag's behalf.

Notwithstanding Mr. Doran's statements in his answer and at the hearing, Almag's certificate of incorporation bears his signature, as does the certificate of merger of Doran Excavating, Inc. and Almag Construction, Inc., which he signed as president of Almag. Exhibits 15 and 16. Moreover, Mr. Doran signed, as president of Almag, the acknowledgment on the deed conveying the real property on which the Site is located from himself to Almag. Exhibit 4. In light of this documentary evidence, we conclude that service on the corporation by personal delivery of the notice of hearing and complaint to Mr. Doran is sufficient to confer jurisdiction. See, Gerald Syndicate, Inc. v. Negev Home Made Foods, Inc., et al., 198 A.D.2d 92, 93 (1st Dept. 1993) (defendant's assertion at time of service that he was no longer an officer of the corporation was conclusory and insufficient to raise an issue of fact in the face of documentary evidence submitted by plaintiff).

If the ALJ finds that the requirements for a default judgment have been adequately met, the ALJ is to submit a summary report, "which will be limited to the circumstances of the default," to the Commissioner, accompanied by the proposed order. 6 NYCRR Section 622.15(c). The Department's proposed order requests the same relief as that sought against Mr. Doran individually. We conclude that the Department's motion establishes that Almag was properly served, and that Almag did not file an answer or appear in this action. Consistent with the requirements of 6 NYCRR Section 622.15(c), the Department is entitled to a default judgment against the Almag Construction, Inc.

Relief

The Department's complaint asks the Commissioner to assess a civil penalty and to order remediation. An issue related to relief is site ownership. The Department sought to prove that Mr. Doran or Almag owns the Site, which in turn would demonstrate that the Respondents have access to, and control of, the Site. It is important to note that a respondent's ownership of a site on which a solid waste management facility is located is not a prerequisite to operating the facility. As described above, Section 360-1.7(a)(1)(i) prohibits any person from constructing or operating a solid waste management facility without a permit from the Department.

To demonstrate that the Respondents own the Site, the Department proffered Dwight Partridge who is a land surveyor employed by the Department. After researching the ownership of the Site, Mr. Partridge testified that the Site was owned by Martin T. Doran and Alma Doran. After the death of Martin T. Doran, Alma Doran transferred the Site to Martin H. Doran, the Respondent, who in turn transferred it to Almag in April 1996. Based on Mr. Partridge's research, Almag is the current owner of record. Tr. at p. 18; Exhibit 5. Exhibit 4 is a copy of the deed transferring the property. Exhibit 4 shows that Martin H. Doran signed the deed as president of Almag. Tr. at p. 18.

During his cross-examination of Mr. Partridge, Mr. Doran introduced a deed dated August 3, 2001, which was marked as Exhibit 6. Mr. Doran explained that the purpose of Exhibit 6 was to prove that the Respondents have not owned the Site since August 2001. Tr. at pp. 35-39.

Exhibit 6 describes the foreclosure of two parcels of real property located in the Town of Pittstown. The first parcel is located north of NYS Route 67, and the second is located south of NYS Route 67. No one disputes that the first parcel described in Exhibit 6 is irrelevant to this matter.

The second parcel described in Exhibit 6 is about 0.43 acres, and like the Site, is located south of NYS Route 67. Exhibit 3. According to the description in Exhibit 6, however, the second parcel is adjacent to property owned, or formerly owned, by Mr. Doran.

It is significant to note that Mr. Doran is not identified as a Defendant in the foreclosure proceeding. From this, it can be reasonably inferred that Mr. Doran did not own the second parcel described in Exhibit 6. Therefore, we find that the second parcel described in Exhibit 6, which was the subject of the foreclosure, is not the Site.

We find further that Exhibit 6 does not refute Mr. Partridge's testimony or the information presented in Exhibits 3, 4 and 5. Consequently, we reject Mr. Doran's unsupported assertion that he or Almag does not own the Site. Based on the evidence presented by the Department, we find that Almag owns the Site and that Mr. Doran, as the former president of Almag, has had access to, and control of, the Site at all times relevant to this action.

Penalty Calculation

The Department's complaint seeks a civil penalty, but does not specify an exact amount. The complaint provides notice, however, that pursuant to ECL Section 71-2703(1), the maximum civil penalty for violations of any provision of Titles 3 or 7 of ECL Article 27, or the implementing regulations, is $5,000 per violation, and that such civil penalties may be assessed for each day that the alleged violation continues. The complaint notes further that an additional civil penalty of $10,000 per violation may be assessed if it is determined that the solid waste material is construction and demolition debris. See, ECL Section 71-2703(3).

At the hearing, the Department requested a total civil penalty of $88,000. Tr. at pp. 8-9 and Exhibit 18. For comparative purposes, Mr. Forgea explained what the maximum civil penalty would be. With respect to the waste tires, Section 71-2703(1) of the ECL provides for a civil penalty of up to $5,000 for a violation of any provision of the solid waste regulations, and an additional penalty of up to $1,000 per day for each day the violation continues. Mr. Forgea calculated the days of continuing violation from November 1, 1999 to February 1, 2002, for a total of 820 days, with a resulting civil penalty of $820,000 associated with the unauthorized disposal of the tires. Tr. at p. 83.

Mr. Forgea reasonably considered the trailers on the Site to be C&D debris. With respect to the disposal of the C&D debris, ECL Section 71-2703(3) provides for a maximum penalty of $10,000 per incident. As a result, the component of the civil penalty related to 26 trailers would be $260,000. Tr. at p. 83.

With respect to the disposal of the other C&D debris, Mr. Forgea assumed that one incident took place at the Site. Tr. at pp. 82-83. Accordingly, the associated civil penalty would by $10,000. Thus, the total maximum potential civil penalty would be $1,090,000. Tr. at p. 84.

As noted above, the Department is seeking a total civil penalty of $88,000, which is substantially less than the total maximum civil penalty. To substantiate its request, the Department relied on the following factors. First, Mr. Forgea estimated the potential economic benefit associated with operating the facility without a permit, and the avoided cleanup costs. There are at least 110,000 waste tires on the Site, and the projected disposal cost is $2.00 per tire, for a total of $220,000. Tr. at pp. 80-81.

Mr. Forgea observed approximately 26 house trailers at the Site, and estimated the disposal cost to be $750 per trailer, for a total of $19,500. Mr. Forgea estimated the disposal cost of the remaining C&D debris on the Site as follows. According to Mr. Forgea's undisputed testimony, there are about fifty tons of debris on the Site, and the disposal cost is $95 per ton. The total cost is $4,750. Tr. at pp. 79-80. Thus, the estimated total costs for the disposal of all solid waste materials that Mr. Forgea observed on the Site is $244,250. Tr. at p. 81.

In addition, Mr. Forgea explained how he took eight percent of the total estimated economic benefit, and multiplied it by two and a quarter years (from the date of the initial inspection to the commencement of this action, in November of 1999) to account for the time value of money. Tr. at pp. 81-82. The Department took that amount, which is slightly less than $44,000, and doubled it to obtain the requested civil penalty of $88,000. Id. and Exhibit 18.

With respect to additional factors, Mr. Forgea also testified that a fire had occurred at the Site (Exhibit 20), and that the risk of fire continues. Mr. Forgea explained that the potential adverse environmental impacts from a tire fire are two fold. First there is the possibility of petroleum contamination as the tires melt and then mix with the water used to fight the fire. Second, a tire fire may release toxic air contaminants that could adversely effect nearby residents. Tr. at p. 85. Finally, the tires could become a public health risk because they provide a breeding ground for mosquitos that may carry the West Nile virus. Tr. at pp. 8, 84, 85, 132.

Mr. Doran argued that the requested civil penalty was significant, but did not offer any evidence to show that he could not pay the requested civil penalty. Therefore, we consider the Department's estimate for the potential economic benefit realized by the Respondent estimated by the Department to be reasonable. We find that the economic benefit is substantial, and consequently, a significant aggravating factor. The potential adverse environmental and health impacts described by Messrs. Delurey and Forgea are additional, significant, aggravating factors, which demonstrate that the Department's proposed civil penalty is reasonable.

The requested civil penalty is clearly justified, particularly when compared to the potential maximum. We recommend that the total requested civil penalty be apportioned as follows. For disposing 110,000 tires on the site, the Respondent should be assessed a civil penalty of $50,000, which is about 45.5¢ per tire. An additional civil penalty of $2,000 should assessed for the continuous nature of the violation, and should be apportioned equally per tire for each of the 820 days that the violation continued. With respect to waste tires, the total recommended civil penalty is $52,000.

The Respondent should be assessed $1,000 per trailer. Since there are 26 trailers on the Site, the recommended civil penalty associated with this violation is $26,000.

Finally, the Respondent should be assessed $10,000 for the remaining C&D debris, as recommended by the Department. With respect to the disposal of this debris, Mr. Forgea assumed, as we do here, that one incident of disposal took place at the Site. Tr. at pp. 82-83. Therefore, the total civil penalty would be $88,000.

Remediation of the Site

In addition to its request for a civil penalty, the Department seeks an order from the Commissioner directing the Respondents to remove all the solid waste material from the Site to an authorized disposal facility. As another element of the order, the Department also wants the Respondents to develop a Site Investigation Plan (the Plan) that would identify the extent of any environmental contamination, and inventory all the solid waste materials on the Site. After the Department approves the Respondents' Plan, the Department wants the Respondents to submit a Site Remediation Report (SRR), which would outline how the Respondents would remediate the Site.

Although Mr. Doran objected to the potential costs of remediating the Site, he offered nothing to show that he could not pay the associated remediation costs or that remediation was not necessary.

As already explained above, Mr. Forgea testified about a fire that had occurred at the Site, and that the risk of fire continues. Information about the potential adverse environmental impacts associated with tire fires is addressed above. Moreover, the tires could become a public health risk because they provide a breeding ground for mosquitos that may carry the West Nile virus. These circumstances clearly demonstrate the need for remediation.

Conclusions

  • 'Since November 1, 1999, Respondent Martin H. Doran has operated a solid waste management facility without a permit on the Site, in violation of 6 NYCRR Section 360-1.7(a)(1)(i).
  • 'Respondent Martin H. Doran's storage and disposal of solid waste in the form of waste tires at the Site without a permit is a continuing violation of 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-13.1(b). The violation has continued from November 1, 1999 to the present.
  • 'Respondent Martin H. Doran's storage and disposal of solid waste in the form of abandoned house trailers at the Site without a permit is a continuing violation of 6 NYCRR Sections 360-1.7(a)(1)(i). The violation has continued from November 1, 1999 to the present.
  • 'Respondent Martin H. Doran's storage and disposal of solid waste in the form of construction and demolition debris, and other solid waste, at the Site without a permit is a continuing violation of 6 NYCRR Section 360-1.7(a)(1)(i). The violation has continued from November 1, 1999 to the present.
  • 'With respect to the Department's motion for a default motion against Almag Construction, Inc., the record shows that the Department duly served Almag with a copy of the notice of hearing and the complaint in a manner consistent with the requirements outlined in 6 NYCRR Section 622.3(a)(3)
  • 'Because Almag did not answer the complaint, did not appear at the December 5, 2000 pre-hearing conference, and did not appear at the hearing held on February 26, which continued on March 5, 2002, Respondent Almag has defaulted. The requirements for a default judgment have been met adequately as prescribed by 6 NYCRR Section 622.15(b).
  • 'Accordingly, since November 1, 1999, Respondent Almag has operated a solid waste management facility without a permit on the Site, in violation of 6 NYCRR Section 360-1.7(a)(1)(i).
  • 'Respondent Almag's storage and disposal of solid waste in the form of waste tires at the Site without a permit is a continuing violation of 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-13.1(b). The violation has continued from November 1, 1999 to the present.
  • 'Respondent Almag's storage and disposal of solid waste in the form of abandoned house trailers at the Site without a permit is a continuing violation of 6 NYCRR Sections 360-1.7(a)(1)(i). The violation has continued from November 1, 1999 to the present.
  • 'Respondent Almag's storage and disposal of solid waste in the form of construction and demolition debris, and other solid waste, at the Site without a permit is a continuing violation of 6 NYCRR Section 360-1.7(a)(1)(i). The violation has continued from November 1, 1999 to the present.

Recommendations

  • The Commissioner should conclude that Martin H. Doran violated Article 27 and Part 360 as outlined in the notice of hearing and the complaint dated November 7, 2000.
  • The Commissioner should grant the motion for a default judgment against Almag Construction, Inc., and conclude that Almag violated Article 27 and Part 360 as outlined in the notice of hearing and the complaint dated November 7, 2000.
  • A civil penalty of $88,000 should be assessed jointly and severally against the Respondents, Martin H. Doran and Almag Construction, Inc.
  • The Respondents should be ordered not to accept any waste materials at the Site, including, but not limited to, tires, house trailers, construction and demolition debris, and any other solid waste as that term is defined in 6 NYCRR Part 360.
  • The Respondents should be required to submit to the Department a Site Investigation Plan (the Plan), which should set forth the extent of the environmental contamination at the Site, as well as an inventory of all solid waste present at the Site, including buried and surface waste. The Plan should be prepared and submitted under seal of a licensed professional engineer in the State of New York.
  • Following the Department's approval of the Plan, the Respondents should be required to submit a Site Remediation Report (SRR), that will set out the necessary remedial actions and a schedule to implement those actions. The SRR should be prepared and submitted under seal of a licensed professional engineer in the State of New York. Following approval of the SRR, the Respondents should be required to implement the remedial activities set forth in the SRR.
  • The Respondents should be ordered to submit to the Department a plan detailing measures to provide security at the Site and to discourage vandalism or arson. The plan may include, but should not be limited to, the erection of a fence, berming, or any other measures to provide security and protect the environment and natural resources adjacent to the Site, in the event of a tire fire, arson, or vandalism.
  • After the Department has reviewed and approved the SRR, the Commissioner should order the Respondents to remove all waste tires from the Site and dispose of those tires at an authorized facility. A minimum of 2,000 tires, or two tractor trailer loads of tires, should be removed each week. The Respondents should be required to provide receipts to the Department on the first day of each month documenting the disposal of the tires.

1 Though offered the opportunity, Mr. Doran did not testify at the hearing. Tr. at pp. 235, 245. Since Mr. Doran was not sworn in as a witness, his statements are considered arguments (Tr. at p.119), and do not serve as the basis for any Findings of Fact.

_____________/s/_____________

Dated:

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