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Eagle, Gerald - Order, March 11, 2003

Order, March 11, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

alleged Violations of Article 27 of the Environmental Conservation Law (ECL)

- by -

Gerald Eagle

RESPONDENT

Order

DEC File No.: R4-2000-1115-161

WHEREAS:

  1. Pursuant to a notice of motion dated October 2, 2001, Staff for the New York State Department of Environmental Conservation ("DEC" or "Department") moved for an order without hearing, naming Respondent, Gerald Eagle ("Respondent").
  2. By ruling dated January 9, 2002, the motion was denied. On March 12, 2002, a hearing was held pursuant to 6 NYCRR Part 622 before Administrative Law Judge Maria E. Villa at the Department's Region 4 Offices in Schenectady, New York. The Department of Environmental Conservation was represented by Ann Lapinski, Esq., Assistant Regional Attorney. At the hearing, Respondent Gerald Eagle appeared pro se.
  3. 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.
  4. Based on the record before me, I conclude that since 1993, the Respondent has owned property in the Town of Schagticoke, Rensselaer County (the "Site"), where between 50,000 and 100,000 waste tires are present. The Site constitutes a solid waste management facility, and the Respondent has not obtained a permit from the Department for such facility, 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 May 31, 2000 to the present.

NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. The Respondent, Gerald Eagle, is assessed a total civil penalty in the amount of $5,500 (five thousand, five hundred dollars), based upon the rationale articulated in the hearing report. The penalty shall be payable within 30 days after service of a conformed copy of this order upon the Respondent.
  2. Within 180 days after service of a conformed copy of this Order, Respondent shall remove all solid waste from the Site and properly dispose of the solid waste at a permitted facility.
  3. Within thirty days of proper disposal, the Respondent shall provide documentation to the Department of disposal at a permitted facility.
  4. All communications between Respondent Gerald Eagle 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.
  5. The provisions, terms and conditions of this Order shall bind the Respondent, his officers, directors, agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the State of New York Department of Environmental Conservation
___________/s/____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
March 11, 2003

To: Gerald Eagle
14 Victoria Avenue
Troy, New York 12180-7427

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 alleged violations of Article 27 of the Environmental Conservation Law

-by-

GERALD EAGLE

Case No. R4- 2000-1115-161

HEARING REPORT
-by-

____________/s/_____________
Maria E. Villa
Administrative Law Judge

Proceedings

The New York State Department of Environmental Conservation (the Department) commenced this administrative enforcement matter on October 23, 2001 by filing, pursuant to Section 622.12 of Title 6 of the Official Compilation of Codes, Rules and Regulations of New York ("6 NYCRR"), a motion for order without hearing naming Respondent, Gerald Eagle. The motion alleged that the Respondent violated Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste) of the New York State Environmental Conservation Law ("ECL"), and Section 360-13.1(b) of 6 NYCRR. Department Staff alleged that the Respondent owns property on Neeson Lane, also known as Sliter Road, in the Town of Schagticoke, Rensselaer County (the "Site"), where approximately 50,000 to 100,000 waste tires have been stored.

In support of the motion, Department Staff submitted the Affidavit of Richard Forgea, Region 4's Regional Solid Waste Engineer, sworn to October 2, 2001 (the "Forgea Affidavit"). Respondent, who at that time was represented by counsel, sought and obtained an extension of time to serve a response until November 24, 2001. On November 26, 2001, the Office of Hearings and Mediation Services ("OHMS") received an undated, handwritten letter from Respondent, including a copy of a letter to Respondent from Respondent's counsel, John Hicks, indicating that Mr. Hicks would not be able to provide representation in this matter. With leave from the Administrative Law Judge, Department Staff filed a reply to that submission on December 6, 2001. On December 11, 2001, OHMS received a handwritten letter dated December 10, 2001 from Respondent, which included a copy of a printout, dated December 10, 2001, from the Social Security Administration in connection with Respondent's Supplemental Security Income payments. That printout indicated that the Respondent would be receiving $632 per month in Supplemental Security Income, beginning in January of 2002. Exh. 4.

Department Staff's motion alleges that Respondent owns a waste tire storage facility located in the Town of Schagticoke, Rensselaer County. According to Department Staff, the Respondent has owned the Site since 1993. The Forgea Affidavit states that during inspections of the Site by the Department in May of 2000, and in February and October of 2001, a large number (approximately 50,000 to 100,000) of waste tires were observed on the Site. The Forgea Affidavit states further that the Department's files contain no record of any permit being issued to Gerald Eagle to operate a waste tire storage facility. With respect to the environmental harm that can be anticipated from the presence of the tires, the Forgea Affidavit notes that the tires at this unsecured Site pose a fire hazard, and also provide an optimal breeding ground for mosquitos that may carry the West Nile virus.

The Respondent's November 26, 2001 submission states that Respondent purchased the Site "sight unseen" at a Rensselaer County back tax land auction. The Respondent indicates that he was hoping to find a lot where he could cut firewood, and that, when he hired a land surveyor to locate the parcel, the surveyor visited the Site and advised Respondent of the presence of the tires. According to Respondent, on the advice of his attorney, he had not paid taxes on the property in six years, and "Renss. Co. now has it back." Finally, Respondent states that he is sixty-one years old and on disability, that he has no material possessions or real estate, and that he has a fixed income of five hundred dollars per month. Consequently, Respondent maintains that he lacks the financial resources to properly dispose of the tires or to pay any penalty.

In reply, Department Staff submitted the Affidavit of James Haley, sworn to December 6, 2001 (the "Haley Affidavit"). The Haley Affidavit states that Mr. Haley, who is an Assistant Land Surveyor for the Bureau of Real Property in Region 4's Division of Lands and Forests, reviewed the Rensselaer County records and contacted the County to confirm that Gerald Eagle is still the owner of record of the Site. As noted above, Respondent provided a second, handwritten letter on December 11, enclosing information concerning his Supplemental Security income, and indicating that he had been advised that the property was in foreclosure and "it is just waiting to be addressed by Renss. County Attorneys." The Respondent's letter stated that he had called the County on December 10, 2001, and had been told that the County would take possession of the property within sixty days.

The motion was denied in a ruling dated January 9, 2002, because of the factual dispute concerning the ownership of the property. Pursuant to Section 622.12(e), the ruling found that the following uncontroverted facts were established for all purposes in the action:

  1. Gerald Eagle, the Respondent, purchased the Site in 1993.
  2. During inspections on May 31, 2000, and in February and October of 2001, a representative of the Department observed approximately 50,000 to 100,000 waste tires on the Site.
  3. The Department has no record of a permit being issued to the Respondent to operate a waste tire storage facility.

The hearing commenced on March 12, 2002 at the Department's Region 4 Offices before Administrative Law Judge ("ALJ") Maria E. Villa. Pursuant to 6 NYCRR Section 622.14(e), the moving and responsive papers are deemed to be the complaint and the answer, respectively.

The Department appeared by Ann Lapinsiki, Esq., Assistant Regional Attorney. Mr. Eagle appeared on his own behalf, and was accompanied by his nephew, Mr. Henry. Department Staff called Richard Forgea and James Haley as witnesses, the same individuals who provided affidavits in support of Department Staff's motion for order without hearing. Mr. Eagle did not call any witnesses. The Respondent was advised of his right to be represented by counsel, to present and cross-examine witnesses, and to request that subpoenas be prepared to compel the attendance of witnesses. Transcript (hereinafter "Tr. at p. ") at pp. 6-7 and 21.

At the conclusion of the hearing, the ALJ provided Mr. Eagle with a copy of the Department's civil penalty policy, and advised him of his right to make a post-hearing submission concerning the matters addressed at the hearing, and the penalty sought. Tr. at pp. 23-24. Staff provided a closing statement, and Mr. Eagle was advised that he would have until April 12, 2002 to make any further submissions. Tr. at pp. 25-26.

By letter dated April 10, 2002, Mr. Eagle requested an extension of time, for ninety days, to submit a post-hearing filing. In that letter, Mr. Eagle indicated that he had obtained an attorney, and believed that a settlement with Rensselaer County was possible. In response, Department Staff proposed a thirty day extension. By letter dated April 22, 2002, the ALJ granted the Respondent a forty-five day extension, running from the date of receipt of the transcript which arrived on April 29, 2002. The ALJ also requested that the Respondent advise counsel for Department Staff, and the ALJ, of the name of his attorney. Mr. Eagle did not reply, nor did he submit anything further. The record of the proceeding closed on June 17, 2002.

Findings of Fact

  1. The Site is located on a parcel of real property on Route 67 in the Town of Schagticoke, Rensselaer County, New York. Gerald Eagle purchased the Site in 1993. Rensselaer County has not seized the property for non-payment of taxes, and Gerald Eagle is the current owner of record.
  2. Richard Forgea, P.E., Regional Solid Waste Engineer for DEC Region 4, inspected the Site on May 31, 2000, and in February and October of 2001. On each occasion, the amount and character of the material on the Site was essentially the same. Mr. Forgea observed approximately 50,000 to 100,000 waste tires at the Site (due to the amount of vegetative growth on the property, a more accurate estimate could not be made).
  3. The Department has not issued a permit, pursuant to 6 NYCRR Part 360, to Respondent Gerald Eagle to operate a solid waste management facility at the Site.
  4. There is a risk of fire at the Site. 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 mosquitoes that may carry the West Nile virus.

Discussion

Department Staff's motion for order without hearing asserted that Respondent violated 6 NYCRR Sections 360-1.7(a)(1)(i) and 360-13.1(b) because the Respondent stored 50,000 to 100,000 tires on the Site without a permit from the Department. According to Department Staff, those violations have continued from May 31, 2000, to the present.

A "solid waste management facility" is defined, in pertinent part, at 6 NYCRR 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: . . . . . waste tire storage facilities . . ..

Section 360-1.2(b)(114) defines an "owner" as "a person who owns a solid waste management facility or part of one." 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."

Section 360-13.1(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."

At the hearing, the Department presented its direct case, beginning with a brief opening statement. Tr. at pp. 8-9. The Department offered Richard Forgea, P.E., who is Regional Solid Waste Engineer for DEC Region 4. Mr. Forgea's affidavit, which he verified at the hearing, stated that he inspected the Site on May 31, 2000, and again in February and October of 2001. Tr. at pp. 9-10. Forgea Aff. at ¶ 4. During those inspections, he observed approximately 50,000 to 100,000 tires. Id. The affidavit stated further that an inspection of the Department's files did not reveal any records of a permit being issued to the Respondent. Forgea Aff. at ¶6. Mr. Forgea's affidavit concludes that the Respondent is in violation of Section 360-13.1(b). Department Staff had no further questions for Mr. Forgea, and Mr. Eagle stated that he had no cross-examination for this witness. Tr. at pp. 11-12.

Mr. Eagle offered nothing to rebut Mr. Forgea's affidavit, and therefore, this evidence is assigned significant weight. Based on the unrefuted testimony of Mr. Forgea, between 50,000 and 100,000 waste tires are present on the Site, without a permit from the Department.

With respect to the issue of ownership, Department Staff called James Haley. Mr. Haley verified his affidavit, and testified further as to steps that a locality would take in order to foreclose on a parcel of real property. Mr. Haley stated that the county levies a tax every year on a parcel of property, and that, as of January 1 of the year that it is levied, the tax becomes an automatic lien pursuant to the provisions of Section 902 of the Real Property Tax Law ("RPTL"). Tr. at pp. 13-14. The witness testified further that the county compiles a list of properties where taxes are delinquent, pursuant to Section 1122 of the RPTL, and next files a request for foreclosure pursuant to RPTL Section 1123. Tr. at pp. 14-15. Subsequent to filing, notice is published, and notification provided to the affected landowner, pursuant to Sections 1124 and 1125 of the RPTL. Tr. at p. 15. According to Mr. Haley, the steps are sequential, and each step in the foreclosure process must be completed before the county may proceed to the next phase. Id.

Department Staff offered Exhibit 6, which is a Notice of Foreclosure, Index Number 202729 (Rensselaer County Court), which included a list of properties with delinquent taxes, listing the tax map identification number, owner name, and amount due. Exh. 6; Tr. at p. 15. Mr. Haley testified that Exhibit 6 was a listing of the most recent listing of delinquent taxes. Tr. at p. 16. Mr. Haley testified further that Mr. Eagle's property was not listed on Exhibit 6, and stated that the absence of a listing for the property indicated that the county had not yet begun to take steps to foreclose on the property. Tr. at p. 16-17.

Mr. Eagle had no objection to the Exhibit being received into evidence, and was offered the opportunity to cross-examine Mr. Haley. Tr. at p. 18-19. On cross, however, Mr. Eagle wished to ask the witness about the photographs on a bulletin board of properties for sale. Tr. at p. 19. The ALJ reminded Mr. Eagle that his cross-examination must be limited to the matters addressed in the direct examination. Tr. at p. 19. Mr. Eagle had no further questions. Tr. at p. 20. Mr. Eagle did not offer anything to refute Mr. Haley's testimony, which indicated that Mr. Eagle is still the owner of record of the Site. Accordingly, Mr. Haley's testimony is also assigned significant weight.

The Department rested, and, as noted above, Mr. Eagle did not call any witnesses, nor did he testify on his own behalf. The ALJ questioned Mr. Eagle as to whether he had any further documentation with respect to his inability to pay the penalty sought by the Department, inasmuch as the ruling on the Department's motion stated that any such documentation should be provided at the hearing. Ruling, at p. 4; Tr. at p. 22. Mr. Eagle stated that he had nothing further that he wished to provide. Tr. at p. 22.

As indicated above, although offered the opportunity to comment upon the penalty imposed and to make a post-hearing filing, the Respondent did not add make any further submissions. Accordingly, the Respondent, Gerald Eagle, is an owner of a solid waste management facility, based on the regulatory definitions identified above. Mr. Eagle is a "person" within the meaning of the regulations. Between 50,000 to 100,000 waste tires, which fall within the definition of solid waste, are present at the Site. It is undisputed that the Department has not issued any permit to the Respondent to operate a solid waste management facility at the Site. Mr. Eagle's unsupported assertions that Rensselaer County has seized the property for back taxes, and that he no longer owns the Site, must be rejected. Based on the evidence presented by the Department Staff, I find that Mr. Eagle owns and has owned the Site at all times relevant to this action. Therefore, the Department has proven the allegations set forth in the motion for order without hearing.

Relief

The Department's complaint asks the Commissioner to assess a civil penalty, to order the Respondent to dispose of the tires at a permitted facility, and to provide documentation of such disposal.

A. Penalty Calculation

The Department's motion for order without hearing sought a civil penalty in the amount of $5,500. Mr. Forgea's affidavit, submitted as part of Department Staff's motion, provides notice to the Respondent that, pursuant to ECL Section 71-2703, 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.

Department Staff contends that the penalty requested is appropriate, for several reasons. First, the maximum penalty that could be imposed is $485,000. Forgea Aff. at ¶9(a). Second, Mr. Forgea estimated the economic benefit the Respondent derived, as a result of Respondent's non-compliance. According to Mr. Forgea, that benefit include the avoided cost of disposing of the tires, which would be at least $50,000, using the smallest number of tires at the Site as the basis for the estimate. Forgea Aff. at ¶9(b)(i). Mr. Forgea then calculated the interest rate from May 31, 2000, a period of one year and four months, to determine that Respondent had avoided costs of $5,333. The total civil penalty of $5,500 is, therefore, substantially less than the total maximum civil penalty.

Mr. Forgea explained that the potential adverse environmental impacts from a tire fire at this unsecured site are two fold. First, there is the environmental harm from the release of toxic contaminants to the air, with a potential threat to nearby residents from such emissions. Forgea Aff. at ¶9(c). Second, a significant amount of petroleum is released from the tires as they are heated, inasmuch as each tire contains approximately two gallons of petroleum. Id. In addition, the tires could become a public health risk because they provide a breeding ground for mosquitos that may carry the West Nile virus. Id.

In his letter dated December 10, 2001, Mr. Eagle stated that he lacked the financial resources to pay the requested civil penalty, and that he would "be forced to declare bankruptcy if rendered against." Nevertheless, with the exception of the SSI statement, Mr. Eagle did not offer any evidence, such as income tax returns, to further support his claim that he is unable to pay the requested civil penalty. Therefore, the Department's estimate of the potential economic benefit realized by the Respondent is found to be reasonable. In addition, the economic benefit is substantial, and consequently, a significant aggravating factor. The potential adverse environmental and health impacts described by Mr. Forgea are additional, significant, aggravating factors, which demonstrate that the Department's proposed civil penalty is appropriate, and justified, particularly when compared to the potential maximum of $485,000.

Accordingly, the penalty in this case is calculated as follows: the tire pile is considered to be a single violation, for which the maximum civil penalty of $5,000 is assessed. The imposition of the maximum penalty is warranted, given the significant aggravating factors (economic benefit, and the environmental harm and danger to public health to be anticipated from the presence of the tires). The additional $500 represents the penalty imposed as a result of the continuous nature of the violation, based upon the avoided costs of cleaning up the Site.

B. Remediation of the Site

In addition to its request for a civil penalty, the Department seeks an order from the Commissioner directing the Respondent to remove all of the tires from the Site to a permitted disposal facility, and to document that disposal. As noted above, Mr. Forgea testified that there is a risk of fire at the Site. 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 mosquitoes that may carry the West Nile virus. These circumstances clearly demonstrate the need for remediation. The Respondent has not disputed the need for remediation.

Conclusions

Respondent Gerald Eagle is the owner of the Site, which is a solid waste management facility within the meaning of 6 NYCRR Section 360-1.2(b)(158).

Respondent Gerald Eagle's storage 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 May 31, 2000, to the present.

Recommendations

  1. The Commissioner should conclude that Gerald Eagle violated Article 27 as outlined in the Department's motion for order without hearing dated October 2, 2001.
  2. A civil penalty of $5,500 (five thousand, five hundred dollars) should be assessed against the Respondent, Gerald Eagle.
  3. The Respondent should be ordered to remove all solid waste from the Site and properly dispose of the solid waste at a permitted facility, within 180 days of the effective date of the Commissioner's Order.
  4. The Respondent should be required to submit to the Department, within thirty days of proper disposal, documentation of proper disposal at a permitted facility.
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