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Eagle, Gerald - Ruling, January 9, 2002

Ruling, January 9, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of

the Alleged Violations of Article 27 of the Environmental Conservation Law
of the State of New York and Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

GERALD EAGLE,

Respondent.

RULING OF THE ADMINISTRATIVE LAW JUDGE
ON THE DEPARTMENT'S MOTION FOR ORDER WITHOUT HEARING

Case No. R4-2000-1115-161

Summary

Staff of the Department of Environmental Conservation (the "Department Staff") moved for an Order Without Hearing against Respondent, Gerald Eagle ("Respondent") for a violation of 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 Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Department Staff alleged that the Respondent owns property in the Town of Schagticoke, Rensselaer County (the "Site"), and that Respondent was storing approximately 50,000 to 100,000 waste tires at the Site.

For the reasons set forth below, the motion is denied. A hearing will be scheduled to consider the allegations and the relief requested in Department Staff's motion.

Procedural History

On October 23, 2001, Department Staff moved for an Order Without Hearing pursuant to 6 NYCRR Section 622.12. 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 from the Social Security Administration in connection with Respondent's Supplemental Security Income payments.

Positions of the Parties

In its motion, Department Staff alleges that Respondent owns a waste tire storage facility located on Neeson Lane, also known as Sliter Road, 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) 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 states 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 stated 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 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 stated 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. 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.

Discussion of Ruling

Section 622.12(d) of 6 NYCRR provides that "[a] contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR [Civil Practice Law and Rules] in favor of any party." Section 622.12(e) provides that "the motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing." The first step in reviewing the motion for Order Without Hearing is to determine whether there are any factual disputes as to the Respondent's liability and the relief requested by Department Staff.

Waste tires are included in the definition of "regulated waste" pursuant to Article 27, Title 3 of the ECL, Section 27-0303(4). 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." There is no dispute as to the presence or amount of the waste tires at the Site. Moreover, the parties do not dispute that Respondent has no permit to operate a waste tire storage facility.

Nevertheless, there are factual disputes that preclude granting Department Staff's motion. First, as of the date of this ruling, there is uncertainty as to whether this Respondent is the current owner of record. Department Staff has submitted an affidavit indicating that, as of November 29, 2001, Respondent still owned the Site. Respondent's December 11, 2001 submission claims that the property is in foreclosure and that he was advised on December 10, 2001 that the County will take possession of the property within sixty days. Accordingly, a hearing should be held to clarify the status of the property.

Second, Respondent has raised an inability to pay argument, asserting that he has no money for the removal of the tires at the Site. Respondent has indicated that he has a fixed income of $632 per month, that he owns no real estate, and will have to file for bankruptcy if judgment is rendered against him. Moreover, Respondent states that he cannot afford an attorney. Department Staff points out that Respondent's assertions are unsworn, and that Respondent did not provide sufficient documentation to support his claims that he cannot finance a cleanup of the Site, or pay the $5,500 penalty.

Under the circumstances, facts are in dispute that would be relevant to the appropriate penalty to be imposed if Respondent is found to be in violation. Since the Department Staff considered the economic benefit derived by Respondent as a result of Respondent's non-compliance in its civil penalty calculation, a hearing will be held to develop a record on this issue to determine the proper civil penalty. At the hearing, Respondent should be prepared to present documentation, such as income tax returns for the past five years, to support his inability to pay argument.

Ruling

The Motion for Order Without Hearing is denied and a hearing will be scheduled. As provided in 6 NYCRR Section 622.12(e), the moving and responsive papers will be deemed to be the complaint and answer, respectively.

Order Establishing Uncontroverted Facts

The following facts are uncontroverted. Pursuant to 6 NYCRR Section 622.12(e), I deem and order the following facts established for all purposes in this 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.

Order Scheduling Hearing

Within fifteen days of receipt of this ruling, counsel for Department Staff shall identify for me in writing the dates on which Respondent and the Department are available for the hearing. One day should be sufficient to adjudicate this issue. I will confirm the hearing date in writing. The hearing will commence at 10:00 A.M. at the Region 4 Offices of the Department.

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

Dated: Dated: Albany, New York
January 9, 2002

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

Ann Lapinski, Esq.
New York State Department of
Environmental Conservation
Division of Legal Affairs, Region 4
1150 North Westcott Road
Schenectady, New York 12306-2014

John P. Hicks, Esq.
Hicks & Bailly
744 Broadway
Albany, New York 12207

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