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Izzo, Pasquale, Michael Izzo, Ernest Force - Ruling on Motion, February 26, 2001

Ruling on Motion, February 26, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Violations of Articles 27 and 71 of the New York State 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 -

PASQUALE IZZO, MICHAEL IZZO, ERNEST FORCE, individually
and a Vice President of WINDSOR ASSOCIATES doing business as NEW YORK TIRE RECYCLING
and as an officer of NEW YORK TIRE RECYCLING, INC. also known as NEW YORK TIRE CORP.
and as Vice President of STEPHANIE FORCE WASTE TIRE MANAGEMENT CORP. also known as
and doing business as WASTE TIRE MANAGEMENT CORP. and STEPHANIE FORCE individually
and as President of STEPHANIE FORCE WASTE TIRE MANAGEMENT CORP.
also known as and doing business as WASTE TIRE MANAGEMENT CORP.

Respondents

DEC # 1-1999-11-05-89

RULING ON MOTION

February 26, 2001

Summary

This Ruling denies all three requests contained within a Motion brought by counsel for the Respondents Ernest Force and Stephanie Force (the "Forces"). The remaining unresolved issues are now scheduled for adjudication at a hearing that will convene on March 7, 2001, at 9:30 a.m. at DEC's Region 1 Office on Long Island.

Proceedings

This action was commenced by the staff of the New York State Department of Environmental Conservation ("DEC Staff") against Pasquale Izzo and Michael Izzo (the "Izzos") by Notice of Hearing, Prehearing Conference, (Calendar Call) and Complaint dated January 5, 2000. At the February 16, 2000 calendar call, the matter was adjourned at the request of the parties to allow settlement discussions to proceed. On May 24, 2000, DEC Staff moved to amend the Complaint to include Ernest Force and Stephanie Force in their various capacities set forth in the caption above. This Motion was not opposed and on May 30, 2000 ALJ DuBois granted the motion.

DEC Staff then served on both the Forces and the Izzos a Notice of Hearing, Pre-Hearing Conference (Calendar Call) and Amended Complaint, dated June 1, 2000. Respondents filed timely Answers and the matter was heard at the June 27, 2000 calendar call and again adjourned at the request of the parties for additional settlement discussions to occur. A Statement of Readiness was then filed by DEC Staff on August 7, 2000. The matter was again heard at the November 15, 2000 calendar call at which time the parties announced a partial agreement. A Stipulation was executed the same day memorializing the partial agreement. Resolution of the remaining issues was to be sought through adjudication.

On January 30, 2001, Respondents filed a Notice of Motion seeking the following: that the Stipulation dated November 15, 2000 be "so ordered"; that an Order be granted allowing for the shredded tire chips to remain buried at the site; and, that the allegations against Stephanie Force be struck. DEC Staff opposed this Motion by Affirmation in Opposition dated February 7, 2001.

Background

The Izzos are the owners of real property located at Old Northport Road, Kings Park, in the Town of Smithtown, Suffolk County, New York. This property was leased by the Izzos to New York Tire Recycling Corp. Between December, 1987 and February, 1990 approximately 3 million used tires were brought to the site. Agreement has been reached between DEC Staff and the Respondents regarding the disposal of the remaining 50,000 - 70,000 unshredded tires on the property. The remaining dispute involves the estimated 1.5 million tires that have been shredded and now lie buried below grade.

Respondents Motion

The Izzos and the Forces are represented by separate counsel in this action and it is counsel for the Forces that have made the instant Motion. First, the Forces have moved that the Stipulation executed on November 15, 2000 be so ordered. Second, that an order be granted allowing the shredded tires on the property to remain buried since the tires pose no environmental safety hazard. Third, that the allegations regarding Stephanie Force be stricken.

To support their motion, the Forces have attached: the affidavit of Ernest Force, the affidavit of Stephanie Force, the affirmation of their attorney, John T. DiPalma, a report regarding the property from Slacke Test Boring, Inc., a laboratory report by Pedneault Associates, Inc., and other published material regarding the applications of tire shreds.

DEC Staff's Response

DEC Staff oppose the Forces' Motion in all respects and have filed an Affirmation in Opposition by Jeanne Compitello, Esq. and the affidavit of Ernest Lampro.

Discussion and Rulings

Part One: Respondent's Request that the Stipulation be "so Ordered"

The Forces have moved that the Stipulation executed between the Respondents and DEC Staff on November 15, 2000 be so ordered. DEC Staff responds that it does not object to the Commissioner signing the Stipulation or converting the Stipulation into an Order on Consent, the usual document used by DEC Staff when resolving pending enforcement actions through settlement.

Neither party cites any authority for an ALJ to "so order" a stipulation in an enforcement or any other context. An ALJ is the representative of the Commissioner who has been delegated certain powers. These powers as identified in the Department's enforcement hearing procedures do not include the authority to make final decisions in enforcement matters, which is sought here (6 NYCRR 622.18(b)). There is no separate delegation of additional authority that applies in this case. An ALJ may prepare a hearing report recommending the Commissioner issue an Order, but this is unnecessary in this case.

The Commissioner has delegated to DEC Staff the power to agree to final decisions on civil settlements in pending enforcement actions (6 NYCRR 622.18(c); Organization and Delegation Memorandum 94-13). Presumably, Ms. Compitello had been delegated such power when she signed the stipulation. Therefore, the Commissioner is bound by the Stipulation and no further action is necessary.

RULING 1: The Respondents Motion that the Stipulation be so ordered is denied.

Part Two: Respondents' Request for an Order allowing the Buried tires to remain at the Site.

The Forces have also moved for an Order allowing the shredded tire chips to remain buried at the property because they pose no environmental safety hazard. This Motion is essentially a Motion for Summary Judgment because it seeks a disposition of this matter in favor of the Respondents' before a hearing is held. Consequently, this Motion should be addressed consistent with the Civil Practice Law and Rules ("CPLR") section 3212. This section of the CPLR only allows the granting of the Motion if there is no substantial fact issue in the case and therefore no necessity for a trial. It is a drastic remedy and should only be granted where there is no doubt that no triable issues exist.

In this case, the Respondents are seeking the permission of the Commissioner to leave 1.5 million shredded tires buried on the Izzos property because they pose no environmental or safety threat. To support their position, Respondents have produced the results of three test borings done on the property and the results from laboratory tests along with five published articles.

In opposition, DEC Staff points to the paucity of information provided by the Respondents and the resulting slim record. DEC Staff contends that much more data regarding the site needs to be produced and examined before the Commissioner should issue the requested Order. DEC Staff asserts that there are substantial fact issues including: whether the borings that were done were adequate; what is the soil chemistry at the site; and, what is the extent and depth of the shredded tires at the site.

With substantial fact issues outstanding the Respondents Motion must be denied. At hearing the Respondent must be prepared to build a record sufficient for the Commissioner to issue the Order they seek.

RULING 2: The Respondents' Motion that an Order be granted prior to a hearing allowing the 1.5 million buried, shredded tires on the property be allowed to remain is denied.

Part Three: The Request that the Allegations Against Stephanie Force be Struck.

The Forces move that the allegations contained within the complaint regarding Stephanie Force, individually, and in her capacity of as President of Stephanie Force Waste Tire Management Corp., be stricken. To support this motion, Respondents have provided affidavits from both Ernest Force and his wife Stephanie Force. Mr. Force swears that his wife did not participate in any activities of "Windsor Associates, and or New York Tire", which were his businesses (affidavit of E. Force, paragraph 6). Mrs. Force similarly swears that she never had an active role in New York Tire Recycling (affidavit of S. Force, paragraph 3).

DEC Staff oppose this Motion and state that the allegations against Mrs. Force should only be dropped if a resolution of all outstanding issues is achieved. In its Amended Complaint, DEC Staff alleges a complicated interconnection of businesses under the control of the Forces.

Ernest Force, the primary operator and a principal of New York Tire Recycling Company, Inc. also known as New York Tire Corp. and Windsor Associates d/b/a New York Tire Recycling (hereinafter collectively referred to as "New York Tire"), is in business and operating under the name of Stephanie Force Waste Tire Management Corp. which is also known as and doing business as Waste Tire Management Corp. (Amended Complaint, Paragraph 21).

In the November 15, 2000 Stipulation, all the parties agreed that this exact language was in fact true (Stipulation, Paragraph 12). Since DEC Staff alleges that Mrs. Force is the President of Stephanie Force Waste Tire Management Corporation and this corporation may have been involved in depositing tires on the property, it is appropriate that this motion be denied. The involvement and culpability of Mrs. Force is disputed and appropriate for adjudication at the forthcoming hearing.

RULING 3: The Respondents' Motion to strike the allegations against Stephanie Force is denied.

Conclusion

The Respondents Motion is denied in all respects. The remaining unresolved issues will be adjudicated at a hearing scheduled to convene on March 7, 2001, at 9:30 a.m. at DEC's Region 1 Office on Long Island. The hearing will continue at the same location on March 8 and 9, if necessary. DEC Staff is directed to make arrangements for a hearing room and stenographic services.

_____________/s/_____________
Susan J. Dubois
Administrative Law Judge

_____________/s/_____________
P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
February 26, 2001

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