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Izzo, Pasquale, Michael Izzo, Ernest Force - Ruling 2, October 1, 2001

Ruling 2, October 1, 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 as 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

October 1, 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"). An adjudicatory hearing will be necessary to resolve these issues.

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 as set forth in the caption above. This Motion was not opposed, and on May 30, 2000 ALJ Susan J. 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 dealt with through adjudication.

On January 30, 2001, Respondents filed a Notice of Motion seeking the following: 1) that the Stipulation dated November 15, 2000 be "so ordered"; 2) that an Order be granted allowing for the shredded tire chips to remain buried at the site; and, 3) that the allegations against Stephanie Force be stricken. DEC Staff opposed this Motion by Affirmation in Opposition dated February 7, 2001. This motion was denied by a Ruling on Motion, dated February 26, 2001.

On August 13, 2001, Respondents renewed their motion based upon an "Investigation Report: Limited Subsurface Investigation" prepared by Impact Environmental Consulting, Inc., dated August 8, 2001 ("Impact Environmental Report"). According to the Respondent, this report demonstrates that leaving the shredded tires buried on site would not cause an adverse environmental condition. DEC Staff opposes this motion and asserts that there is insufficient information to support the Respondents' conclusion.

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.

Respondent's Notion

The Izzos and the Forces are represented by separate counsel in this action and it is counsel for the Forces that has made the instant Motion. First, the Forces have moved that the Stipulation executed on November 15, 2000 be "so ordered". Second, The Forces have moved that an order be granted allowing the shredded tires on the property to remain buried since the tires pose no environmental safety hazard. Third, the Forces move that the allegations against Stephanie Force be stricken. As stated above, the instant motion renews Respondents' motion made on January 30, 2001 and denied on February 26, 2001.

To support their original motion, the Respondents 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. To supplement the renewed motion, the Respondents have included the Impact Environmental Report; a filing receipt from the New York State Department of State for the certificate of incorporation for Waste Tire Management Corp.; and a stock certificate.

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, a DEC Staff Environmental Engineer, both dated August 22, 2001.

Discussion and Rulings

Part one: Respondents' Request that the Stipulation be "so Ordered"

The Forces have again 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. I see no reason to adjust the previous ruling in this matter and repeat it below.

Neither party cites any authority for an ALJ to "so order" a stipulation in an enforcement action or in any other context. An ALJ, as the representative of the Commissioner, 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, such as the determination Respondents seek here(6 NYCRR 622.18(b)). There is no separate delegation of additional authority that applies in this instance. An ALJ may prepare a hearing report recommending that 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 again moved for an Order allowing the shredded tire chips to remain buried at the property because Respondents contend that the tires pose no environmental 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.

To support their position, Respondents have supplemented their original submissions with the Impact Environmental Report. This report, produced at the reported cost of $16,000, recounts the findings of a limited subsurface investigation. Ground penetrating radar was used to confirm the extent of the buried tires. Five soil borings were taken to determine the water quality beneath the tires. Samples were analyzed, and that analysis showed low levels of contamination at the site.

In opposition, DEC Staff asserts that in order for it not to oppose the Respondents' motion, overwhelming technical evidence in support of Respondents' position would be required. However, DEC Staff remains amenable to allowing additional time for additional investigation.

According to DEC Staff Engineer Lampro, after receipt and review of the Impact Environmental Report, more information is still needed. Specifically, groundwater sampling must take place and temperature probes must be installed before a determination regarding the final disposition of the buried tires can be made.

With substantial fact issues regarding the temperature of the tire pile and possible discharges to groundwater outstanding, the Respondents' Motion must be denied. At hearing the Respondents 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 Stricken.

The Forces have again moved 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 all outstanding issues are resolved. 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, accurate (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, for the second time. The involvement and culpability of Mrs. Force is disputed, and is appropriate for adjudication at the forthcoming hearing.

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

Conclusion

The Respondents' renewed Motion is denied in all respects. The remaining unresolved issues will be adjudicated at a hearing to be scheduled. In the alternative, the parties may confer and agree upon a schedule for additional testing.

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

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

Dated: Albany, New York
October 1, 2001

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