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Jamaica Recycling, Inc. - Ruling, October 9, 2003

Ruling, October 9, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of

Environmental Conservation Law Article 27

and Part 360 of Title 6 of the Official

Compilation of Codes, Rules and Regulations

of the State of New York by

JAMAICA RECYCLING, INC.,
MICHAEL BELLINO, and
R2-1999-1105-162 and
STEPHEN BELLINO, R2-20030709-171

RULING
DEC File Nos.
R2-0136-97-08
R2-0204-97-10
R2-0287-97-12

individually and as officers of
Jamaica Recycling, Inc.,

Respondents
October 9, 2003

On September 24, 2003, James P. Rigano, Esq., moved on behalf of Respondents that an Administrative Law Judge ("ALJ ") be assigned to the above pending enforcement actions and that a hearing be scheduled in the matter.

The motion was made by a letter to James T. McClymonds, Chief ALJ of the Department of Environmental Conservation's ("DEC's ") Office of Hearings and Mediation Services.(1) Attached to the motion were copies of the May, 2001 notice of hearing and complaint regarding the first four file numbers listed above and the July 15, 2003 notice of hearing and complaint regarding the fifth file number listed above. Also attached was a letter of July 17, 2003 from John F. Cryan, Regional Permit Administrator, DEC Region 2 to Respondents stating that the DEC was suspending the processing and review of the permit renewal application for Jamaica Recycling's facility at 94-29 165th Street, Jamaica, New York. The complaints allege violations of Jamaica Recycling's DEC permit to operate a solid waste facility and of 6 NYCRR part 360 (Solid Waste Management Facilities).

On September 30, 2003, John Nehila, Esq., replied to the motion on behalf of the DEC Staff, asking that the motion be denied. On October 2, 2003, Respondents submitted a letter stating that a decision that had been pending from the Appellate Division, discussed in the motion and response, had been issued by the court and was received by Mr. Rigano on October 1, 2003.

I spoke with Mr. Rigano and Mr. Nehila in a conference phone call on October 3, 2003, to request copies of the court decisions regarding Jamaica Recycling's permit, and to inquire whether the present motion was moot in view of the Appellate Division decision and the recent receipt by DEC Staff of some documents from Respondents. Mr. Nehila stated that he would send me copies of the Supreme Court and Appellate Division decisions, which I received on October 6, 2003. A ruling on the motion remains necessary because the recent events have not led to an agreement between the parties concerning the schedule.

POSITIONS OF THE PARTIES

Respondents

Respondents requested that an ALJ be assigned to the pending enforcement actions and that a hearing be scheduled. Respondents stated that the DEC Staff had suspended processing of Jamaica Recycling's application for renewal of its permit due to the enforcement matters, and that this suspension is extremely prejudicial to Respondents. Respondents stated that the facility has a permit by operation of law based on a decision of the New York Supreme Court, but that DEC has appealed this decision and, if the Appellate Division rules against Respondents, the company may not have a permit. Respondents' October 2, 2003 letter stated that the Appellate Division had rendered a decision in Respondents' favor, and that Jamaica Recycling continues to have a permit. The October 2 letter stated, however, that the Respondents continue to seek the relief sought in their motion.

Respondents also argued that the enforcement action was begun in May 2001, "with no activity by the Department from the Fall of 2001 through mid-2003. " Respondents also stated that, "Although the Department staff has requested information in recent weeks pursuant to a subpoena, " Respondents believe it will be a very lengthy period of time before the DEC Staff files a statement of readiness(2) since the matter has been pending since May 2001. Respondents stated that under State Administrative Procedure Act ( "SAPA ") section 301(1) all parties shall be afforded an opportunity for hearing within reasonable time.

Respondents also requested an expedited hearing on the allegations, under 6 NYCRR 622.13, since numerous allegations in the complaint assert that Respondents are conducting activities prohibited by the permit.

DEC Staff

The DEC Staff argued that the delay in starting the hearing is actually attributable to the actions of Respondents and their counsel, including delay in responding to a subpoena served upon Respondents on June 1, 2001. The DEC Staff stated that, as of December 2001, Respondents' prior counsel had not produced any documents in response to the subpoena despite numerous calls and letters from DEC Staff. DEC Staff also stated although Mr. Rigano has represented Respondents since January 2002, he did not ask DEC Staff for copies of the subpoena until November 2002 and DEC Staff did not receive any documents until February 19, 2003. The DEC Staff noted that there had been unsuccessful settlement discussions during 2002 and early 2003. DEC Staff stated that discovery had not been concluded, and that DEC Staff would review additional documents received from Respondents on September 30, 2003 and determine if Respondents have now fully complied with the subpoena.

The DEC Staff's reply argued that the Appellate Division's recent decision eliminated Respondents' contention that they were prejudiced in that Jamaica Recycling might lose its authorization to operate. The DEC Staff stated that SAPA 301(1) does not set a fixed period of time, and cited Cortlandt Nursing Home v. Axelrod (66 NY2d 169, 495 NYS2d 927 [1985], rearg denied 66 NY2d 1035, cert denied 476 US 1115) as setting the criteria to determine what constitutes a reasonable period of time for providing a hearing in an administrative case. The DEC Staff argued that Respondents' actions had contributed to the current situation and that they were not prejudiced.

The DEC Staff stated that the process for an expedited hearing under 6 NYCRR 622.13 applies to situations where a respondent has no permit, not where, as here, a respondent is cited for violating an existing permit.

DISCUSSION AND RULING

Between the date of the motion and the date of this ruling, the Appellate Division decided the appeal regarding Jamaica Recycling's continued operation under an extension of its permit, which would have expired on December 18, 2001 (see Matter of Jamaica Recycling, Inc. v. New York State Dept. of Envt. Conservation, __ AD2d __, 2003 NY Slip Op 16809 [2d Dept, Sept. 22, 2003]). The court annulled DEC's determination that Jamaica Recycling failed to submit a timely and sufficient renewal application. As a result, Jamaica Recycling's part 360 permit will not expire until DEC makes a decision on the renewal application or other date as specified in SAPA section 401(2).

The delay in issuing a statement of readiness for adjudicatory hearing on the May 2001 allegations is due, in large part, to Respondent's delay in responding to the subpoena. The discovery process may now be nearing an end, in view of the additional documents that Respondents provided to the DEC Staff on September 30, 2003. Mr. Nehila's letter of that date states that the DEC Staff would determine whether the Respondents had fully complied with the subpoena. I encourage the parties to attempt to resolve this question between themselves without undue delay. If disputes remain about the adequacy of the response or about the scope of the subpoena itself, both parties have legal mechanisms available to them for resolving these disputes, including the provisions of 6 NYCRR 622.7.

The arguments submitted by the parties do not provide a basis for concluding that there will be a lengthy delay in scheduling the hearing, once discovery is complete. Respondents' prediction that a hearing would not be scheduled for a long time is based upon the fact that the matter has been pending since May 2001, but it has remained pending since that time at least in part due to Respondents' delay in responding to the subpoena. If the parties move forward with discovery, a hearing can be scheduled to begin within a reasonable time after the statement of readiness is filed.

Respondents have not shown reasons why the hearing should be scheduled now, prior to a statement of readiness. The first part of Respondents' motion, asking that an ALJ be assigned to the case, has essentially been granted by the assignment of this case to me to prepare a ruling on the overall motion.

An additional request contained in the motion was that an expedited hearing be scheduled under 6 NYCRR 622.13 on the complaints' allegations that Respondents are conducting activities prohibited by Jamaica Recycling's permit. The expedited fact finding procedure under that section applies to allegations that a respondent is unlawfully conducting an activity without a permit, not that a respondent is violating its permit. Under section 622.13, these allegations are severed from the other allegations, a hearing is held on them, and the ALJ submits a report to the Commissioner limited to the issue of whether or not the respondent is unlawfully conducting an activity that requires a permit. The Commissioner may then issue an order to desist, upon finding that the respondent is conducting such an unpermitted activity, and the remaining issues including penalty are heard and resolved as part of the original proceeding.

The present situation is not of the kind to which the procedures of 6 NYCRR 622.13 apply. Here, Jamaica Recycling has a permit and the complaints primarily allege violations of the permit and of 6 NYCRR part 360. The motion did not specify which allegations Respondents believe should be the subject of an expedited hearing. The motion states, however, that the Respondents believe the activities are allowed under the permit and that DEC Staff is misinterpreting these matters. This is a question of interpretation of a permit. The paragraphs that allege violations of 6 NYCRR 360-1.7(a)(1)(i) (which prohibits operation of a solid waste management facility except in accordance with a valid part 360 permit) also allege violations of the permit and of other provisions of part 360.

Ruling: The request that an ALJ be assigned to this matter has already been granted. The motion that a hearing be scheduled is denied, without prejudice to future motions about the schedule based upon subsequent events relevant to the hearing. The motion for an expedited hearing under 6 NYCRR 622.13 is denied.

/s/
__________________________
Susan J. DuBois
Administrative Law Judge

Albany, New York
October 9, 2003

To: James P. Rigano, Esq.
John Nehila, Esq.

1 Under the DEC's uniform enforcement hearing procedures (part 622 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, "6 NYCRR part 622 "), motions must be filed with the Chief ALJ if no ALJ has been assigned to a case (6 NYCRR 622.6(c)(1)).

2 DEC administrative enforcement hearings are scheduled upon filing of a statement of readiness for adjudicatory hearing with the Office of Hearings and Mediation Services by the DEC Staff. The statement of readiness must state that discovery is complete or has been waived, or provide an explanation as to why it hasn't been completed (6 NYCRR 622.9).

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