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Johnson, Robert - Ruling, November 22, 1993

Ruling, November 22, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of the Environmental Conservation Law Articles 27 and 71 and of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

ROBERT JOHNSON

Respondent

RULINGS OF ADMINISTRATIVE LAW JUDGE

File No. R1-4339-90-09

Proceedings

The Region 1 Staff of the New York State Department of Environmental Conservation (the "Department Staff"), by Jeanne A. Compitello, Esq., Assistant Regional Attorney, served a Motion for a Summary Order pursuant to 6 NYCRR 622.10 on the Respondent, Robert Johnson, 194 River Road, Nissequogue, New York, on March 18, 1993. The motion consisted of a Notice of Motion for Summary Order, an affirmation by Ms. Compitello which sets forth the factual and legal bases for the motion, supporting affidavits by Staff inspectors and law enforcement officers, and a memorandum of law.

After several extensions granted by the assigned Administrative Law Judge, Andrew S. Pearlstein, the Respondent, by his attorney, Patrick Kevin Brosnahan, Jr., Esq., filed answering papers consisting of an affidavit by Respondent and a memorandum of law. Both parties filed replies which included additional affidavits. The last reply was received in the Office of Hearings on August 16, 1993.

Summary of Charges and Relief Sought

In its Motion for a Summary Order the Department Staff charges the Respondent with operating a solid waste management facility on Respondent's 4.2-acre property located near the intersection of Route 24 (Conklin Street) and Route 110 (Broad Hollow Road) in East Farmingdale, Suffolk County, New York (the "site'), without a permit, in violation of ECL 27-0707(1) and 6 NYCRR 360-1.7(a)(1)(ii). Staff alleges Respondent has continued this violation since December 1989 when approximately 1200 tons of petroleum-contaminated soils were disposed of on the site by a third party, where that material remains currently. Staff also alleges that other solid wastes, including construction and demolition debris and fill material, have been deposited on the site during this period in violation of the regulations.

Staff also alleges Respondent committed a series of related or subsidiary solid waste violations stemming from the basic charge of operating a landfill without a permit. Those include alleged violations of 6 NYCRR 360-1.14(d) and (e), requiring control of public access to a solid waste management facility, and of 360-1.14(b)(1), prohibiting solid waste from being deposited in or entering surface or ground waters. The Department Staff also charges Respondent with operating a landfill in violation of the standards pertaining to Long Island landfills set forth in ECL 27-0704 and 6 NYCRR Subpart 360-8.

The Department Staff seeks a civil penalty and remediation of the site by the Respondent. For remediation, Staff proposes that Respondent follow a compliance schedule that would require Respondent to conduct a detailed site investigation and groundwater sampling program; to implement an approved work plan to correct soil and groundwater contamination; and to pay the Department $25,000 for its projected on-site environmental monitoring costs. Staff seeks a total civil penalty of $693,000 with $400,000 payable and the balance suspended on condition that Respondent complete implementation of the remedial work plan. The penalty amount is based on alleging continuing violations of operating a solid waste management facility and disposing of construction and demolition debris without a permit, since December 1989, pursuant to the penalty provisions of ECL 71-2703(1) and (3).

Summary of Respondent's Position

Respondent admits ownership of the site and that petroleum-contaminated soil was illegally dumped there by a third party in December 1989, but denies that this renders the site a "landfill" within the meaning of the regulations. Respondent also denies that any other solid waste is present on his site other than the petroleum-contaminated soil. Respondent explains that he did have another party use clean dirt to fill and grade a small portion of the site on which formerly stood a demolished restaurant and its septic field. This filling and grading was done pursuant to a permit from the Town of Babylon. Respondent contends this activity likewise does not constitute operating a landfill and is not a violation of the Long Island landfill law.

Respondent also disputes the alleged extent of soil and groundwater contamination at the site, and contends that extensive remediation is not necessary. Respondent further asserts that the requested civil penalty amount is grossly excessive as he is the victim of the illegal dumping and without any fault in the matter. Respondent also asks that the parties responsible for the illegal dumping, who have been convicted of related felonies and have paid fines, be joined in this proceeding and required to pay for any ordered remediation of the site.

Summary of Rulings

These rulings partially grant the Department Staff's motion for summary judgment on two of the charged violations -- unpermitted operation of a solid waste management facility, and lack of control of access to the facility. These rulings further order that a hearing be held on the liability of the Respondent for the other charged violations, as well as on the amount of civil penalties to be imposed and extent of remediation of the site to be ordered. A ruling is reserved on whether additional parties should be joined as co-Respondents in this proceeding.

Findings of Material Undisputed Facts

  1. The Respondent Robert Johnson is the owner of two adjoining lots located adjacent to and southwest of the intersection of Conklin Street (Route 24) and Broad Hollow Road (Route 110) in East Farmingdale, Town of Babylon, Suffolk County, New York (the "site"). On the Suffolk County Tax Map, the lots are designated as Lots 4 and 5 in District 0100, Section 049, Block 2. Lot 4 consists of approximately 0.6 acres and Lot 5 is approximately 3.6 acres. The site's street addresses are 1330 and 1390 Broad Hollow Road. Respondent has owned Lot 4 since May 13, 1988 and Lot 5 since 1984.
  2. On several days in December 1989, trucks operated by Jo-Mar Environmental Specialists, Inc. ("Jo-Mar") dumped a total of approximately 1200 tons of petroleum-contaminated soil on Respondent's site. Jo-Mar had contracted with Tyree Brothers Environmental Services ("Tyree") to transport this soil from several gasoline service stations in the New York City metropolitan area to an authorized facility upstate. Instead, Jo-Mar dumped the soil on Respondent's site and presented falsified manifests to Tyree. Representatives of Tyree followed Jo-Mar's trucks to the site and notified the Department's Division of Law Enforcement, which placed the site under surveillance.
  3. Jo-Mar and its President, Robert Dalcamo, were arraigned on a felony complaint charging them with three counts of endangering public health, safety or the environment (ECL 71-2713[3]), for this illegal dumping on Respondent's site, and two counts of possession of a forged instrument (PL 170.25). On June 4, 1991 Robert Dalcamo entered a guilty plea to three counts of endangering the environment by illegal dumping. Jo-Mar also pled guilty to those three charges, as well as to the two forgery counts. On January 22, 1992, the defendants were sentenced. Jo-Mar was sentenced to a fine of $10,000 and required to file a certificate of dissolution within one year. Dalcamo was sentenced to six months incarceration with five years probation; payment of $51,000 restitution to the State of New York; and execution of a confession of judgment in favor of the State in the amount of $189,000. Dalcamo was also prohibited from any future involvement in any environment related business or activity.
  4. The Respondent Robert Johnson had no prior knowledge or involvement in this illegal dumping on his site by Jo-Mar. He was informed of it in a meeting with a Department investigator in January 1990. The petroleum-contaminated soil remains on the site today.
  5. The Department Staff served two Notices of Violation on Respondent in July 1990 charging him with operating a landfill without a permit and violating the Long Island Landfill Law. After Respondent's attorney contacted the Department Staff, no further action was taken against Mr. Johnson until the instant Motion for a Summary Order.
  6. In October or November 1989, the Respondent arranged with one Harold McKay to fill and grade a small portion of the site where a former restaurant had been recently demolished. The demolition and filling was pursuant to a permit from the Town of Babylon. Mr. McKay then filled and graded the former restaurant's basement and septic field footprints with inert materials. He also bermed that area to restrict access. In return, Respondent allowed Mr. McKay to park his earthmoving equipment on the site.
  7. The Respondent has neither held nor applied to the Department for a permit to construct or operate a solid waste management facility at the site any time from 1988 to the present. Respondent also did not send a letter to the Department Staff concerning Mr. McKay's intended filling and grading a portion of the site.
  8. There is no attendant on duty at Respondent's site, and access to Respondent's site is not controlled by gates, fencing, signs or any other means.
  9. Respondent's site is not underlain by a low-permeability liner, and it does not have a leachate collection and removal system.
  10. Respondent's site is located outside of a "deep flow recharge area" as that term is defined in ECL 27-0704(1)(b).
  11. Respondent's site is a vacant lot that has had some material disposed of on it. It has none of the appurtenances, equipment, infrastructure, or signs of operation of an active or commercial solid waste management facility or landfill.

Disputed Facts

The undisputed findings of material facts are listed above. They are sufficient to enable me to render decisions on the liability of Respondent for certain of the charged violations, once legal issues are also determined, as addressed below in the Discussion section of this report. The disputed facts primarily relate to matters that need not be resolved in order to render a determination of liability. They could well, however, have a major impact on the amount of civil penalties to be imposed and on the remedial relief sought by the Department Staff. Therefore, these disputed factual matters will be reserved for a hearing to assess the amount of civil penalties and the nature of the remedial relief to be imposed, pursuant to 6 NYCRR 622.10(e). The disputed factual matters are listed below.

Additional Solid Waste

The affidavits frame a dispute over whether any additional material or solid waste has been deposited on the site besides the petroleum contaminated soil dumped by Jo-Mar, and the fill material used by McKay. Staff's photographs and observations of such material on site are contradicted by Respondent's assertions that some portions of the Staff's photographs do not depict his property. Respondent also asserts that any scattered casual debris material that may be on site does not constitute deposited solid waste. Staff's affidavits and photographs, in light of Respondent's assertions, are not sufficient to support factual findings concerning the presence of solid waste on those portions of the site not occupied by the petroleum-contaminated soil or the McKay fill. This evidence would have to be presented with a proper foundation and weighed along with all other evidence on this issue through the adjudicatory hearing process.

Respondent's liability for unpermitted operation of a solid waste management facility is already established by the existence of the petroleum-contaminated soils on site. The nature and extent of any additional materials on site is an issue relevant to the ultimate determinations of appropriate civil penalties and remedial relief in this proceeding. Those issues will remain for resolution at the hearing.

Nature and Extent of McKay's Filling and Grading on Site

The Respondent contends that the material he had Mr. McKay bring on site to grade the old restaurant basement and septic field was "clean fill" or "clean dirt." The Department Staff disputes that. However, none of the affidavits by either party are based on sufficiently specific firsthand observation to be able to pinpoint the exact nature, quantity, and sources of the material used for this purpose by McKay. The materials encompassed by the definition of "clean fill" (6 NYCRR 360-1.2[b][22]) are somewhat more extensive than those specified for a complete exemption from the Long Island Landfill law set forth at 360-8.6(b)(1). However, for the purposes of deciding this motion, Respondent's assertion that only clean dirt was used must be accepted as true.

As further discussed below (in the Long Island Landfill Law Violations subsection of the Discussion section of this Report), Respondent has committed a violation of 360-8.6 of the Long Island landfill regulations governing the disposal of clean fill. But the dispute over the nature and sources of the McKay fill prevents making a determination as to which subdivision of 360-8.6 Respondent has violated. Further explication of the facts regarding the McKay fill material will also be relevant to weigh the gravity of the violation and could affect the determination of appropriate remediation for that portion of the site. Therefore, the issue of the exact nature, extent, and sources of the fill material used by McKay will be reserved for hearing.

Extent of Soil and Groundwater Contamination

The Department Staff submitted some soil and groundwater analysis results taken by a laboratory retained by a prospective purchaser of the site in 1988. The results show detectable or elevated levels of some heavy metals and organic compounds in the groundwater and soil samples taken from the site at that time. Other analyses of the soils taken from one of the gasoline filling stations and later disposed of on the site by Jo-Mar confirm their petroleum contamination.

However, as Respondent points out, these analysis reports alone fail to establish the extent or seriousness of the contamination, or its cause. The samples were actually collected before the petroleum-contaminated soils were deposited on Respondent's site. As with the photographs, these reports would have to be presented as evidence, subject to a proper foundation and cross-examination at hearing, in order to find the facts concerning the extent of contamination on the site and in its groundwaters.

As discussed further below (in the Discussion section of this report), the motion papers are sufficient to establish that Respondent has violated 6 NYCRR 360-1.14(b)(1) which requires the prevention of solid waste from entering surface or groundwaters. However, while it may be true, as Staff contends, that the sampling reports tend to show a need for further investigation and remediation of the site, the paper submittals alone do not establish the need for the extensive and detailed compliance schedule proposed by Staff. Respondent has disputed the need for such a program. Staff will have the burden at the hearing to support its proposed relief. Thus, the extent of any contamination caused by Respondent, and the nature of an appropriate investigation and remedial program for the site remain to be determined at hearing.

Civil Penalty Factors

The Department Staff seeks a civil penalty in this proceeding in the amount of $693,000 with $400,000 payable and $293,000 suspended pending successful completion of the proposed compliance schedule. Respondent contends that, even if he is liable for any of the alleged violations, the amount sought is excessive. Staff contends "that no triable issue of fact is presented because the amount of penalties is far below the statutorily prescribed amount." The Respondent stresses mitigating factors in his favor, primarily the fact that he gave no authorization for any dumping of solid waste on his property, rendering him an "innocent victim."

The mere fact that a proposed penalty amount is below, even far below, the statutory maximum, does not eliminate the amount of penalty as a potential issue for hearing. The Respondent is always entitled to show all arguable mitigating factors in his favor in an attempt to further reduce the penalty. Certainly the amount sought here by Staff is large in both an absolute and relative sense. The amount of a civil penalty must be viewed "in context with the nature of the misconduct, the degree of harm or potential harm that the misconduct visits on the public welfare and prevailing societal views." Vito v. Jorling, App.Div., 3rd Dept., #67886, October 28, 1993. In terms of the Commissioner's Civil Penalty Policy the following factors are in dispute and could greatly affect the amount of any civil penalty ordered against Respondent in this proceeding: economic benefit to Respondent; actual and potential environmental harm; and Respondent's culpability and cooperation. These are all issues that can be appropriately addressed at the hearing that could affect the ultimate civil penalty imposed on Respondent.

Discussion

This motion for a summary order is authorized by 6 NYCRR 622.10 which is based on the motion for summary judgment provided in the CPLR 3211. "The motion for summary order shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established to warrant the granting of summary judgment under the CPLR in favor of any party." 6 NYCRR 622.10(c). "The motion shall be denied if any party shall show facts sufficient to require a hearing of any issue of fact." 6 NYCRR 622.10(d). Partial summary judgment may be granted on one or more separate causes of action. Even if summary judgment is not granted, the ALJ may issue an order establishing undisputed facts for all purposes in the action. Further, "[t]he existence of a triable issue of fact as to the amount of civil penalties which should be imposed shall not bar the granting of a motion for a summary order." 6 NYCRR 622.10(e). In that circumstance, "the hearing officer shall convene an immediate hearing to assess the amount of civil penalties which should be recommended to the commissioner."

The determination whether to grant summary judgment is always sui generis, dependent on the particular facts presented in each case. However the numerous reported cases establish some general guidelines. Summary judgment is a drastic remedy that deprives a litigant of his day in court, and should only be employed when there is no doubt as to the absence of triable issues. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). However, a shadowy semblance of an issue, or bald conclusory assertions, even if believable, are not enough to defeat the motion. Metropolitan Bank of Syracuse v. Hall, 52 A.D.2d 1084, 384 N.Y.S.2d 305 (1976).

Both the party seeking summary judgment and the party opposing it must submit supporting affidavits by persons with knowledge of the facts. CPLR 3212(b); S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974). The court will accept as true on a summary judgment motion the opposing party's evidence and any evidence of the movant that favors the opposing party. Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (1964). But facts alleged by the movant not controverted by the opponent may be assumed to be true. John William Costello Associates, Inc. v. Standard Metals Corp., 99 A.D.2d 227, 472 N.Y.S.2d 325 (1984). The judge must examine the parties submissions with the goal of finding issues, not determining them. Sillman v. Twentieth Century Fox F. Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957). If no material issue of fact is presented, summary judgment is appropriate to decide issues of law. Marinas of the Future, Inc. v. City of New York, 87 A.D.2d 270, 450 N.Y.S.2d 839 (1982).

The Respondent asserts that the Department Staff failed to properly frame this motion for a summary judgment with a pleading or complaint. However, that form of motion is not necessary under the applicable regulation governing the procedure for a motion for summary order before the Department. In fact, 6 NYCRR 622.10(a) provides that a motion for summary order with supporting affidavits be served in lieu of a complaint. If the motion is ultimately denied, the moving and answering papers will be deemed the complaint and answer (622.10[d]). In this proceeding, the Department Staff's motion papers include an affirmation in support of the motion by the Staff attorney that serves as the full functional equivalent of a complaint.

Operating a Solid Waste Management Facility Without a Permit

The basic charge alleged by Department Staff against Respondent in this proceeding is that of operating a solid waste management facility without a permit. The other alleged violations of operation and construction requirements, and of the Long Island Landfill Law, all derive from this basic charge. If Respondent was not operating a solid waste management facility on his site, then the charges would have to be dismissed.

This case squarely presents the question of whether an "innocent" landowner can be held liable for the unpermitted operation of a solid waste management facility due to the unauthorized dumping of solid wastes on his land by a third party. On the Department Staff's motion for summary judgment we must assume the truth of the Respondent's assertions supported by affidavits of personal knowledge. Here Staff is not even alleging that Respondent had any prior knowledge of the dumping of the petroleum-contaminated soil on his site by the third party, Jo-Mar. There is no dispute that Respondent had nothing to do with this illegal dumping activity.

Respondent did authorize the limited grading and filling of the site by McKay, but that activity was minor compared to the petroleum-contaminated soil dumping and may even be exempt entirely from Part 360 requirements. If the only alleged violation concerned Mr. McKay's grading, it is unlikely even that a formal enforcement proceeding would have been commenced. The exact nature of the Mr. McKay's activity, and the composition and sources of his fill material is in dispute, and will be considered separately. Also in dispute and reserved for hearing is the factual issue of whether any other solid waste, besides the petroleum-contaminated soil, and possibly the McKay fill, is present of the site. Therefore, for the purpose of this motion for summary order, the purely legal question of Respondent's liability is presented on the undisputed facts surrounding Jo-Mar's dumping of the contaminated soil on Respondent's land.

This Department has given a broad interpretation to the meaning of the terms "operating" a "solid waste management facility." A "solid waste management facility" is defined as follows at 6 NYCRR 360-1.2(b)(145):

"`Solid waste management facility' means any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to: storage areas or facilities; transfer stations; . . . landfills; disposal facilities; . . ."

In plain English, this definition encompasses any place that has solid waste brought there from someplace else. A "facility" is "something that is built, installed, constructed or established to perform some particular function or to serve some particular end." (Webster's Third New International Dictionary, Unabridged, G. & C. Merriam Co., Springfield, Mass., 1985, p. 812). The petroleum-contaminated soil is indisputably "solid waste" as that term is defined in 6 NYCRR 360-1.2(a). Unfortunately for Mr. Johnson, Jo-Mar served its own felonious ends by disposing of that petroleum-contaminated soil on Respondent's site, rendering it a solid waste management facility.

"Operation" of a solid waste management facility is defined at 6 NYCRR 360-1.2(b)(102), somewhat redundantly, as "operation of the facility after initial receipt of solid waste." However, "operator" is defined in paragraph 104 of that subdivision as "the person who is in charge of a solid waste management facility and has the authority and knowledge to make and implement decisions regarding operating conditions at the facility." In Webster's (p.1580), to "operate" means "to cause to occur; bring about by or as if by the exertion of positive effort or influence . . . to manage and put or keep in operation whether with personal effort or not."

Under these definitions, the Respondent is an operator of his site which became a solid waste management facility. The fact that Mr. Johnson had no prior involvement in Jo-Mar's dumping is irrelevant. Operation, by definition, does not even begin until after the initial receipt of solid waste at the facility. As the owner of the site, Respondent was and remains the only person who could be characterized as its operator. He is the only person who has the authority to make and implement decisions regarding the condition and presence of the solid waste dumped on his property. Obviously, Respondent has not operated the site actively in the usual sense. But his passivity, or failure to take any action thus far to clean up the site, nevertheless constitutes "operation" of the site within the meaning of the regulations.

These interpretations of the definitions of "operating" a "solid waste management facility" do, in effect, render an innocent landowner strictly liable for the unpermitted dumping of solid waste on his property. The Department Staff has cited several administrative decisions and court cases in which this proposition has been discussed. In both Matter of Monty H. Campbell (Decision and Order of the Commissioner, July 13, 1992) and Frje Holding Corporation v. Jorling, 598 N.Y.S.2d 100 (App. Div., 3rd Dept., 1993), the discussions were dicta. In both those cases the landowner was found to have had actual knowledge or direct involvement in the deposition of solid waste. Also in this vein is the Commissioner's statement in Matter of Krevolin Construction, Inc. (Order of the Commissioner, April 20, 1991, page 1) that "[t]he concept of site owner does not require any participation in or knowledge of the facility's operation." These precedents nevertheless provide support for the conclusion in this proceeding.

A landowner can be found liable for the unpermitted operation of a solid waste management facility by virtue of the unauthorized disposal of solid wastes on his or her property, despite that landowner's total lack of prior involvement with or knowledge of the disposal. The landowner will generally be the most readily available party with any authority over the site necessary for its cleanup. As stated in Campbell, however, such lack of knowledge of the landowner respondent would certainly be considered a mitigating factor in determining an appropriate civil penalty.

Solid Waste Management Facility Operational Violations

As a solid waste management facility, Respondent's site is subject to the general operational requirements for such facilities set forth in 6 NYCRR 360-1.14. In its motion for summary judgment, the Department Staff has cited three such requirements with which it alleges the Respondent's site is not in compliance. As stated above in the findings of fact, it is undisputed that Respondent had no fences, signs, gates, or any other means to control access to the site. Thus, Respondent violated 6 NYCRR 360-1.14(e) which requires such control of access.

The Department Staff also charged Respondent with violating 360-1.14(d) which allows receipt of waste and public access to a facility only when an attendant is on duty. However that subdivision states that "[t]his provision does not apply to facilities . . . without permanent operating equipment." The motion papers indicate that Respondent's site does not have any permanent operating equipment. Hence this requirement does not apply, and this charge is dismissed.

The Department Staff has also charged the Respondent with violating 6 NYCRR 360-1.14(b)(1). That paragraph states that "[s]olid waste must not be deposited in, and must be prevented from, entering surface waters or groundwaters." Proof that solid waste or leachate has actually entered surface or groundwaters is not necessary in order to find a violation of this regulation. A violation can also be premised on the failure to prevent such deposition or migration of leachate. In this case it is undisputed that the petroleum-contaminated soils are deposited on the ground with no liner, leachate collection system, or any other means to prevent the migration of leachate from that solid waste into groundwater. Leachate itself is defined as solid waste (see 6 NYCRR 360-1.2[b][91]). The uncontrolled nature of the solid waste on the site thus renders Respondent in violation of 360-1.14(b)(1). The extent of groundwater contamination remains a factual issue for the adjudicatory hearing, as relevant to the civil penalties and remedial relief that will be ordered as a result of this proceeding.

Long Island Landfill Violations

The Department Staff also charges the Respondent with violating the requirements applicable to landfills on Long Island set forth in ECL 27-0704, 6 NYCRR Part 360, and Subpart 360-8. Staff characterizes Respondent's site as a landfill that does not meet the criteria of the "Long Island Landfill Law." Although Staff does not cite particular subsections of the Long Island Landfill Law statute, ECL 27-0704, or its regulations, 6 NYCRR Subpart 360-8, Staff does allege that the site does not have the required leachate management system or double synthetic liner required for Long Island landfills. The Department Staff also alleges Respondent had no permit or other authorization from the Department to operate a landfill in Suffolk County under the Long Island Landfill Law.

In order to come under the general jurisdiction of the Long Island Landfill law, the site must be a "landfill." A "landfill" is defined at 6 NYCRR 360-1.2(b)(88) as "a disposal facility or part of one at which solid waste . . . is intentionally placed in or on land, and at which solid waste will remain after closure . ." The petroleum-contaminated soil was intentionally placed on Respondent's land (although not by him). While it cannot be definitively known at this time whether the waste will remain there after closure, such speculation is unnecessary. The only logical test to apply is to examine the intent of the party who deposited the waste. In this case there is no basis to infer anything other than that Jo-Mar dumped the petroleum-contaminated soils with the intent that they remain on the site, rendering the site a landfill.

The Respondent is innocent of the dumping of the petroleum-contaminated soils on his site. Thus, even though that part of the site was thus rendered a landfill, he will not be subject to any additional penalties stemming from that finding. On the other hand, if Jo-Mar and/or its President, Robert Dalcamo, were parties to this proceeding, they should and would not be able to claim any such consideration, unless they could assert and prove different facts concerning their intent in the dumping. This would appear highly unlikely in view of their convictions for the illegal dumping.

The site may be considered to be divided into three potential solid waste disposal area, each of which will have to be treated separately in terms of penalties and remedial relief, if not liability. The facts adduced at hearing will determine whether Respondent may be found liable for additional "counts" of unpermitted operation of a solid waste management facility. In addition to the areas covered by the petroleum contaminated soils, there is the McKay fill area, and the remainder of the site. Additional fact-finding will be required to determine whether the material in those latter two areas will support additional violations subject to additional civil penalties and/or remedial relief. The existence of solid waste on the remainder of the site (other than the petroleum-contaminated soils and the McKay fill) is a disputed issue to be resolved at hearing.

With regard to the McKay fill, Respondent does concede that McKay graded and filled a small portion of the site where the former restaurant was demolished. He variously characterizes the material used as "clean dirt" or "clean fill" without specifying its source or even whether some or all of this material came from on or off the site. The memo to Respondent from Mr. McKay indicates that material from the site itself was used for at least part of the work. As discussed above in the section on Disputed Facts, it is necessary to elucidate the facts regarding the nature, extent and sources of the material used by McKay to fill and grade the demolished restaurant portion of the site.

Section 360-8.6 of Subpart 360-8, entitled "Disposal of clean fill," establishes three levels of regulation of sites that dispose of clean fill (or a limited class of clean fill materials) on Long Island, depending on the exact nature and source of the fill and size of the site. Subdivision (b) provides that a site is exempt from all Part 360 regulation as a solid waste management facility if "only recognizable concrete and other masonry solid waste (including steel reinforcing rods that are embedded in concrete), sand, dirt, soil, brick, stone and glass is placed for the purpose of land reclamation, such as grade adjustment before construction of a building, parking area, or roadway;" and at which that solid waste is "generated and placed as fill on the same property." 6 NYCRR 360-8.6(b)(1,2). Under the most favorable interpretation of the facts concerning the McKay fill on the site, Respondent may have been entitled to claim this exemption.

However, Respondent never sent a prior letter to the Department Staff describing the proposed filling project, as required by paragraph (3) of this subdivision. Thus, even if the McKay fill portion of Respondent's site could have been exempt from Part 360, Respondent never perfected that exemption by sending the required letter of intent. If the facts adduced at hearing indicate this portion of the site could be exempt under subdivision (b), Respondent will still have committed a violation by not sending the letter. But this would not render that portion of the site a landfill subject to all the technical requirements in Part 360. Respondent's violation would be limited to his failure to obtain authorization for on-site filling and grading, an exempt activity.

However if it is determined at hearing that McKay used material from off the site, even if limited to clean concrete, dirt, stone, sand, soil, brick and glass, then that portion of the site would be subject to a higher level of regulation set forth in 6 NYCRR 360-8.6(c). This subdivision requires submission of applications for permits to construct and to operate, and includes engineering standards governing access to the facility, side slopes, placement of fill and cover, and final cover. Liners and leachate collection systems are not required under this subdivision, but a violation of this regulation would be more serious and more likely to incur a larger penalty and/or more extensive remediation than a violation of subdivision (b) of section 360-8.6.

If it is determined at hearing that McKay used other materials constituting clean fill besides those specified in subdivisions (b) and (c), the site would be regulated under subdivision (d) of section 360-8.6. In that case, that portion of the site would be subject to almost the full panoply of construction, operation, and engineering standards for landfills in Subpart 360-2, with somewhat less stringent requirements for liners and leachate collection systems. If Respondent is found to have violated 360-8.6(d), the potential civil penalty would be greater and potential remediation more extensive for this portion of the site, in accord with the greater gravity of the violation.

To summarize, the motion papers do establish that at least one portion of Respondent's site is a landfill subject to the Long Island Landfill Law and to other regulations specifically governing landfills. It remains possible that the hearing will reveal facts that could lead to conclusions expanding those portions of the site that could be considered a landfill. The site can be viewed as consisting of three distinct areas in this regard: the area covered by the petroleum-contaminated soils; the area filled and graded by McKay; and the remainder of the site. Since liability for at least the petroleum-contaminated soils is already established, the practical effect and chief purpose of this additional fact-finding will be primarily to fashion appropriate relief in terms of civil penalties and site remediation.

In addressing the issue of how much of the site is a "landfill," however, the overall perspective of the actual nature of this site should not be lost. This site was never intended to be an active, operating landfill in the normal sense, that would be subject to the Part 360 technical standards. The entire panoply of construction and operation standards for landfills set forth in 6 NYCRR Subparts 360-2 and 360-8 is directed towards planned, permitted, active facilities -- not towards a casual, unauthorized dumping site such as Respondent's property in this proceeding. Staff seems to have recognized this by not charging the Respondent with violating the myriad technical requirements for landfills set forth in 6 NYCRR Subpart 360-2 and in 360-8.6. Although Respondent's site is technically a "solid waste management facility" and a "landfill" as those terms are defined in the regulations, penalties and remedial relief may be tailored to accord with the actual facts regarding the nature of the site and the materials disposed of on it.

Civil Penalties and Remediation

As stated above in the section on Disputed Facts, the facts surrounding all the usual chief penalty factors are in dispute. Staff is seeking a large penalty here -- $693,000 with $400,000 payable and the balance suspended -- plus extensive and costly remediation. The Respondent has shown at least one potentially very substantial mitigating factor in his favor -- his innocence in the disposal of the petroleum-contaminated soils on his site. Other penalty factors that are in dispute are the degree of environmental harm caused by the solid waste on Respondent's site, and any economic benefit to Respondent. The Respondent has also disputed the need for the extensive remedial compliance plan sought by the Department Staff. All these matters are subject to fact-finding at the hearing, which can later be used by the parties to argue their positions on the appropriate civil penalties and remediation to be imposed in this case.

Joinder of Third Parties

The Respondent asserts that Jo-Mar, Robert Dalcamo, Tyree, and the three gasoline filling stations involved in the dumping of the petroleum-contaminated soil on Respondent's site, should be joined as "necessary and indispensable parties to this proceeding." For the purposes of these rulings, I will construe Respondent's assertions as a motion for such joinder. Respondent also claims that the fines paid by Jo-Mar and Dalcamo upon their guilty pleas to the felonies for the illegal dumping, amounting to $250,000, were intended to be used as "restitution" or to clean up the site. The Department Staff does not directly address this assertion, but claims that the Respondent, as the site owner, is the only party now available to remediate the site and that Respondent can later pursue legal remedies against Jo-Mar and the others for restitution.

The Department's enforcement hearing regulations provide for joinder of parties consistent with the CPLR. 6 NYCRR 622.12(c)(2) provides that "[n]onjoinder of a necessary party as defined by the CPLR is a ground for dismissal of the hearing without prejudice unless the hearing officer, in the interest of justice, allows the hearing to proceed without such party." 6 NYCRR 622.12(c)(3) provides that "[p]arties may be added or dropped by the hearing officer on motion of any party or on his own initiative at any stage of the hearing and upon such terms as may be just." Both these provisions track the language of CPLR 1003.

CPLR 1001(a) defines necessary parties or "parties who should be joined" as "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action . . ." The absence of Jo-Mar, Dalcamo and the other parties cited by Respondent will not prevent complete relief being granted as between the Department Staff and Respondent in this proceeding. Those parties also cannot be adversely affected by the decision in this proceeding so long as they are not parties. Their status is analogous to that of potential joint tort-feasors. It is well established that joint tort-feasors are not necessary parties under the CPLR. Siskind v. Levy, 13 A.D.2d 538, 213 N.Y.S. 2d 379 (1961). Hence there is no ground for dismissal of this proceeding due to nonjoinder of a necessary party.

However, at least Jo-Mar and Dalcamo are parties who could be joined permissively as respondents consistent with the principles of CPLR 1002 (permissive joinder) and 1007 (third-party practice). The potential liability of those parties for the violation of unpermitted operation of a solid waste management facility arises out of common questions of law and fact concerning the disposal of petroleum-contaminated soil on Respondent's site. (See CPLR 1002[b]). In addition, Respondent claims that those parties are liable to him for all or part of the Department Staff's claim for remediation and civil penalties. (See CPLR 1007). Under 6 NYCRR 622.12(c)(3) and CPLR 1003 such parties may be added by the Administrative Law Judge upon motion by any party or on his own initiative upon such terms as may be just.

While this ruling does find the Respondent committed the violation of operating a solid waste management facility without a permit, he has shown disputed facts that will require a hearing on the amount of civil penalty that should be imposed and the remediation to be ordered, if any. The undisputed facts indicate that Jo-Mar and Dalcamo are responsible for the major portion of the disposal of solid waste on Respondent's property that gave rise to this proceeding, and that they have already paid substantial criminal penalties for their actions. Their presence as co-respondents in this proceeding would be fully consistent with the principles of permissive joinder and third-party practice in the CPLR. It would allow adjudication of all claims concerning responsibility for penalties and remediation of the site in a single forum. Such joinder could thereby accelerate the achievement of the Department's ultimate goal of appropriately protecting the environment affected by Respondent's site.

The Department Staff has apparently exercised its prosecutorial discretion by bringing this enforcement action only against the site owner, Mr. Johnson. In view of the circumstances summarized above, however, Staff's reasons for so exercising its discretion are not adequately explained. Therefore, at this juncture in the proceeding, I will reserve ruling on whether Jo-Mar and Dalcamo should be added to this proceeding as co-respondents. If the Department Staff objects to adding those parties, it will have 20 days from the date of these rulings to submit a response to the request of the Respondent (and inquiry by the Administrative Law Judge) that those parties be joined as co-respondents in this proceeding.

Conclusions

  1. Respondent Robert Johnson has operated a solid waste management facility, a landfill, without a permit on his site in the Town of Babylon, in violation of 6 NYCRR 360-1.7(a)(1)(ii). Respondent's liability for this violation stems from the disposal of petroleum-contaminated soils on his site by a third party, Jo-Mar, although Respondent had no prior knowledge or involvement in this disposal.
  2. Respondent is in violation of 6 NYCRR 360-1.14(b)(1) which requires the prevention of solid waste from entering surface or ground waters.
  3. Access to Respondent's site was not controlled by fencing, gates, signs, or other suitable means, constituting a violation of 6 NYCRR 360-1.14(e).
  4. The charge of violating 6 NYCRR 360-1.14(d), requiring an attendant on duty, is dismissed as not applicable to Respondent's site.
  5. Respondent committed a violation of 6 NYCRR 360-8.6 regulating the disposal of clean fill on Long Island. The specific subdivision of that section violated will depend on the facts adduced at hearing concerning the nature, extent, and sources of the material used by Mr. McKay to fill and grade a portion of Respondent's site formerly occupied by a demolished restaurant and its septic field.
  6. Other facts to be adduced at hearing concerning any other wastes disposed of on other parts of the site could also bear on whether Respondent could be found liable for additional counts of unpermitted operation of a solid waste management facility.
  7. The facts to be adduced at hearing will determine the amount of any civil penalty to be imposed on Respondent and the terms of any remedial plan he may be ordered to carry out on the site. The extent of possible violations on the site concerning the McKay fill and those portions of the site not covered by the contaminated soils remain in dispute and will have a bearing on the amount of any civil penalties and remedial relief ordered in this proceeding. In addition, general civil penalty and remedial relief factors in dispute relate to the gravity of the violations, the intent and cooperation of the Respondent, the extent of environmental harm, and economic benefit to Respondent.
  8. Jo-Mar Environmental Specialists, Inc. and Robert Dalcamo are parties who may be joined as co-Respondents in this proceeding under 6 NYCRR 622.12(c)(3), consistent with the principles of the CPLR.

Order of Disposition

The Department Staff will have 20 days from its receipt of these rulings to submit its response to the motion of the Respondents to join Jo-Mar and Dalcamo as co-Respondents in this proceeding. After I rule on that joinder issue, this matter will be set for hearing at the mutual convenience of the parties in accord with the Conclusions set forth above.

This ruling is not appealable at this juncture, but all recommendations of the Administrative Law Judge are subject to the ultimate decision of the Commissioner in his final Decision and Order that he will issue after the hearing record closes.

_____________/s/_____________
Andrew S. Pearlstein
Administrative Law Judge

Dated: November 22, 1993
Albany, New York

To: Jeanne A. Compitello, Esq.
Assistant Regional Attorney
NYSDEC Region 1
SUNY Stony Brook, Building 40
Stony Brook, New York 11790-2356

Patrick Kevin Brosnahan, Esq.
The 1826 House
73 West Main Street
Babylon, New York 11702

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