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Juda Construction, Ltd - Ruling 3 , June 24, 2002

Ruling 3 , June 24, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of

the alleged violation(s) of the New York State Environmental Conservation Law (ECL)
Article 27 and Part 360 of Title 6 of the Official Compilation of Codes, Rules, and Regulations
of the State of New York (NYCRR)

- by -

JUDA CONSTRUCTION, LTD.,
FULLERTON AVENUE LAND
DEVELOPMENT, LTD., and
JOSEPH ATTONITO
636 Saw Mill River Road
Yonkers, New York,

Respondents.

RULING ON MOTION
FOR SUMMARY ORDER

Case No: 3-20010208

June 24, 2002

Proceedings

Pursuant to the provisions of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR") Sections 622.6(c) and 622.12, the New York State Department of Environmental Conservation ("the Department") has moved for an order without hearing in connection with its notice of hearing and complaint against Respondents Juda Construction, Ltd. ("Juda"), Fullerton Avenue Land Development, Ltd. ("Fullerton") and Joseph Attonito (collectively, "Respondents").

The Department's complaint alleges two causes of action: first, that Respondents operated a solid waste management facility at 300 Fullerton Avenue, Yonkers, New York (the "Site"), processing non-exempt construction and demolition ("C&D") debris without a registration or permit. Second, the complaint alleges that Respondents refused consent for authorized Department Staff to enter upon and inspect the Site, in violation of 6 NYCRR Section 360-1.4(b). By its motion, Department Staff seek an order finding the Respondents in violation, imposing a civil penalty of $97,000, and ordering the Respondents to cease and desist from any further violations. Department Staff also contend that Respondent Joseph Attonito should be held personally liable for the violations of Fullerton and Juda, the corporate entities named in the complaint.

The Department served a notice of hearing and complaint on Respondent Juda on or about February 15, 2001. Juda submitted an answer to the complaint dated March 1, 2001. On March 9, 2001, the Department moved to clarify Juda's affirmative defenses by serving Juda with a notice of motion and Affirmation of Carol Backman Krebs, Esq. in support of the motion. The Department filed the motion papers with the Department's Office of Hearings and Mediation Services on or about March 20, 2001. Juda opposed the motion. On April 23, 2001, a ruling issued, granting the Department's motion in part, and denying it in part.

On May 16, 2001, the Department sought leave to amend the complaint to add Respondents Fullerton and Joseph Attonito. Juda opposed the motion for leave to amend by the Affidavit in Opposition of Michele Marianna Bonsignore, Esq. dated May 24, 2001 ("Bonsignore Affidavit"). In a ruling dated August 23, 2001, the Department's motion was granted, and on August 28, 2001, the Department served an amended complaint. Respondents filed an amended answer on September 7, 2001.

On November 21, 2001, Department Staff filed this motion for order without hearing. Following service of the motion, counsel for Respondents sought, and were granted, an extension of time to respond, because the parties were involved in settlement negotiations. When those efforts failed, the Respondents filed a response, and cross-moved for summary judgment on February 7, 2002. Staff was granted an extension of time until March 4, 2002 to submit a response to the cross-motion. Respondents filed a reply on March 12, 2002.

For the reasons set forth below, Department Staff's motion, and Respondents' cross-motion, are denied. There are facts in dispute which preclude a grant of summary relief with respect to the first cause of action, as well as Department Staff's contention that Joseph Attonito should be held personally liable for the alleged violations of Juda and Fullerton. Moreover, with respect to the alleged refusal by Respondents to consent to an inspection of the Site (the second cause of action), the regulation which authorizes the Department to conduct such inspections requires a hearing on that refusal. See 6 NYCRR Section 360-1.4(b). Thus, that cause of action may not be resolved on a motion for order without hearing.

Motion Procedures

Department Staff seek an order without hearing against Respondents pursuant to 6 NYCRR Sections 622.6 and 622.12. Section 622.12(d) 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 [New York Civil Practice Law and Rules] in favor of any party." This language follows the wording of Section 3212 of the CPLR, the provision governing motions for summary judgment.

Section 622.12(e) mandates denial of the motion "with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing." Thus, in order to succeed on the motion, Department Staff must demonstrate, based upon the papers submitted, that there is no material issue of fact in dispute such that a hearing is required, and that summary relief is appropriate, based upon the undisputed facts.

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, 364 (1974). Moreover, on a motion for summary relief, a court will accept as true the evidence put forward by the party opposing the motion. Baker v. Briarcliff School Dist., 205 A.D.2d 652, 653 (2d Dept. 1994); Matter of Johnson, ALJ Ruling, 1993 WL 1480627, *6 (Nov. 22, 1993).

The Respondents bear the burden of proof as to their cross-motion, which is treated here as a motion for summary judgment. Even if the motion for order without hearing is denied, the administrative law judge may issue an order establishing undisputed facts for all purposes in the action. 6 NYCRR § 622.12(e).

Merits of the Motion

First Cause of Action - Unpermitted Operation

Department Staff's motion contends that a summary order is appropriate as to the first and second causes of action set forth in the amended complaint. With respect to the first cause of action, according to Department Staff, the Respondents operated a solid waste management facility without a permit, in violation of 6 NCYRR Section 360-16.1(c), by receiving and processing non-exempt construction and demolition ("C & D") debris(1) at the Site. Section 360-16.1(c) of 6 NYCRR provides that "no person shall construct or operate a facility used to receive, treat or process C&D debris without first having obtained a permit to do so pursuant to this part."(2) I n addition, Department Staff allege that the Respondents engaged in the unpermitted disposal of C & D debris, in that the Respondents did not have a permit or registration for the activities undertaken at the Site.(3) Respondents argue that an exemption is applicable with respect to the activities at the Site. Specifically, Respondents point to Section 360-7.1(b)(1), which provides that certain C&D debris landfills are exempt from Part 360 permitting requirements. In pertinent part, the exemption applies to landfills where the material disposed of consists of "recognizable uncontaminated concrete and concrete products (including steel or fiberglass reinforcing rods that are embedded in the concrete), asphalt pavement, brick, glass, soil and rock," (6 NYCRR § 360-7.1(b)(1)(ii)), and provided that the facility is operational "only between the hours of sunrise and sunset, and (if the allowable waste comes from an off-site source) no fee or other form of consideration is required for the privilege of using the facility for disposal purposes." 6 NYCRR § 360-7.1(b)(1). Respondents have acknowledged that they were "receiving" C&D debris at the Site. Bonsignore Affirmation in Reply, at ¶ 21.

Respondents maintain that their activities fall within this provision of the solid waste regulations, and assert that any non-exempt material observed at the Site was there as a result of cleanup operations, and was properly disposed of at an off-site location. Respondents assert further that all of the material facts alleged in the amended complaint, and submitted in Department Staff's motion, are in dispute. Accordingly, Respondents argue that Department Staff has not met the burden which would support granting a motion for summary order.

In support of the motion for summary order, Department Staff submitted affidavits from Department personnel, including Environmental Conservation Officer ("ECO") Scott M. Daly (hereinafter "Daly Aff."); environmental geologist Andrew D. Lent (hereinafter "Lent Aff."); engineering geologist Steven Parisio (hereinafter "Parisio Aff."), and regional solid waste engineer Paul John (hereinafter "John Aff.").(4) Respondents submitted affidavits from Joseph Attonito, an officer of Fullerton and Juda (hereinafter "J. Attonito Aff."); Thomas Attonito, president of Whitney Trucking (hereinafter "T. Attonito Aff."); Richard Galli, an engineer and owner of an environmental consulting firm (hereinafter "Galli Aff."); Frank Dirienzo, whose family formerly owned the Site, and who worked at the Site subsequent to the sale (hereinafter "Dirienzo Aff."); Joanne Uzzi, president of Juda (hereinafter "Uzzi Aff."), and Nicholas Paniccia, an employee of Whitney Trucking (hereinafter "Paniccia Aff."), as well as the Affidavit in Opposition of Michele Marianna Bonsignore, counsel for Respondents (hereinafter "Bonsignore Aff.")

According to Respondents, Respondent Fullerton Avenue Land Development, Ltd. owns the property at 300 Fullerton Avenue, where the Site is located. Bonsignore Aff. at ¶ 3. Respondent Juda Construction, Ltd. ("Juda") owns construction machinery and equipment. Bonsignore Aff. at ¶ 4. Respondent Joseph Attonito is an officer of Fullerton and Juda. Bonsignore Aff. at ¶ 5.

Frank Dirienzo's affidavit states that he was the quarry manager at the Site from 1990 until it was sold to Fullerton, and that he worked at the Site in other capacities for over thirty years. Dirienzo Aff. at ¶ 1. Fullerton purchased the property in March of 2000. T. Attonito Aff. at ¶ 9. Mr. Dirienzo stated that "various types of debris were placed on and left on the property . . . including tires, wood, tree branches, pieces of sheet metal, sheet rock and other assorted debris." Dirienzo Aff. at ¶ 2. According to Mr. Dirienzo, "[t]his was all left on the property when it was sold to Fullerton." Id. The affidavit goes on to state that large piles of rock from the quarry, amounting to about 20,000 yards of fill, were left on the property as well. Dirienzo Aff. at ¶ 3. The Dirienzo Affidavit includes photographs of the debris and the rock piles at the Site. Dirienzo Aff. at ¶¶ 2 and 3.

In their cross-motion, Respondents provide copies of a building permit issued to Fullerton by the City of Yonkers on April 18, 2000, as well as a demolition permit issued by the City to Fullerton on May 9, 2000. Bonsignore Aff. at ¶ 3, Respondents' Exhibits 1 and 2. The building permit's special conditions stated that only Whitney Trucking would be allowed to transport material to the Site, and provided further that the only acceptable fill would consist of "uncontaminated, recognizable, concrete, masonry, dirt and rock debris."(5) Respondents' Exh. 1. Finally, the special conditions prohibited Fullerton from charging a fee for the use of the facility. Id.

The Respondents assert that, after obtaining the necessary permits to do so, Fullerton began filling and grading the Site, and also removed debris and refuse that had accumulated on the property during the previous sixty years, when the Site was an active rock quarry. Respondents contracted with Saw Mill Recovery to provide containers for the debris, and to remove the debris from the Site. Bonsignore Aff. at ¶ 8. As part of their opposition to the motion, Respondents provided copies of the invoices from Saw Mill Recovery. Id.; Respondents' Exh. 4. Respondents also provided a copy of the City of Yonkers building inspector's daily log, which indicated that only filling and grading were taking place on the Site. Bonsignore Aff. at ¶ 11; Respondents' Exh. 6. Respondents also point out that the log does not reflect any violations of the special conditions of the building permit. Id. Respondents maintain that Whitney Trucking ceased bringing material to the Site in May of 2000. Bonsignore Aff. at ¶ 13.

The Daly Affidavit states that on June 15, 2000, ECO Daly responded to a complaint by a neighboring business that trucks leaving the Site were depositing dirt and other material in the roadway. Daly Aff. at ¶ 4. On that same day, ECO Daly inspected the Site at 5:30 in the evening, accompanied by Investigator Thomas Moran, of the Westchester County District Attorney's office. Daly Aff. at ¶ 5. Attached to the Daly Affidavit are pictures that ECO Daly states were taken by Investigator Moran at that time. According to ECO Daly, "[a]n employee at the site granted us access to the property, which appeared to be an old rock quarry." Id.

The Daly Affidavit states that the officer observed workers repairing a backhoe, several trucks bearing the lettering "Whitney Trucking," and "two large screener/processing machines," one bearing the lettering "Extec Turbo." Daly Aff. at ¶ 6. ECO Daly also observed "a large pile of non-exempt construction and demolition material waiting to be processed. This pile consisted of soil, brick, wire, wood, nails, plastic bags, metal, tile, glass, cloth fabric, cardboard, dimensional lumber, rebar, and asphalt. . . . at the end of the screener was a large pile of processed material which had come from the screener." Id. ECO Daly states further that he checked with the Environmental Permits office in New Paltz for any permits on file for the location, and that there were no such permits for the property at 300 Fullerton Avenue, or for Whitney Construction. Daly Aff. at ¶ 7. Finally, ECO Daly states that he and other Department personnel attempted to gain access to the Site on July 12, 2000, at 10:00 in the morning, and was denied access "by Thomas Attonito and Michelle Bonsignore, counsel for Whitney Trucking." Daly Aff. at ¶ 8.

On July 13, 2000, the City of Yonkers' Department of Housing and Buildings issued a stop work order. As a result, any further activities at the Site have been in abeyance since that time. Respondents appealed the stop work order to the City's Zoning Board of Appeals. When that appeal was unsuccessful, Respondents brought a proceeding pursuant to CPLR Article 78. On September 4, 2001, the court denied the petition. Fullerton Ave. Land Devel., Ltd., et al. v. Zoning Bd. of Appeals of Yonkers, et al., Decision, Order and Judgment, Index No. 01-05708 (Sup. Ct., Westchester Cty., 2001); appeal dismissed, 292 A.D.2d 607 (2d Dept. 2002).

In their opposition, Respondents argue that ECO Daly did not receive permission, from anyone in authority, to enter the Site on June 12, and therefore, his actions constituted trespassing and an illegal search. Further, the Respondents point out that the Daly Affidavit does not state that the Officer actually witnessed C & D debris being processed. Respondents also object to any consideration of the pictures attached to the Affidavit, which, they argue, have not been authenticated. According to the Affidavit of Joseph Attonito, ECO Daly was mistaken as to the type of trucks present on the Site, as well as the presence of two screeners on the property (Mr. Attonito states that only the "Extec Turbo" screener was present). J. Attonito Aff. at ¶¶ 6 and 7. Mr. Attonito states further that Respondents "did not bring or cause to be brought to the property any of the items listed by ECO Daly" ( J. Attonito Aff. at ¶ 8) and that the Respondents were cleaning the property and placing the debris in a dumpster, which would account for ECO Daly's observation of a pile of material situated next to a dumpster. J. Attonito Aff. at ¶ 9.

The Lent Affidavit states that, on July 12, 2000, Mr. Lent observed the activities at the Site from beyond the property line. Lent Aff. at ¶ 7. Attached to the Affidavit is a copy of Mr. Lent's inspection report. Mr. Lent states that he "observed what appeared to be two large pieces of machinery used to process soil, rock and other debris. I observed operators at the site placing sorted soil-like debris in an old quarry on the premises . . . and placing rock and some of the soil-like material into the processing machinery." Lent Aff. at ¶ 9. The Lent Affidavit states that, on July 14, 2000, he sent a Notice of Violation ("NOV") to Fullerton Land Development, notifying Fullerton that the site was a construction and demolition debris facility as defined in 6 NYCRR Section 360-1.2(b)(39), and that Fullerton was in violation of 6 NYCRR 360-16.1(c) as a result of its unpermitted operation of a solid waste management facility. Lent Aff. at ¶ 11.

The Lent Affidavit goes on to state that, in the NOV, Mr. Lent identified two pieces of machinery as a screener and a tub grinder, and that he later learned that the tub grinder was, in fact, a rock crusher, but that this error "has no bearing on the determination that the Respondent was operating a solid waste management facility without a permit or registration." Lent Aff. at ¶ 12. The Lent Affidavit also includes photographs taken of the Site.

The Respondents contend that the Lent Affidavit demonstrates that Mr. Lent did not know the composition of the material being placed into the machinery at the Site, nor did he know what the purpose of the machinery was. According to Joseph Attonito's affidavit, "a rock crusher reduces the size of the rock but does not make it unrecognizable . . . a tub grinder produces C & D." J. Attonito Aff. at ¶ 13. According to the Affidavit of Nicholas Paniccia, the crusher was used for only ten days during the period from June 9 through July 12, 2000, and processed only the piles of material left on the Site by the previous owners, not material brought to the Site by Whitney Trucking. Paniccia Aff. at ¶ 3. The Dirienzo Affidavit states that "the only material used in the rock crusher was the 20,000 yards of fill left there from when the quarry was operating . . . dumpsters were brought onto the property in order to carry away the debris left there by previous owners . . . none of this material was ever used by Fullerton. It was hauled away. Fullerton also demolished three small buildings left of the property. All of this material had to be cleaned and hauled away also." Dirienzo Aff. at ¶¶ 6, 8, and 9.

Department Staff also submitted the Affidavit of Steven Parisio in support of the motion for order without hearing. Mr. Parisio stated that his review of the Department's files indicated that, on July 19, 2000, the Department received an application to register a solid waste management located at 300 Fullerton Avenue in Yonkers. Parisio Aff. at ¶ 6, and Exh. A. The application was for a processing facility, pursuant to Section 360-16.1(d)(1)(i). A revised application, changing the name of the facility operator from Thomas Attonito to Juda Construction, was submitted on July 21, 2000. Parisio Aff. at ¶ 6, Exh. B.

Mr. Parisio also inspected the Site on July 28, 2000, after the stop work order was issued. This inspection took place pursuant to a search warrant, issued by the Westchester County District Attorney's office. Parisio Aff. at ¶ 8. Several photographs, including two aerial views, are attached to the Parisio Affidavit. Mr. Parisio collected samples, including samples from a test pit located in fill material in the area of the quarry pit. Parisio Aff. at ¶ 16. The samples were analyzed, and based upon the analysis, Mr. Parisio concluded that the Respondents were in violation of Section 360-16.1(c), for operating a C&D processing facility without a permit. Parisio Aff. at ¶ 25D. Mr. Parisio stated further that the material observed was no longer "recognizable," within the meaning of 6 NYCRR Section 360-7.1(c)(3), and thus could not be considered exempt. Parisio Aff. at ¶ 25B.

The Respondents raise a number of objections to Mr. Parisio's affidavit. First, according to the affidavit of Joanne Uzzi, Juda's president, on June 12, 2000, an application for registration of the rock crusher was submitted to the Department's Region 3 office. Uzzi Aff. at ¶ 6. Respondents' exhibits include a copy of the registration application, which indicates a different address and company name, and proof of delivery. Respondents' Exhs. 7 and 8. Respondents also dispute the reliability of the testing methodology employed with respect to the samples Mr. Parisio gathered. Richard Galli, the Respondents' environmental consultant, states in his affidavit that the methodology Mr. Parisio used is not generally accepted within the scientific community, has not been published in DEC guidance, and in fact is not in use in any other DEC region. Galli Aff. at ¶¶ 7 through 14. Mr. Galli also observes that Mr. Parisio's methodology was rejected by the White Plains City Court in a decision on a pre-trial motion. Galli Aff. at ¶ 10, Respondents' Exhs. 13 and 17.

Discussion

Given the material facts in dispute concerning the character of the material present at the Site, its handling, and its origin, it is not possible to resolve this matter on a motion for summary order. The evidence submitted by Department Staff is not sufficient to establish, as a matter of law, that the Respondents were operating an unpermitted C&D processing facility. The conclusions drawn by Department Staff's witnesses cannot overcome the presumption in favor of the Respondents on a motion for summary relief, particularly where the factual basis for those conclusions is disputable.

For example, various of the affiants qualify the observations made in their affidavits, and in some instances, the evidence put forward lacks a proper foundation. In addition, the photographs submitted by Department Staff are not explained in any detail in the affidavits, nor are they correlated to, for instance, a diagram of the Site which would indicate the location depicted. Without further elaboration, it is not possible to conclude, based upon the photographs, that the material shown is non-exempt C&D, or make a determination as to the activities allegedly taking place on the Site. In addition, both Department Staff and the Respondents have raised a number of evidentiary challenges to certain of the affidavits and exhibits submitted, including issues of credibility and the weight to be afforded to the evidence adduced. Credibility issues, in general, are outside the scope of a motion for summary relief. See State v. Arthur L. Moon, Inc., 228 A.D.2d 826, 828 (3rd Dept. 1996), leave to appeal dismissed, 89 N.Y.2d 861 (1996). The contradictory assertions in the record provide no basis to grant summary judgment in favor of Respondents or Department Staff. Accordingly, both motions are denied.

Finally, Department Staff's motion for a ruling holding Joseph Attonito personally liable for the violations alleged in the amended complaint must be deferred pending a hearing with respect to the facts surrounding those violations. Department Staff allege that Joseph Attonito must be held personally accountable, due to his active participation in actions that resulted in violations of the solid waste laws and regulations, or merely his knowledge of the same. Hesse Affirmation in Support, at ¶ 26. The maxim that "[v]eil piercing is a fact-laden claim that is not well-suited for summary judgment resolution," applies to this case, where the relationship between the Respondents, as well as their respective liability, if any, must await further factual development at a hearing. First Bank of Americas v. Motor Car Funding, Inc., 257 A.D.2d 287, 294 (1st Dept. 1999)(citations omitted). Thus, on this record, the inquiry into Joseph Attonito's individual liability, to the extent the Department Staff seek to pierce the corporate veil, must be undertaken as part of a hearing.

Moreover, Department Staff's argument that individual liability may be imposed even without piercing the corporate veil relies upon cases that either were based upon a more developed record than that available in this case, or are contextually dissimilar. See Matter of Liberty Oil Co., et al., Decision and Order, 1997 WL 809896 (Dec. 23, 1997) (motion for order without hearing denied; following a period of discovery and motion practice, motion for summary order granted and hearing followed); Matter of Lillian Costanzo, et al., Decision and Order, 1988 WL 158294 (Feb. 4, 1988) (hearing held); Jackson's Marina v. Jorling, 193 A.D.2d 863 (3rd Dept. 1993) (hearing held). Staff also cites New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985), in which the Second Circuit upheld a grant of summary judgment in favor of the plaintiff State of New York with respect to the allegation that an individual defendant was liable for response costs at an inactive hazardous waste site as an "operator" within the meaning of the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9607. 759 F.2d at 1052. The court held further that, without piercing the corporate veil, the defendant could be held liable for abatement of a public nuisance, reasoning that the imposition of liability was particularly appropriate in the public nuisance context, where joint and several liability is imposed upon every party that participates in the maintenance of the nuisance, and where it was "beyond dispute" that the defendant's actions supported this result. Id. Such considerations are less compelling here, particularly given the factual disputes that exist. A hearing should be held to consider Department Staff's allegations.

Second Cause of Action - Refusal to Consent to Inspection

With respect to the second cause of action, Department Staff maintain that the Respondents refused to allow Department personnel access to the Site, in violation of 6 NYCRR Section 360-1.4(b). Section 360-1.4(b) of 6 NYCRR authorizes Department Staff to

enter and inspect a solid waste management facility . . . at all reasonable times, locations, and hours, whether announced or unannounced, for the purpose of ascertaining compliance or noncompliance with a permit, the ECL, and this Title. The construction or operation of a solid waste management facility in this State is deemed to constitute consent to such inspection.

As noted earlier, according to affidavits submitted in support of Department Staff's motion, an environmental conservation officer and a Department geologist were denied access by Respondents' counsel on July 12, 2000, when they attempted to inspect the Site.

Respondents argue that the Site is not a "solid waste management facility," and thus, the Site is not subject to regulation pursuant to this provision. This argument fails in light of the Respondents' assertions, in opposition to the Department Staff's motion, that the Site is a C&D debris landfill regulated under Subpart 360-7. The exemption from Part 360 regulations set forth under that Subpart is only from the permitting, not the general, requirements, of Part 360. 6 NYCRR § 360-7.1(b)(1). See Matter of Krevolin Construction, Inc., et al., Hearing Report and Order, 1991 WL 161021, *9 (Apr. 20, 1991) (noting the environmentally protective intent of the regulations, with reference to 6 NYCRR § 360-1.4(a)(1), which states that every solid waste management facility in the State is subject to every applicable requirement in Part 360, subject to a demonstration that the facility is clearly exempt; even if respondents did nothing more than own the site where solid waste was placed respondents would be required to obtain a permit or prove some exemption).(6)

Moreover, other Part 360 provisions do not support the Respondents' arguments. The terms "landfill" and "construction and demolition debris processing facility" are included in the definition of "solid waste management facility." 6 NYCRR § 360-1.2(b)(158); see State v. Della Villa, 186 Misc. 2d 490, 496 (Sup. Ct., Schenectady Cty. 2000) (concrete, masonry materials, soil, rock and wood deposited at site and later bulldozed into more compact form were, "by their very nature," solid waste). Whether the Respondents' activities fall within the definition of a C&D "processing facility," regulated under Subpart 360-16, as Department Staff allege, or a C&D "landfill," regulated under Subpart 360-7, as the Respondents maintain, the Site would be a solid waste management facility, as defined in the Part 360 regulations. Thus, the Respondents are subject to the enforcement, inspection and reporting requirements of Section 360-1.4, and are deemed to have consented to inspection of the Site by Department Staff at "reasonable times, locations and hours."

Section 360-1.4(b) goes on to provide that

[t]he refusal to consent to such inspection, established after an opportunity for a hearing, shall result in revocation of any and all permits issued by the department under this Part pertaining to that facility as well as any other penalties the commissioner may impose under the circumstances.

6 NYCRR § 360-1.4(b). In the context of a permit revocation, the hearing is limited to considering "whether the permittee was given sufficient warning in clear or unequivocal language before the refusal, that the refusal could result in revocation of those permits; and whether the permittee refused to consent to the inspection." 6 NYCRR §§ 360-1.4(b)(1) and (2). The Respondents maintain that this provision provides an opportunity for a hearing on the refusal to consent to the inspection. Department Staff argue that a plain reading of the regulation compels the conclusion that

mention of a hearing in the above provision refers to a permit revocation hearing. Thus, it applies only when the Department seeks to revoke a permit based on a permittee's refusal to grant access to an inspection. As the Respondents herein did not have any DEC permits for operating the facility, the provision for a revocation hearing does not apply.

Hesse Affirmation in Opposition, at ¶ 37 (emphasis in original).

Department Staff's position is not supported by the wording of the regulation. Section 360-1.4(b) provides for two enforcement mechanisms: permit revocation, "as well as any other penalties the commissioner may impose under the circumstances." Department Staff are correct that the subsection that sets forth the issues to be considered at the hearing (i.e., "whether the permittee was given sufficient warning . . . that the refusal could result in revocation of those permits . . . .") would only apply to a respondent who actually held a permit. Nevertheless, given the language that allows for penalties to be imposed, the regulation cannot be read to foreclose Respondents' right to a hearing because they do not hold a Department-issued permit. Courts have held, in analogous circumstances, that where a legislative scheme provides for administrative inspections, judicial review must take place prior to any enforcement for non-compliance. See Camara v. Municipal Court, 387 U.S. 523 (1967) (administrative searches fall within the purview of the Fourth Amendment); Finn's Liquor Shop, Inc. v. State Liquor Auth., 24 N.Y.2d 647, 654 (1969) ("State agencies, charged with purely administrative responsibilities, just as those engaged in the enforcement of the criminal law, must conduct their investigative and enforcement functions in compliance with constitutional requirements, and, more particularly, within the confines of the Fourth Amendment"). The Respondents should be afforded an opportunity for a hearing as to the circumstances of the refusal; thus, this cause of action cannot be resolved on a motion for order without hearing.

Order Establishing Uncontroverted Facts

The following facts are uncontroverted. Pursuant to 6 NYCRR Section 622.12(e), it is deemed and ordered that the following facts are established for all purposes in this action:

  • Respondent Fullerton Land Development, Ltd. owns the property at 300 Fullerton Avenue, Yonkers, New York.
  • Respondent Joseph Attonito is an officer of Fullerton Land Development, Ltd. and Juda Construction, Ltd.

Conclusion and Order

Department Staff's motion for summary order, and Respondents' cross-motion for summary judgment, are denied. Within twenty days of receipt of this ruling, counsel for Department Staff shall identify for me in writing the dates on which Respondent and Department Staff are available for the hearing, as well as an agreed-upon hearing venue. I will confirm the hearing date, place, and time in writing.

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

TO: Jennifer David Hesse, Esq.
NYS Department of Environmental Conservation
Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

Michele Marianna Bonsignore, Esq.
Attorney for Respondents, JUDA CONSTRUCTION LTD., FULLERTON
AVENUE LAND DEVELOPMENT, LTD. and JOSEPH ATTONITO
636 Saw Mill River Road
Yonkers, New York 10710

1 Section 360-1.2(b)(38) defines construction and demolition debris, in pertinent part, as follows:

(38)Construction and demolition (C&D) debris means uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures and roads; and uncontaminated solid waste resulting from land clearing. Such waste includes, but is not limited to bricks, concrete and other masonry materials, soil, rock, wood (including painted, treated and coated wood and wood products), land clearing debris, wall coverings, plaster, drywall, plumbing fixtures, nonasbestos insulation, roofing shingles and other roof coverings, asphaltic pavement, glass . . ..

2 A "construction and demolition debris processing facility" is defined as "a processing facility that receives and processes construction and demolition debris by any means." 6 NYCRR Section 360-1.2(b)(39).

3 Section 360-16.1(d) provides that certain solid waste management facilities are subject to the registration requirements of Section 360-1.8(h), rather than the permit requirements, including:

  1. a facility receiving and processing only recognizable uncontaminated concrete and other masonry waste (including steel or fiberglass reinforcing embedded in concrete), asphalt pavement, brick, soil or rock that has not been in contact with a spill from a petroleum product, hazardous waste, or industrial waste, and that is not commingled with any other solid waste;
  2. a facility receiving and processing only uncontaminated and unadulterated wood; or
  3. a combination of the facilities listed in subdivision (b) and subparagraphs (i) and (ii) of this Subpart provided the materials of the subdivision and each subparagraph are processed and stored separately.

4 Department Staff's motion indicates that Mr. John's Affidavit was offered "simply to provide guidance in determining the appropriate penalty." Hesse Affirmation in Opposition, at ¶ 65. Consequently, Mr. John's affidavit is not discussed further in this ruling, because the Department's motion is denied.

5 Respondents' exhibits include copies of pages from a logbook, including pages entitled "Whitney Trucking" and other pages entitled "Fullerton Avenue Daily Truck Log," where "Whitney Trucking" appears in the notations under the column headed "Truck Company/License Plate #."

6 The history of the regulation lends further support to this interpretation. The October 9, 1993 amendments to the Part 360 regulations added the word "permit" before the word "requirements" in Section 360-7.1(b)(1), presumably to clarify this question. In addition, ECL Section 3-0301(2)(g) gives the Department the power to "[e]nter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with any law, rule or regulation which may be promulgated pursuant to this chapter."

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