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Kalmanson, Kenneth - Order, July 27, 1993

Order, July 27, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York (6 NYCRR) Sections 211.2, 215.2 and 215.3

- by -

KENNETH W. KALMANSON
RESPONDENT

ORDER
DEC No. R3-2689/9212

WHEREAS:

  1. As provided by ECL Article 71 and 6 NYCRR Part 622, Administrative Law Judge Daniel P. O'Connell presided over an enforcement hearing at the Department's Region 3 Offices on April 21, 1993 to consider whether the Respondent violated 6 NYCRR 211.2 (Air pollution prohibited), 215.2 (Prohibitions) and 215.3 (Restricted burning). Carolyn Olsen-Kelly, Legal Intern, and Jonah Triebwasser, Esq., Senior Attorney, Region 3, appeared for the Department. The Respondent, Kenneth W. Kalmanson, D.D.S., appeared pro se.
  2. The attached Hearing Report submitted by Administrative Law Judge O'Connell is accepted as the decision in this matter subject to my comments below.
  3. The Respondent violated 211.2 on March 27, 1992 and again on May 21, 1992 by burning an open fire on property located on Route 209 in the Town of Mamakating, Sullivan County (the Site) that emitted air contaminants that were injurious to human health, plant life and property.
  4. The Respondent violated 215.2 on March 27, 1992 and again on May 21, 1992 by burning rubbish, as that term is defined in 215.1(e), on the Site without a permit.
  5. The Respondent violated Condition No. 8 of the Restricted Burning Permit issued pursuant to 215.3 when he left the fire on the Site unattended from May 21, 1992 to May 22, 1992.
  6. In determining the appropriate relief, I note the Respondent knew the regulations require permits and specifically prohibit burning rubbish, as that term is defined in 215.1(e). Furthermore, even after the Respondent obtained a permit, he did not comply with its conditions. Finally, the smoke emitted from the fires on March 27, 1992 and May 21, 1992, and the Respondent's failure to watch the fire from May 21 to May 22, 1992 created a serious threat to public safety and property.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The Respondent is enjoined from burning any rubbish on the Site.
  2. Pursuant to ECL 71-2103, the Respondent, Kenneth W. Kalmanson, is assessed a civil penalty of EIGHT HUNDRED DOLLARS ($800) for each of the five violations identified above. The total civil penalty is, therefore, FOUR THOUSAND DOLLARS ($4,000).
  3. The total civil penalty, FOUR THOUSAND DOLLARS ($4,000), shall be due and payable to the Department within 60 days after service of a conformed copy of this Order on the Respondent.
  4. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 3 Director, NYSDEC, 21 South Putt Corners Road, New Paltz, New York 12561.
  5. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: Albany, New York
July 27, 1993

To: Kenneth W. Kalmanson, D.D.S.
via certified mail
397 Palmer Avenue
Mamaroneck, New York 10543

Jonah Triebwasser, Esq.
Senior Attorney
NYSDEC-Region 3
21 South Putt Corners Road
New Paltz, New York 12561

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Alleged Violations of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York Sections 211.2, 215.2 and 215.3

by

KENNETH W. KALMANSON
397 Palmer Avenue
Mamaroneck, New York 10543

RESPONDENT

DEC No.
R3-2689/9212

HEARING REPORT

- by -

_____________________________
Daniel P. O'Connell
Administrative Law Judge

Summary

In a Notice of Hearing and Complaint dated March 26, 1993, the Region 3 Staff of the Department of Environmental Conservation alleged Kenneth W. Kalmanson let an open fire burn on a site in the Town of Mamakating (Sullivan County) in violation of various provisions of the air regulations. This Hearing Report concludes the Respondent violated Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) 211.2 (Air pollution prohibited), 215.2 (Prohibitions) and conditions of a permit issued pursuant to 215.3 (Restricted burning), and recommends a civil penalty of $4,000.

Proceedings

The Region 3 Staff of the Department of Environmental Conservation (the Department) duly served a Notice of Hearing and Complaint, dated March 26, 1993, on the Respondent, Kenneth W. Kalmanson. The Complaint alleged the Respondent violated 6 NYCRR 211.2 (Air pollution prohibited), 215.2 (Prohibitions) and conditions of a permit issued pursuant to 215.3 (Restricted burning) by burning an open fire on his property on March 27, 1992 and May 21, 1992. Pursuant to ECL Article 71 and 6 NYCRR Part 622, Administrative Law Judge Daniel P. O'Connell presided over an enforcement hearing at the Department's Region 3 Offices on April 21, 1993 to consider the charges alleged against the Respondent. The record of the hearing closed on May 10, 1993 after receiving the stenographic transcript.

Carolyn Olsen-Kelly, Legal Intern, and Jonah Triebwasser, Esq., Senior Attorney, Region 3, appeared for the Department. The Department's witnesses included Forest Ranger Robert Barstow and Forest Ranger David Meade.

The Respondent, Kenneth W. Kalmanson, D.D.S., appeared pro se. Dr. Kalmanson did not testify on his behalf or call any other witnesses as part of his direct case. The Respondent cross-examined the Department's witnesses and presented argument.

The Department's Position

The Department alleged the Respondent violated:

  1. 211.2 on March 27, 1992 and May 21 1992 by burning an open fire on his property located on Route 209 in the Town of Mamakating, Sullivan County (the Site) which emitted air contaminants that were injurious or a nuisance;
  2. 215.2 on March 27, 1992 and May 21, 1992 by burning rubbish, as that term is defined in 215.1(e), on his property without a permit; and
  3. 215.2 and 215.3 on May 21, 1992 by not complying with certain conditions of the Restricted Burning Permit.

The Department requested an Order from the Commissioner enjoining the Respondent from burning rubbish on the Site and assessing a total civil penalty of $4,000.

The Respondent's Position

The Respondent argued the Commissioner should dismiss the Complaint because the charges alleged in the Complaint duplicate similar charges heard in Town Court. Furthermore, the Respondent denied owning property on Route 209 in the Town of Mamakating, Sullivan County (the Site). In his defense, the Respondent asserted he burned only wood in a barrel for a warming fire, and had a permit for the May 21, 1992 fire. The Respondent contended he did not leave the Site on May 21, 1992 until after the Wurtsboro Fire Department completely extinguished the fire.

Findings of Fact

  1. On March 27, 1992, there was a large pile of debris surrounded by trees and grass on a site located on Route 209 in the Town of Mamakating, Sullivan County (the Site). The debris came from demolished buildings that once stood on the Site, and consisted of wood, shingles, tar paper, plastics, mattresses, plastic bags, old furniture and linoleum. The testimony by DEC Forest Rangers Barstow and Meade about their observations of the Site on March 27 and May 21, 1992 is the evidence relied on for this Finding. Exhibit 4 was not relied on for any of the Findings of Fact stated herein.
  2. On March 27, 1992, Dr. Kalmanson, was at the Site, and set a portion of the large pile of debris on fire. Dr. Kalmanson did not have a permit from the Department to burn the debris. The fire emitted acrid, dark smoke and encroached upon the surrounding trees and grass.
  3. On May 15, 1992, Ranger Barstow issued Dr. Kalmanson a Restricted Burning Permit (the Permit). The Permit was effective from May 15, 1992 to July 15, 1992, and authorized the Respondent to burn small piles of wood on the Site.
  4. Condition No. 8 of the Permit states: "No fire shall be unattended at any time or left unattended until entirely extinguished."
  5. On May 21, 1992, the previously described pile of debris (Finding No. 1) was again on fire. On that date, the fire emitted acrid, dark smoke that spread across Route 209 reducing visibility on the highway.
  6. On May 21, 1992 at 1:30 P.M., Dr. Kalmanson was at the Site. DEC Forest Ranger David Meade and the Wurtsboro Fire Department were also at the Site. Members of the Wurtsboro Fire Department were attempting to extinguish the fire. As required by Condition No. 8 of the Permit, Ranger Meade instructed Dr. Kalmanson to stay at the Site until the fire was extinguished completely.
  7. Between 6 P.M. and 7 P.M. on May 21, 1992, the Wurtsboro Fire Department returned to the Site for the third time that day to extinguish the fire described above in Finding No. 6. At that time, Dr. Kalmanson was not at the Site.
  8. The Wurtsboro Fire Department was not able to extinguish the fire on the Site on May 21, 1992. The pile of debris on the Site continued to smolder on May 22, 1992.
  9. Before the events on March 27, 1992 and May 21, 1992 occurred, Dr. Kalmanson contacted DEC Forest Ranger Barstow about needing a permit to burn the abandoned buildings at the Site.

Discussion

Duplicate Charges

The Respondent argued the Commissioner should dismiss the Complaint because the charges alleged in the Complaint duplicate the charges heard in Town Court.

Forest Ranger Barstow served a summons on the Respondent charging him with a criminal violation of the ECL regarding the March 27, 1992 fire. The summons was returnable in Mamakating Town Court. The exact criminal charge alleged against the Respondent and the Court's final decision in the matter are not part of the record of this proceeding.

The Respondent did not show how the charges alleged in the Complaint duplicate the criminal charge heard in Town Court. For violations of ECL Article 19 and its implementing regulations, ECL Article 71 (Enforcement) specifically provides for both criminal and administrative proceedings. (See 71-2103 and 71-2105.) Furthermore, the Commissioner has determined a prior criminal prosecution of a Respondent does not prevent the Department from initiating an administrative enforcement action [Kurt Puff, DEC Case No. R3-1605-88/11, Commissioner's Order dated May 3, 1991].

The Respondent's Answer

At the hearing, each Party had an opportunity to present evidence, and to examine the opposing Party's evidence about the events that occurred at the Site on March 27 and May 21, 1992. ALJ O'Connell said the facts about the events would be based on the evidence. Evidence would include the sworn statements of witnesses, and the objects and documents offered during a witness' testimony. ALJ O'Connell explained the information and events discussed in the opening and closing statements are argument and not evidence of the matters asserted.

The Respondent offered an unsworn copy of his Answer to prove he did not violate the charges asserted in the Complaint. According to the Answer:

  1. The Respondent did not own property on Route 209 in the Town of Mamakating, Sullivan County (the Site);
  2. On March 27, 1992 the Respondent had a wood fire in a barrel for warmth at the Site; and
  3. On May 21, 1992, the Respondent had a permit for the fire at the Site, and left the Site after the Wurtsboro Fire Department extinguished the fire.

The Respondent stated he would testify that the statements asserted in the Answer were true. However, Dr. Kalmanson reconsidered and decided not to testify after ALJ O'Connell explained the Department would cross-examine the Respondent about the statements made in the Answer and any other testimony the Respondent might present.

By failing to testify and to be cross-examined by the Department, the Respondent did not support the claims asserted in the Answer. This, in connection with the Department's proof which is clear and uncontroverted, show the Respondent is not believable. The following examples further demonstrate why the Respondent is not credible.

Though the Respondent asserted he did not own the Site, Dr. Kalmanson objected when the Department offered Exhibit 4 because the Rangers did not have his permission to go on the property or a search warrant to gather the items collectively marked as Exhibit 4. Exhibit 4 includes partially burned items from the Site that Forest Rangers Barstow and Meade collected on May 29, 1992. The Department offered Exhibit 4 to show the Respondent burned things other than wood at the Site.

The Respondent's contention that the Rangers needed his permission to go on the Site infers the Respondent owns the Site. This inference contradicts Dr. Kalmanson's prior assertion that he does not own the Site or have any financial interest in the Site. The Respondent cannot contend the Rangers needed his permission to go on the Site to collect the items identified in Exhibit 4 if the Respondent does not own the Site.

Regardless of the veracity of the Respondent's contention, no weight was assigned to Exhibit 4. Exhibit 4 is redundant of what the Rangers' observed on March 27 and May 21, 1992, and the Rangers gathered the items collectively identified as Exhibit 4 over a week after the last violation allegedly occurred. The Rangers' observations of the Site on March 27 and May 21, 1992 served as the evidentiary basis for determining the nature of the debris on the Site.

Furthermore, ownership of the Site is not relevant to this proceeding. The regulatory provisions allegedly violated by the Respondent apply to "persons" as defined in 200.1(x) rather than exclusively to property owners. Consequently, there is no need to make findings about who owned the Site on March 27 and May 21, 1992.

The Respondent asserted he had a wood fire in a barrel for warmth. However, the Respondent did not demonstrate this assertion because the Respondent did not testify about what happened at the Site on March 27, 1992. Through the uncontroverted testimony of Forest Ranger Barstow, the Department proved there was a large pile of burning debris on the Site on March 27, 1992 rather than a wood fire in a barrel.

Finally, the Respondent argued he had a permit for the fire on May 21, 1992, and left the Site only after the Wurtsboro Fire Department completely extinguished the fire. Although the Respondent's argument implies he had a permit to burn the large pile of debris on the Site, the permit offered at the hearing authorized the Respondent to burn small piles of wood. The permit also required the Respondent to stay at the Site until the fire was extinguished completely.

Forest Ranger Meade testified when he was at the Site on May 21, 1992 the large pile of debris was burning, rather than small piles of wood as authorized by the permit. In addition, the Wurtsboro Fire Department responded to the Site at least three times on that date, and returned to the Site again on May 22, 1992 to find the pile of debris still smoldering. Ranger Meade testified Dr. Kalmanson was not at the Site on May 21, 1992 when, for the third time that day, Ranger Meade and the Wurtsboro Fire Department responded to the fire at the Site.

Liability

1. 211.2 (Air pollution prohibited)

Section 211.2 states "[n]o person shall cause or allow emission of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property. Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others."

On the Site, there was a large pile of debris from demolished buildings that once stood on the Site. Trees and grass surrounded the debris which consisted of wood, shingles, tar paper, plastics, mattresses, plastic bags, old furniture and linoleum. On March 27, 1992, Dr. Kalmanson set a portion of the large pile of debris on fire. The fire emitted acrid, dark smoke and encroached upon the surrounding trees and grass on the Site. Based on Ranger Barstow's testimony, such a condition is injurious to plant life. Consequently, the Respondent violated 211.2 on March 27, 1992 by burning an open fire that emitted air contaminants that were injurious or a nuisance.

Again on May 21, 1992, the previously described pile of debris was on fire. The fire emitted acrid, dark smoke that spread across Route 209 reducing visibility on the highway. This condition is injurious to human life and property. Consequently, the Respondent violated 211.2 on May 21, 1992 by burning an open fire that emitted air contaminants that were injurious or a nuisance.

2. 215.2 (Open Fires - Prohibitions)

Section 215.2 prohibits burning rubbish without a permit. Section 215.1(e) provides a definition of rubbish that includes solid waste material such as wood and demolition materials. Based on the description of the debris provided by the Forest Rangers, the large pile of debris on the Site is rubbish according to 215.2(e). On March 27, 1992, Dr. Kalmanson set the pile of rubbish on fire without having a permit from the Department. Consequently, the Respondent violated 215.2 on March 27, 1992 by burning rubbish on the Site without a permit.

Even after obtaining a Restricted Burning Permit (the Permit) from Ranger Barstow to burn small piles of wood at the Site, Dr. Kalmanson violated 215.2 for a second time when he set the pile of rubbish on fire on May 21, 1992.

3. 215.3 (Open Fires - Restricted Burning Permits)

Section 215.3 authorizes the Department to issue permits to burn open fires of wood from demolished structures. As provided by this provision, Ranger Barstow issued Dr. Kalmanson a Restricted Burning Permit on May 15, 1992 to burn small piles of wood at the Site. Condition No. 8 of the Permit prohibits leaving fires unattended until they are extinguished.

On May 21, 1992, Dr. Kalmanson was burning the pile of rubbish on the Site. During the day, the Wurtsboro Fire Department responded to the Site three times to extinguish the pile that continued to smolder through the night and during the next day (May 22, 1992). Dr. Kalmanson left the Site unattended during this period. Consequently, the Respondent violated Condition No. 8 of the Permit because he left the fire unattended from May 21, 1992 to May 22, 1992.

Civil Penalty

ECL 71-2103 authorizes civil penalties in the amount of not less than $250 and not more than $10,000 for each violation of ECL Article 19, its implementing regulations and permits issued pursuant thereto.

The Department requested a civil penalty of $4,000. The Department's request breaks down to $800 for each of the five demonstrated violations [$800 x 5 violations = $4,000].

The civil penalty requested by the Department correctly considers the equities associated with this case. The record shows the statements asserted in the Respondent's Answer are not true. The Respondent knew the regulations prohibit burning rubbish and require permits to burn wood from demolished structures. Though the Respondent eventually obtained a permit, he did not comply with its conditions. The smoke from the fires on March 27 and May 21, 1992 as well as the Respondent's failure to watch the fire from May 21 to May 22, 1992 seriously threatened public safety and property. Therefore, the Commissioner should assess the full amount of the requested civil penalty.

Conclusions

  1. The Respondent violated 211.2 on March 27, 1992 by burning an open fire that emitted air contaminants that were injurious to plant life.
  2. On May 21, 1992, the Respondent violated 211.2 a second time by burning an open fire that emitted air contaminants that were injurious to human health and property.
  3. The debris on the Site is rubbish as defined in 215.1(e).
  4. On March 27, 1992, the Respondent violated 215.2 by burning rubbish on the Site without a permit.
  5. On May 21, 1992, the Respondent violated 215.2 a second time by burning rubbish on the Site without a permit.
  6. The Respondent violated Condition No. 8 of the Restricted Burning Permit when he left the fire on the Site unattended from May 21, 1992 to May 22, 1992.

Recommendations

The Commissioner should enjoin the Respondent from burning any rubbish on the Site, and assess the Respondent a total civil penalty of $4,000.

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