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Khrisat, Majid - Order, December 29, 2003

Order, December 29, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of
Article 17 of the Environmental Conservation
Law and Parts 612-614 of Title 6 of the New York
Compilation of Codes, Rules and Regulations by:

MAJID KHRISAT,
Respondent.

ORDER

DEC File Number 3-488690

WHEREAS:

  1. Pursuant to section 622.12 of title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR"), staff of the New York State Department of Environmental Conservation ("Department") served a motion for order without hearing upon respondent Majid Khrisat on September 8, 2003. The motion was supported by (1) an order on consent dated February 26, 2001 ("Consent Order"); (2) an affidavit in support of the motion dated September 5, 2003 by Elissa Armater, a legal assistant in the Department's Division of Environmental Enforcement; (3) a letter dated February 21, 2002 from Senior Attorney Scott A. Herron to respondent's counsel Richard I. Goldsand; and (4) an affirmation in support of motion for summary order by Mr. Herron.
  2. The motion for order without hearing alleged that respondent violated article 71 of the Environmental Conservation Law (ECL) by failing to pay the civil penalty set forth in the Consent Order signed by respondent. The Consent Order settled a number of violations of parts 612-614 of 6 NYCRR involving respondent's operation of a bulk storage petroleum facility located at Route 6 and Star Ridge Road, Brewster, New York.
  3. A copy of the motion and supporting papers were filed with the Office of Hearings and Mediation Services, and the matter was assigned to Administrative Law Judge (ALJ) Helene G. Goldberger. Respondent filed an affidavit in opposition to the motion dated September 24, 2003.
  4. A copy of the ALJ's ruling and report on motion for order without hearing is attached, which I hereby adopt as my own..

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

  1. Pursuant to 6 NYCRR section 622.12, Department staff's motion for order without hearing is granted and respondent is found to have to have violated the terms of the Order on Consent dated February 26, 2001 by failing to pay a penalty of Five Thousand Dollars.
  2. Respondent is assessed a civil penalty of Five Thousand Dollars which is due and payable within thirty (30) days of service of a copy of this order upon respondent.
  3. All communications from respondent to the Department in this matter, including the payment of penalties, shall be made to Scott A. Herron, Senior Attorney, NYSDEC-DEE, 625 Broadway, Albany, New York 12233-5550.
  4. The provisions, terms and conditions of this order shall bind respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION

/s/
By: Erin M. Crotty, Commissioner

Albany, New York
December 29, 2003

TO: By Certified Mail
Richard I. Goldsand, Esq.
864 Route 22
Brewster, New York 10509

Majid Khrisat
c/o Maximum Deli
143 Main Street
Brewster, New York 10509

By Office Delivery
Scott A. Herron, Esq.
Senior Attorney
NYSDEC - DEE
625 Broadway
Albany, New York 12233-5500

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

-of-

Alleged Violations of Article 17 of the Environmental
Conservation Law and Title 6 Part 612-614 of the New York
Compilation of Codes, Rules and Regulations by:

MAJID KHRISAT,
Respondent

DEC File Number 3-488690

Ruling and Report on Motion for Order Without Hearing

__________/s/______________
Helene G. Goldberger
Administrative Law Judge

October 15, 2003

Proceedings

On September 8, 2003, the staff of the New York State Department of Environmental Conservation (DEC or Department) commenced this enforcement proceeding by motion for summary order pursuant to Part 622.12 of Title 6 of the New York Compilation of Codes Rules and Regulations (6 NYCRR). In this motion, staff contends that the respondent, Majid Khrisat, failed to comply with the terms of a February 2001 Order on Consent that required the payment of a civil penalty of ten thousand dollars for the alleged violations of the bulk petroleum storage tank regulations pursuant to Parts 612-614 of 6 NYCRR. Five thousand dollars of this amount was suspended pending compliance with the terms of the Order. Staff seeks payment of ten thousand dollars and twenty-five thousand dollars for each day that the respondent fails to comply with the requirements of the Order.

In support of its motion, staff includes: (1) the 2001 Order on Consent; (2) an affidavit in support of the motion dated September 5, 2003 by Elissa Armater, a legal assistant in DEC's Division of Environmental Enforcement in which Ms. Armater states that the civil penalty was never received by DEC; (3) a letter dated February 21, 2002 from Senior Attorney Scott Herron to respondent's counsel Richard Goldsand stating that the penalty had not been received by DEC and that the suspended portion and further relief would be sought if the amount was not paid within 15 days from the date of the letter; (4) an affirmation by Mr. Herron.

The motion papers did not indicate whether the respondent had complied with the other directives in the Order. As the Administrative Law Judge (ALJ) assigned to the matter, by letter dated September 10, 2003 I wrote to DEC counsel, on notice to the respondent, inquiring whether or not these requirements had been met. By letter dated October 15, 2003, Senior Attorney Scott A. Herron advised me that the tanks had been removed although DEC staff had no knowledge as to whether other requirements of the Order that would have preceded tank removal had been met. In addition, Mr. Herron sent me a copy of the respondent's reply to staff's motion which had not been filed with the Office of Hearings and Mediation Services.

Respondent provides in an affidavit in opposition dated September 24, 2003 that he signed the Order as an employee of the ATI gas station located at Route 6 and Star Ridge Road in Brewster, New York. He alleges that he is not financially able to pay the fine as he has a bank balance of $300.00. He states that it was his understanding that his employer would pay the fine. Mr. Krisat also states that the gas station had been sold two years ago.

Facts

The respondent, Majid Khrisat, as operator of a petroleum bulk storage facility located at Route 6 and Star Ridge Road, Brewster, New York signed an Order on Consent on January 11, 2001 to resolve a number of violations with respect to Parts 612-614 of 6 NYCRR. Included in these violations, respondent failed to maintain inventory records for underground storage tanks, he failed to maintain leak monitoring systems for the tanks, and he failed to maintain a secondary containment system for underground storage tanks.

The compliance schedule required the respondent to provide certification of a leak monitoring system, a secondary containment system, installation of overfill prevention equipment and corrosion protection or to close the tanks. The tanks were removed.

The Order, which was signed by Commissioner Cahill on February 26, 2001, also required payment of ten thousand dollars with five thousand suspended pending compliance with the terms of the Order.

The respondent has not paid the penalty.

DISCUSSION and CONCLUSION

The respondent did not contest staff's claim that he did not pay the civil penalty. His defense is that he was only a manager of the facility and signed the order believing that his employer would pay the fine. He states in his affidavit, without any support, that he cannot afford the penalty. Mr. Khrisat does not deny that he was the operator of the facility and therefore responsible for compliance with the applicable environmental regulations. Moreover, he did sign the Consent Order. His statements regarding his ability to pay are conclusory and cannot defeat staff's motion.

However, because the staff has reported that the tanks were removed from the facility, the penalty requested is too severe. Accordingly, I recommend that staff's motion for summary order be granted but only to the extent of ordering a penalty of five thousand dollars.

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