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Mazzacano, Fred (Estate of) - Decision and Order, August 31, 1998

Decision and Order, August 31, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Alleged Violations of Article 17 of the Environmental Conservation Law
-by-
Estate of Fred R. Mazzacano,
Paul Apollonio, Gary Mazzacano,

Respondents

DEC File No. R4-1925-97-01

Decision and Order

WHEREAS:

  1. The Department staff has moved for an order without hearing pursuant to § 622.12 of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) before Administrative Law Judge (ALJ) Helene G. Goldberger.
  2. The attached report and rulings by ALJ Goldberger are adopted as my decision in this matter concerning violations of Article 17 of the Environmental Conservation Law (ECL) based upon respondents' discharge of untreated sewage effluent into a tributary of the Hudson River without a State Pollutant Discharge Elimination System (SPDES) permit.
  3. As stated in the report, due to the respondents' complete failure to present any facts in response to staff's motion, there are no triable issues of fact relating to the respondents' liability for discharging untreated sewage effluent into a tributary of the Hudson River in violation of ECL §§ 17-0701, 17-0505, 17-0803 and 6 NYCRR § 751.1.

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

  1. Respondents Estate of Fred Mazzacano, Executor Paul Apollonio, and Gary Mazzacano are found to have violated ECL §§ 17-0701, 17-0505, 17-0803, and 6 NYCRR § 751.1 for allowing the discharge of untreated sewage effluent from their facility, Stone Bridge Mobile Manor on Middle Road in the Town of Greenport, Columbia County, New York to an unnamed tributary of the Hudson River.
  2. Respondents are jointly and severally liable for a penalty of $200,000, of which $50,000 is to be paid to the Department within thirty (30) days of the date of this order. The remaining $150,000 of this penalty is suspended contingent upon respondents' timely compliance with this order. In the event that respondents fail to comply with any aspect of the schedule set forth herein, or as modified by the express written approval of the Region 4 Regional Director, the remaining $150,000 is due and payable to the Department within 10 days of such non-compliance.
  3. Respondents are to cease all discharges from the facility within sixty (60) days of the date of this order.
  4. Respondents are to retain the services of a New York State licensed professional engineer to comply with the terms of this order and respondents are to so notify the Department staff accordingly within twenty-one (21) days of the date of this order.
  5. Respondents are to submit (a) a SPDES permit application and (b) an approvable engineering plan and report prepared by a New York State licensed professional engineer for the replacement of the existing sewage disposal system within ninety (90) days of the date of this order. The plan shall include a proposed schedule for construction of the facility and all work shall be completed by no later than June 1, 1999.
  6. The provisions, terms, and conditions of this order and the attached ruling shall bind the respondents, their officers, directors, agents, servants, employees, successors, and assigns and all persons, firms, and corporations acting for or on behalf of the respondents.
  7. All communications between the respondents and the Department in this matter shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306.

For the New York State Department of Environmental Conservation
____________/s/____________
By: John P. Cahill, Commissioner

Albany, New York
August 31, 1998

TO: Kenneth Gunshor, Esq.
295 Main Street
P.O. Box 221
Mt. Kisco, New York 10549

Richard E. Ostrov,
Assistant Regional Attorney
New York State Department of Environmental Conservation
Region 4
150 North Westcott Road
Schenectady, New York 12306-2014

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17 of the Environmental Conservation Law

-by-

Estate of Fred R. Mazzacano,
Paul Apollonio, Gary Mazzacano,
Respondents

Administrative Law Judge's Rulings on Staff's Motion for Order Without Hearing

DEC File No. R4-1925-97-01

SUMMARY OF RULING

The Department staff's motion for an order without hearing is granted and the relief requested by staff is granted subject to the modifications described below.

PROCEEDINGS

The Department staff commenced this proceeding against the respondents Estate of Fred R. Mazzacano, Paul Apollonio, and Gary Mazzacano by service of a notice of hearing and complaint by certified mail on May 16, 1997. Staff's complaint alleges that respondents have violated provisions of Article 17 of the Environmental Conservation Law (ECL) and its implementing regulations by discharging sewage in excess of 1000 gallons per day without a State Pollutant Discharge Elimination System (SPDES) permit and by discharging raw sewage into a tributary of the Hudson River. In the complaint, staff requests that respondents individually and jointly pay a penalty of $100,000; cease all discharges from the facility; and submit a SPDES permit application containing an engineering plan for construction of a replacement sewage system. Staff moved for a default judgment by notice of motion dated June 12, 1997; however, upon request of respondents' counsel, Kenneth Gunshor, Chief Administrative Law Judge (ALJ) Daniel E. Louis granted an extension of time to respondents to supply their answer. Respondents served the answer on or about July 8, 1997.

In their answer, respondents deny or deny knowledge of most of the facts alleged in the complaint. Respondents also assert a number of defenses which they characterize as affirmative. Among these, respondents allege that the staff fails to state a cause of action and lacks jurisdiction; respondents also state that they were acting as representatives of the estate of the late Fred R. Mazzacano and therefore cannot be held liable and that there are other unnamed parties who should be party "defendants." Respondents also allege that the property is subject to two mortgages and additional debt and that there are insufficient funds to pay these liens.

After the answer was served, a period of time passed as the parties discussed settlement without success. On May 19, 1998, Assistant Regional Attorney Richard Ostrov moved to compel discovery and this ALJ granted the motion subject to certain modifications in a ruling and order dated June 3, 1998.

On July 22, 1998, the staff served the respondents with a notice of motion for order without hearing with supporting affidavits by staff. According to staff, respondents failed to comply with the June 3 order that directed respondents to comply with staff's demand for discovery. In addition, respondents failed to submit a response to staff's notice of motion for order without hearing by August 11 - within the twenty days required by § 622.12(c) of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR). Rather, respondents chose to submit a letter on August 12, 1998 that describes the status of the mortgages on the property and provides various excuses for the delay in the response. In the letter, counsel also requests a meeting with staff and the ALJ to attempt to resolve the "problems." In response, staff wrote to the ALJ objecting to the August 12 letter as untimely and inadequate as a response to staff's motion. In addition, based upon the respondents' continued failure to provide timely responses or comply with the June 3 order, staff opposes the requested meeting which it concludes would only further delay these proceedings.

I agree with staff that the August 12 letter is not a timely or adequate response to staff's motion for summary order. Section 622.12(c) of 6 NYCRR requires that the respondent file a response within 20 days of receipt of the motion papers that includes affidavits and other documentary evidence. In addition to the untimeliness of the August 12 submission, it is clearly not an affidavit nor documentary evidence and it does not respond to staff's allegations.(1) Accordingly, respondents have defaulted on the staff's motion for summary order.

FINDINGS OF FACTS

Stone Bridge Farms, Inc. owned a mobile home park known as Stone Bridge Mobile Manor on Middle Road in the Town of Greenport, Columbia County that contains approximately 40 mobile home units. Fred R. Mazzacano owned Stone Bridge Farms, Inc. until his death on October 11, 1991 when this facility was to pass by will to his sons Gary and Daniel Mazzacano. The Surrogates's Court, Columbia County issued letters testamentary to the executor of the estate -- Paul Apollonio -- on May 12, 1992. On September 29, 1993, the Department of State dissolved Stone Bridge Farms, Inc. for failure to pay taxes and this entity was no longer eligible to do business in New York State at the time the notice of hearing and complaint was served in this administrative proceeding. Yet, Stone Bridge Mobile Manor continued to operate and accept rent from its 40 lessees. On March 19, 1998, the Secretary of State issued an annulment of dissolution reinstating the status of the corporation.

On December 28, 1993, after the dissolution of the corporation, Gary Mazzacano filed a mobile home parks registration with the State of New York Division of Housing and Community Renewal listing the owners as Fred Mazzacano (already deceased) and Stone Bridge Farms. Mr. Mazzacano also filed an April 1994 application with the Town of Greenport, Columbia County for a permit to operate Stone Bridge Mobile Manor. Mr. Mazzacano wrote a check on the combined account of the deceased Fred R. Mazzacano and Stone Bridge Farm to accompany this application. A form letter to tenants dated December 1, 1996 requesting payment of outstanding rent contains the names Gary and Alane Mazzacano, Stone Bridge Mobile Manor below the signature line. See, Attachments 1-4 annexed to the affidavit of Dale E. Rowe, Director of Environmental Health, Columbia County Department of Health. Records of the Surrogate's Court indicate that the estate has not been closed.

On July 12, 1994, a formal hearing on alleged violations of the New York State Sanitary Code were held before the Columbia County Health Department regarding Stone Bridge Mobile Home Park. The minutes of this hearing indicate that Gary Mazzacano and Paul Apollonio are officers of Stone Bridge Farms, Inc. See, Attachment 5 to Rowe Affidavit. Director Rowe also indicates in his affidavit that Gary Mazzacano was the individual who represented the facility in its dealings with the Health Department.

In the affidavits of DEC Environmental Engineer Andrea Dzierwa, Regional Water Engineer Fred Sievers, Engineering Technician David Lis, and Director Rowe, these Department employees describe the conditions they found on an inspection of Stone Bridge Mobile Manor on May 19, 1998. In these affidavits they describe two leach fields that serve 10 trailers and 30 trailers respectively. Both leach fields were found to have surface discharges indicating their failure. The first leach field that serves the 30 trailers was found to be discharging sewage effluent to a surface location that followed a natural course to an unnamed tributary of the Hudson River which is a Class C stream (index no. H-198-6). Pursuant to 6 NYCRR § 701.8, these waters should be suitable for fish propagation and survival and the water quality should be suitable for swimming and fishing. The odor from the liquid was clearly that of sewage effluent. A surface discharge of sewage effluent was also found emanating from the second leach field and this discharge was running within approximately 20 feet of a trailer. In addition, Columbia County Department of Health Director Rowe noted that he had observed the same conditions on March 2, 1992.

Conservative engineering estimates indicate that each trailer discharges about 200 gallons per day of sewage effluent. See, Design Standards for Wastewater Treatment Works, Intermediate Sized Facilities, Table 3, annexed as Attachment 1 to Dzierwa Affidavit. The approximately 40 trailers at Stone Bridge Mobil Manor discharge more than 1,000 gallons per day of sewage effluent into the leach fields. The respondents have no SPDES permit to discharge pollutants from the leach fields of Stone Bridge Mobil Manor into the waters of the State.

Inspections by DEC staff of this facility on June 2, 1994, August 1, 1996, and May 15, 1997 revealed conditions identical to those seen on the May 19, 1998 visit.

To replace the two leach fields at the facility, the cost would be approximately $100,000.

DISCUSSION

Pursuant to 6 NYCRR § 622.12(a), staff has supported its motion for an order without hearing with four factual affidavits in addition to the affirmation of Assistant Regional Attorney Ostrov and the documentary evidence that is annexed to these documents. Respondents have failed to provide any affidavits or factual evidence in response. Thus, there can be no doubt that summary judgment in favor of staff is appropriate as the respondents "failed to establish the existence of any material issue of fact which would require a hearing. Edgar v. Jorling, 225 AD2d 770 (2d Dep't 1996); 6 NYCRR § 622.12(c). It is essential that a party opposing summary judgment submit competent evidence rather than conclusions or speculation in order to defeat the motion. See, Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Moreover, respondents failed to comply with staff's request for discovery and the June 3, 1998 order of this ALJ that required respondents to produce certain documents concerning the operations of this facility including information relating to the expenditure of funds for the maintenance and operation of Stone Bridge Mobile Manor and correspondence, employment contracts, and other contracts between or among Gary Mazzacano, Paul Apollinio, and other individuals or businesses pertaining to the operation of Stone Bridge Mobil Manor. Since respondents chose not to produce these and other records subject to the administrative order, they are now subject to inferences that the material would not be favorable to their position pursuant to 6 NYCRR § 622.7(c)(3).

Staff has met its burden in proving that respondents, who operate and manage the facility, are in violation of ECL §§ 17-0505, 17-0701(1)(a) and (b), 17-0803 and 6 NYCRR § 751.1 by discharging sewage into waters of the State without a SPDES permit from two leach fields. Staff as well as Director Rowe observed this discharge, individually or collectively, on March 2, 1992, June 2, 1994, August 1, 1996, May 15, 1997, and May 18, 1998.

While respondents suggested in their answer that those holding mortgages on the property are also appropriate respondents who should share in any liability, it is respondents who are responsible for the facility on a day-to-day basis. Respondent Mazzacano accepts rent from the tenants, has taken responsibility for the registration and licensing of the facility with the Division of Housing and Community Renewal and Columbia County respectively, and has been the principle contact with the County Health Department. Respondent Apollonio is the executor of the estate of Fred R. Mazzacano and in that capacity is responsible for the assets of the estate and in carrying out the legal obligations of the estate. And, as noted by Assistant Regional Attorney Ostrov in his affirmation supporting the staff's motion, an estate is considered a person under Article 17 and thus, is bound by the legal requirements therein. ECL § 17-0105(1). The Department is not under any obligation to seek out others to join as respondents who are at best tangentially involved. Respondents are free to take whatever legal action they deem appropriate to seek contribution for the remedies that the Commissioner orders. However, the Department staff appropriately named the respondents in the complaint based upon their respective roles vis a vis the facility.

Section 17-1929 of the ECL provides for a maximum civil penalty of $25,000 per day for each day of violation of Article 17 and the implementing regulations. While it is clear that the two violations noted by staff (discharging without a permit and discharging untreated effluent into waters of the State) have been ongoing for at least four years, if only the four dates of the Department staff's inspections are used to calculate a maximum penalty, the amount would be $200,000. The civil penalty policy of this Department provides a number of factors to determine penalties including the gravity of the violation, the cooperation of the respondent and the respondent's compliance history, and the economic benefit gained by non-compliance.

Staff has calculated an economic benefit to respondents of $32,000, using a rate of return of 8% and an estimated cost to replace the systems of $100,000. The respondents have not demonstrated a good compliance history since the trailer park has been discharging illegally for at least 8 years. In addition, the respondents have not shown themselves to be cooperative but rather have sought to delay these proceedings and to point the blame elsewhere. As the violations have continued for some time, they are environmentally significant as the effluent leaves the premises and enters a tributary of the Hudson River. In addition, the failure to obtain a permit that would require a properly operating treatment facility is also a serious violation of the State's environmental laws.

Accordingly, I recommend that the Commissioner order the respondents to pay a penalty of $200,000, with $150,000 suspended pending respondents' compliance with the measures set forth in the order that are required to resolve this situation. In particular, I recommend that staff be granted the injunctive relief requested requiring: (1) respondents to cease all discharges from the facility within 60 days of the date of the Commissioner's order; (2) respondents to retain the services of a New York State licensed professional engineer to comply with the order and to notify Department staff accordingly within 21 days of the date of the Commissioner's order; (3) respondents to submit (a) a SPDES permit application and (b) an approvable engineering plan and report prepared by a New York State licensed professional engineer for the replacement of the existing sewage disposal system within 90 days of the date of the Commissioner's order. The plan shall include a proposed schedule for construction of the facility and all work shall be completed by no later than June 1, 1999. Respondents' failure to attain the above scheduled deadlines without the express written approval of the Region 4 Regional Director should be considered a violation of the Commissioner's order triggering the respondents' obligation to pay the suspended portion of the penalty.

CONCLUSION

I recommend that staff's motion for summary order be granted with the requested relief modified as noted above. Given the respondents' lengthy history of non-compliance and the continued pollution of State waters by respondents' inaction, it will be incumbent upon staff to carefully monitor respondents' compliance with the Commissioner's order and in the event respondents do not adhere to the terms of the order, to take appropriate measures to enforce the order.

Dated: Albany, New York
August 27, 1998

____________/s/____________
Helene G. Goldberger
Administrative Law Judge

TO: Kenneth Gunshor, Esq.
295 Main Street
P.O. Box 221
Mt. Kisco, New York 10549

Richard E. Ostrov,
Assistant Regional Attorney
New York State Department of Environmental Conservation
Region 4
150 North Westcott Road
Schenectady, New York 12306-2014

1 In Mr. Gunshor's letter of August 12, he states that he had been on vacation in early August, away in July, and unexpectedly away to visit his ill mother and thus, unable to respond sooner to staff's motion. However, Mr. Gunshor never contacted this office to request any extension of time to respond to staff's motion.

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