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MB Recycling Unlimited - Order, August 2, 1993

Order, August 2, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Articles 27 and 71 of the New York State Environmental Conservation Law, and 6 NYCRR Part

by

MB Recycling Unlimited, Inc.
Respondent

Case No. R1-5206-92-11 360

ORDER

WHEREAS:

1. Pursuant to a Notice of Hearing and Complaint dated November 10, 1992, an enforcement hearing was held before Administrative Law Judge ("ALJ") Frank Montecalvo on January 12 and 13, 1993. The Department of Environmental Conservation (the "Department") appeared by J. Mark McQuerry, Esq. The Respondent, MB Recycling Unlimited, Inc., appeared by Shlimbaum, Shlimbaum and Jablonski, Edward C. Jablonski, Esq., of counsel.

2. Upon review of the ALJ's Hearing Report (copy attached) and the record of this proceeding, I concur with its Findings of Fact, Conclusions of Law, and Recommendations except as noted below.

Record of Proceeding

3. I concur with ALJ Montecalvo's ruling which held that it was improper for Department Staff to submit new evidence in its reply brief. That evidence shall not be part of the record of the proceeding and accordingly cannot be considered.

Liability for Alleged Violations

4. The Report establishes that the Respondent committed multiple violations of 6 NYCRR 360-1.7(a)(1)(ii) by having operated a solid waste processing facility, a solid waste transfer station and a recyclables handling and recovery facility at 1345 Newbridge Road, North Bellmore, NY, without the necessary permits, during the period January 22, 1991 through November 27, 1991 inclusive.

5. Observations were not made on each and every day for which a finding is made that Respondent was operating illegally. However, an observation on each such day is not needed in order to demonstrate by a preponderance of the evidence that such operation was occurring. In this case, indirect evidence in the record and cited in the report provides more than adequate support for such charges.

Appeal of ALJ Ruling on Discovery

6. I find that the January 13, 1993 ruling of the ALJ granting a protective order to the Respondent was improper. While Department Staff should not use discovery procedures in 6 NYCRR Part 622 to investigate charges until it first has established a reasonable basis for the charge, Staff may properly use those procedures to get additional information on charges for which they already have established a reasonable basis. In this case, prior to its discovery request Staff was in possession of more than enough information to file charges that related to illegal operations prior to January 22, 1991.

7. If there were any issue concerning whether the complaint encompassed the period prior to January 22, 1991, that matter could have been clarified on the record and the complaint could have been modified, if necessary. Such a procedure would not have been violative of any of the Respondent's rights.

8. Although the ALJ was legitimately concerned with using discovery to narrow the issues being adjudicated, his ruling instead had the effect of precluding the adjudication of those charges.

9. The Staff may have had other means to obtain information that was sought in its discovery request. However, those means do not in any way diminish Staff's rights to discovery under 6 NYCRR Part 622.

10. The January 13, 1993 ruling of the ALJ which prevented discovery of information related to the period prior to January 22, 1991 effectively prevented adjudication of any charges relating to that period. To the extent that charges arising out of activities by the Respondent prior to January 22, 1992 are included as part of the January 6, 1993 complaint, they are not being resolved in this Order.

Civil Penalties

11. The Respondent's operation of a solid waste storage facility, a solid waste processing facility and a recycling handling recovery facility constitute separate violations of 6 NYCRR 360-1.7(a)(1)(ii). The Respondent may also be assessed a penalty for every day that each of these violations continued.

12. I find that the Amended Complaint is adequate to place the Respondent on notice that it was being charged with operating without permits on all the grounds cited above and that it was alleged that those violations spanned the time period from at least January 22, 1991 through November 27, 1991. Further, both the Amended Complaint and Department Staff's penalty calculation which was submitted for the record stated that the requested penalty was the minimum that was judged appropriate, implying that a lager penalty was possible.

13. In determining appropriate relief, I have considered the ALJ's analysis of the relevant factors in this case. However, in light of the egregious nature of the violations and Respondent's failure to cooperate with the Department, I find that a larger penalty than the one recommended by the ALJ is warranted.

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

I. Respondent MB Recycling Unlimited, Inc. is found to have violated 6 NYCRR 360-1.7(a)(1)(ii) by having operated a solid waste management facility (also qualifying as a processing facility, transfer station and recyclables handling and recovery facility) at 1345 Newbridge Road, North Bellmore, NY (the Site), without a permit, on at least 111 days during the period January 22, 1991 through June 26, 1991, plus an unspecified period prior thereto, and at unspecified times during a period thereafter up to and including November 27, 1991.

II. Respondent shall immediately cease any and all activities associated with operation of a solid waste management facility at the Site, including cessation of any and all solid waste acceptance, storage, transfer, processing and recyclables handling at the Site.

III. Respondent shall prepare and submit to the NYSDEC for its approval within ten (10) calendar days after the date of issuance of this Order, a closure plan prepared in accordance with the requirements of 6 NYCRR Part 360, which shall provide for the completion of closure of the facility within forty (40) calendar days after the date of issuance of this Order. Respondent shall implement the closure plan in accordance with the schedule contained therein and any conditions of NYSDEC approval.

IV. Within thirty (30) days of the service of a conformed copy of this Order, Respondent shall provide payment to the Department of TEN THOUSAND DOLLARS ($10,000) to fund an environmental monitor for the Site to ensure compliance with this Order, with the ECL and associated rules and regulations, including ensuring that facility operation has ceased and that closure is implemented in accordance with the approved closure plan.

V. Respondent is assessed a penalty of TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000), ONE HUNDRED AND SEVENTY-FIVE THOUSAND DOLLARS ($175,000) of which shall be payable within sixty (60) days of the service of a conformed copy of this Order on the Respondent. The balance of the penalty shall be suspended on the condition that the Respondent complies with the terms of this Order.

VI. Staff, in its discretion, may bring charges in a separate action related to alleged illegal operation prior to January 22, 1991 against the Respondent. In any such action, Staff shall be allowed to employ discovery permitted by 6 NYCRR Part 622 to obtain additional information related to those charges.

VII. The provisions, terms and conditions of the Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

VIII. All communications between Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 1 Headquarters, Building 40, State University Campus, Stony Brook, NY 11790-2356.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
____________/s/____________
THOMAS C. JORLING, COMMISSIONER

Dated: Albany, New York
August 2, 1993

TO:

MB Recycling Unlimited, Inc.
1345 Newbridge Road
North Bellmore, NY 11710
[VIA CERTIFIED MAIL W/ RETURN RECEIPT]

Shlimbaum, Shlimbaum and Jablonski
265 Main Street, PO Box 8
Islip, NY 11751-0008
Attn: Edward C. Jablonski, Esq.

J. Mark McQuerry, Esq.
NYSDEC
50 Wolf Road, Room 609
Albany, NY 12233

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings
50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Alleged Violation of Articles 27 and 71 of the New York State Environmental Conservation Law and 6 NYCRR Part 360 by

MB Recycling Unlimited, Inc.
1345 Newbridge Road
North Bellmore, NY 11710

Respondent

Case No. R1-5206-92-11

HEARING REPORT

-by-

/S/
Frank Montecalvo
Administrative Law Judge

PROCEEDINGS

Pursuant to a Notice of Hearing and Complaint dated November 10, 1992, duly served on Respondent, the New York State Department of Environmental Conservation (the "Department," "NYSDEC" or "DEC") Region 1 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding, conducted in accordance with the State Administrative Procedure Act ("SAPA") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, against MB Recycling Unlimited, Inc., 1345 Newbridge Road, North Bellmore, NY 11710 (the "Respondent"), in the matter of the alleged violation of Articles 27 and 71 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Part 360. The Notice of Hearing set a hearing date of January 12, 1993.

Respondent filed an Answer to the Complaint dated December 2, 1992.

On December 7, 1992, Staff requested an extension until December 14, 1992 of the 6 NYCRR 622.8 5-day deadline to move for a protective order from, and to respond to, a discovery request that Staff received from Respondent on December 2, 1992. Staff asserted that some of the requested documents were privileged, and that it needed the extension because the files were in the regional office while counsel was at Central Office. On December 8, 1992, the Respondent objected to Staff's request for an extension, indicating it did not want the proceedings to be delayed, and alleging that Staff was refusing to process Respondent's permit application pending these proceedings, and that Staff instituted these proceedings only after Respondent brought an Article 78 action in court to force Staff to do so. On December 8, 1992, the ALJ by letter granted Staff's December 7, 1992 request, and gave Staff until December 14, 1992 to move for a protective order.

On December 9, 1992, the Respondent moved that NYSDEC be directed to answer interrogatories.

On December 14, 1992, Staff (1) moved for a protective order from the discovery request it received on December 2, 1992, alleging privilege; and (2) opposed Respondent's December 9, 1992 motion for interrogatories. By note attached to its papers, Staff indicated that a list of the purportedly privileged documents would be submitted on December 17, 1992 [i.e., 3 days after the established deadline]. In its submission, Staff also made reference to other materials which were not received. On December 14th following receipt of the foregoing, the ALJ issued Staff a memo noting that the referenced materials had not been submitted, and reminding Staff that the deadline for its motion was December 14, 1992. On December 15, 1992, Staff indicated that its reference to other supporting documents was in error.

On December 15, 1992, the ALJ issued a Ruling which denied Staff's December 14, 1992 motion for a protective order, because the motion did not contain sufficient information to establish that the privilege applied.

On December 17, 1992, Staff, enclosing the list of allegedly privileged documents, moved for reconsideration of the ALJ's December 15, 1992 Ruling, indicating that counsel was unable to submit the list due to bad weather and/or being out of the office during the December 12th through 16th period, and arguing that under such circumstances it would be unreasonable to deny its motion. On December 18, 1992, the Respondent opposed Staff's December 17, 1992 motion for reconsideration, pointing out that Respondent had previously received Staff's list under a cover letter dated December 8, and questioning why it could not have been timely submitted.

On December 18, 1992, the Respondent moved for a protective order from Staff's discovery request, which request had been sent to Respondent under cover letter dated December 15, 1992.

On December 18, 1992, Staff moved for the ALJ to (a) consolidate ruling on Respondent's December 18, 1992 motion for protective order with Staff's December 17, 1992 motion for reconsideration; (b) give Staff additional time to respond to Respondent's December 18, 1992 motion for a protective order; and (c) allow Staff until December 30, 1992 to file additional papers to support Staff's December 17, 1992 motion for reconsideration.

On December 18, 1992, the ALJ issued a Ruling/Order which (a) partially granted Respondent's December 9, 1992 motion that NYSDEC be directed to answer interrogatories, (b) sua sponte directed that Staff supply with its answers to certain interrogatories additional information needed to address ambiguities in the Complaint (it was unknown if one or more than one violation was being alleged, if Staff was proceeding under one or more than one legal theory, or what the requested penalty was based upon), and (c) directed Staff to file its answers to the interrogatories simultaneously with service on Respondent, to be received within 10 days of the Ruling's date (i.e., by December 28, 1992).

On December 21, 1992, the ALJ issued Rulings which: (a) denied Staff's December 17, 1992 motion for reconsideration and Staff's December 18, 1992 request that it be allowed to file additional papers with reference thereto (Staff did not present a good reason for submitting the list late, nor did it indicate what additional information it wanted to submit); (b) denied Staff's December 18, 1992 motion for the ALJ to consolidate ruling on Respondent's December 18, 1992 motion for protective order with Staff's December 18, 1992 motion for reconsideration; and (c) granted Staff an extension to December 28, 1992 to answer Respondent's December 18, 1992 motion for a protective order, and adjusted the due date for Respondent's reply to December 31, 1992.

On December 28, 1992, Staff submitted its response to Respondent's interrogatories. Also on December 28, 1992, Staff submitted its response to Respondent's December 18, 1992 motion for a protective order.

On December 30, 1992, the Respondent requested that Staff be directed to provide meaningful, specific and complete answers to Respondent's interrogatories or, in the alternative, dismiss the Complaint. Respondent claimed, inter alia, that the Department's responses still left Respondent unaware of when in fact it is alleged to have violated the law and what it is that Respondent did on the unknown dates. [Review of the Record indicates this request had not been directly responded to by the ALJ. Therefore, it is addressed in Ruling 1 below.]

On December 31, 1992, Respondent submitted its reply, supporting its December 18, 1992 motion for a protective order.

On January 4, 1993, Staff appealed the ALJ ruling of December 15, 1992 (which denied Staff's motion for a protective order) to the Commissioner, and requested that the Commissioner grant Staff an immediate adjournment of the hearing pending his determination of the appeal, and a protective order or an order directing the ALJ to conduct an in camera review of documents to determine their qualification for protection. On January 6, 1993, the Respondent opposed Staff's January 4, 1993 appeal to the Commissioner, and strenuously objected to any adjournment of the proceedings.

On January 4, 1993, Staff moved before the ALJ for an adjournment of the hearing pending the Commissioner's determination of its January 4, 1993 appeal. On January 6, 1993, the Respondent opposed Staff's January 4, 1993 Motion to the ALJ for adjournment, and strenuously objected to any adjournment of the proceedings.

On January 6, 1993, Staff moved (1) to amend the Complaint, and (2) for an adjournment pending determination of its motion to amend the complaint. An Amended Complaint was enclosed with the motion papers. On January 7, 1993, the Respondent (1) did not oppose Staff's January 6, 1993 motion to amend complaint and filed an answer thereto, (2) opposed any adjournment of the proceeding.

On January 8, 1993, the ALJ issued rulings (1) granting Staff's January 6, 1993 motion to amend the Complaint, and substituted the Amended Complaint and Answer to the Amended Complaint for the original Complaint and original Answer; and (2) denied Staff's January 4, 1993 and January 6, 1993 motions for adjournment. (The Charges, Relief Requested, and Answer specified below are summarized from the Amended Complaint and Answer to the Amended Complaint. A copy of the Amended Complaint is attached hereto as Appendix A).

On January 12, 1993, in accordance with the Notice of Hearing, an adjudicatory hearing was convened before Administrative Law Judge ("ALJ") Frank Montecalvo at the NYSDEC Region One Offices, Building 40, State University Campus, Stony Brook, NY 11790. J. Mark McQuerry, Esq. appeared on behalf of the Department Staff. Shlimbaum, Shlimbaum and Jablonski (Edward C. Jablonski, Esq., of counsel) appeared on behalf of the Respondent.

At the commencement of the hearing on January 12, 1993, Staff moved to dismiss Respondent's affirmative defenses (see the Answer below). This motion was reserved upon [it is disposed of below under "Conclusions of Law"]; however the ALJ indicated that evidence related to Respondent's first affirmative defense (which alleged that a settlement had been reached with representatives of Staff) would not be admitted into the record, in accordance with precedent established by the Commissioner's Interim Decision in the Matter of Alfred Lopa et. al.

During the hearing on January 12, 1993, Staff delivered to the ALJ an Interim Decision from the Commissioner, dated the previous day, that reversed the ALJ's December 15, 1992 denial of a protective order for Staff, remanded the matter back to the ALJ to rule on all claims contained in Staff's December 17, 1992 filing, and directed the ALJ to determine whether an adjournment of the hearing was warranted pending resolution of the issues related to the protective order. The ALJ made the determinations remanded by the Commissioner's Interim Decision, from the bench. On consideration of the information submitted December 17, 1992 by Staff (the list of purportedly privileged documents), the ALJ again denied Staff's motion for a protective order because the list contained insufficient information about the documents to enable the ALJ to determine whether or not they were entitled to be protected. However, the ALJ permitted Staff to submit the actual documents later that day for an in camera review, and the ALJ at hearing on the following day made individual rulings on each submitted document, which included an explanation of how each ruling was determined. All documents found privileged were returned to Staff counsel. No adjournment pending resolution of the issues related to the protective order was made because Respondent did not object to continuing with the hearing without having obtained its requested discovery.

Respondent's December 18, 1992 motion for a protective order was discussed at hearing on January 12 and formally ruled upon the following day. In the course of the discussion, the ALJ indicated that evidence for the record would be limited to the specific charges of the complaint, as clarified by Staff's answers to Respondent's interrogatories, and that evidence of violations not specifically charged would not be received. Staff requested an adjournment pending obtaining its requested discovery. For a number of reasons, including the fact that Staff sought discovery of documents going back to 1980 and thus appeared to be conducting a "fishing expedition" for additional violations, Respondent's motion for a protective order was granted. (This matter is dealt with further in the discussion under Recommendation 1 below).

Testimony was taken on January 12, 1993 and continued on January 13, 1993, concluding on the last mentioned date. Staff presented as its witnesses: Environmental Conservation Officer ("ECO") Jeffrey Jondle; ECO James Hays; Anit Patel, DEC Environmental Engineer I; Investigator David Bennett, Bureau of Environmental Conservation Investigation ("BECI"); Anthony Montesano, Jr. (under subpoena); and Anthony Montesano, III (under subpoena). The last two witnesses refused to answer almost all questions posed to them, claiming privilege under the 5th Amendment [U.S. Constitution]. Respondent rested its case without calling any witnesses.

On January 12, 1993, between witnesses, Staff again moved to amend the complaint, this time to add additional respondents. Respondent objected. The motion was denied because no reason to amend the complaint at that time had been shown: Staff knew who the other parties were and could have named them in its initial complaint, but didn't; and an adjournment would have been required to obtain service over the additional parties.

The record was held open to permit receipt of the hearing transcript and an exchange of closing briefs and replies. Staff and Respondent both submitted closing briefs, and Staff submitted a reply. Respondent immediately thereafter filed an objection to Staff's enclosure of certain documents with its reply brief, claiming, essentially, that it was an untimely and improper submission of evidence. Respondent requested that such documents be disregarded, as well as certain comments in the reply. Staff countered, essentially claiming it was unaware of legal restrictions on what may be incorporated into a closing brief; that the documents are an appropriate and reliable supplement to the record because they confirm assertions made by Staff's witnesses regarding relationships among companies doing business at the facility; that because they were submitted to DEC by Respondent's principals and its counsel, there is no prejudice or surprise; and other arguments. This issue is addressed in Ruling 2 below.

The record was closed on March 17, 1993.

Ruling 1:

The concerns raised by Respondent's December 30, 1992 claim of (essentially) not having received sufficient notice of the charges have been rendered moot by (1) Staff's Amended Complaint, which contained additional detail on the specification of the charges, (2) the ALJ confining the scope of the hearing to the Amended Complaint's allegations and (3) the analysis contained under the Conclusions of Law below which attempts to track the Amended Complaint, as clarified by Staff's response to Respondent's interrogatories.

Ruling 2:

Closing arguments are for commentary on what the evidence in the record proved. The documentation submitted with Staff's reply brief (an affidavit of Anthony Montesano, Jr., sworn to July 12, 1991; a March 20, 1992 letter from Respondent's counsel; and 4 other documents related to the corporation's shares and officers) is not argument - it is evidence which should have been submitted at trial. Since consideration of evidence submitted in such a fashion would raise due process questions that would render the final decision herein vulnerable to attack in court, the documentation has been disregarded.

Summary of The Charges:

Pertaining to a site (the "Site" or "facility") located at 1345 Newbridge Road, North Bellmore, NY (2) Paragraphs of the Amended Complaint are parenthetically referenced., the Amended Complaint charges Respondent with the following "Causes of Action." In the Original Complaint, Respondent was charged simply at Paragraph Fourth: "On information and belief, from some time prior to January 22, 1991 through and including November 27, 1991, Respondent operated a solid waste management facility at the Site, including but not limited to solid waste storage, transfer, processing and recyclables handling, [located at 1345 Newbridge Road, North Bellmore, NY per Paragraph Second], without having first obtained a permit to construct and/or operate such facility in violation of ECL 27-0707 and 6 NYCRR 360-1.7(a)(1)(i) [sic]." [bracketed material added; subparagraph (ii) should have been cited for alleged operation violation].

I. Respondent constructed a solid waste transfer station without a permit to construct, in violation of 6 NYCRR 360-1.7(a)(1)(i). ( 2, 15-61)

II. Respondent operated a solid waste transfer station without a permit to operate, in violation of 6 NYCRR 360-1.7(a)(1)(ii). ( 2, 15-18, 20, 21, 23-26, 32-36, 45-48, 51-56)

III. Respondent operated a solid waste transfer station without a permit to operate, in violation of 6 NYCRR 360-1.7(a)(1)(ii). ( 2, 15-17, 19, 21-25, 27, 32-35, 37, 45-47, 49, 51-55, 57)

IV. Respondent operated a solid waste processing facility without a permit to operate, in violation of 6 NYCRR 360-1.7(a)(1)(ii). ( 2, 15-17, 21-25, 27, 28-30, 32-35, 38-41, 45, 52-55, 58-60, 62)

V. Respondent operated a solid waste recyclables handling and recovery facility without a permit to operate, in violation of 6 NYCRR 360-1.7(a)(1)(ii). ( 2, 15-17, 41-43, 45, 52)

VI. Respondent constructed a solid waste management facility some time prior to January 22, 1991 without a permit to construct, in violation of 6 NYCRR 360-1.7(a)(1)(i). ( 1-62)

VII. Respondent operated a solid waste management facility without a permit to operate, on certain days prior to January 22, 1991, in violation of 6 NYCRR 360-1.7(a)(1)(ii). ( 1-62)

VIII. Respondent operated a solid waste management facility without a permit to operate, on certain days subsequent to January 22, 1991, in violation of 6 NYCRR 360-1.7(a)(1)(ii). ( 1-62)

In support of the above causes of action, Staff alleged the following observations:

On January 22, 1991, solid waste was being dumped and had been placed on the floor of a building at the facility ( 15-17). Also on January 22, 1991, a person calling himself Anthony Montesano told a DEC Staff person that he had been in business for 30 years and thought he was "grandfathered in" and did not need a permit (22).

On February 12, 1991, solid waste was being dumped and had been placed on the floor of a building at the facility ( 23-25). In addition, a bulldozer drove repeatedly over solid waste (28).

On June 26, 1991, solid waste was being dumped and had been placed on the floor of a building at the facility ( 33-35). In addition, a bulldozer drove repeatedly over solid waste (38). Also, employees were picking recyclables from the dumped solid waste, and containers of recyclables were present (41).

On July 8, 1991, solid waste had been placed on the floor of a building at the facility ( 46-47). Also on that occasion, two individuals identifying themselves as Anthony Montesano, Jr. and Anthony Montesano, III described prior facility operations that included dumping of mixed solid waste including construction and demolition debris, manual removal of recyclables and transfer of recyclables and solid wastes (52).

On November 27, 1991, solid waste was being dumped and had been placed on the floor of a building at the facility ( 53-55). In addition, a bulldozer drove repeatedly over solid waste (58).

On all of the above mentioned dates, Respondent had neither a permit to construct, nor a permit to operate, a solid waste management facility ( 20-21, 31-32, 44-45, 50-51, 61-62).

The Relief Requested:

Staff requests that the Commissioner issue an Order directing:

1) That Respondent immediately cease any and all activities associated with operation of a solid waste management facility at the Site, including cessation of any and all solid waste acceptance, storage, transfer, processing and recyclables handling at the Site.

(2) That Respondent prepare and submit to the NYSDEC for its approval within ten (10) calendar days after the date of issuance of the Order, a closure plan prepared in accordance with the requirements of 6 NYCRR Part 360, which plan shall provide for the completion of closure of the facility within forty (40) calendar days after the date of issuance of the Order. Respondent shall implement the closure plan in accordance with the schedule contained therein and any conditions of NYSDEC approval.

(3) That Respondent be assessed a payable penalty for the above-described violations of ECL Article 27 and 6 NYCRR Part 360 of twenty-five hundred dollars ($2,500) for the initial violation plus one thousand dollars ($1,000) for each day during which Respondent operated a solid waste management facility at the Site without the required permits. The NYSDEC requests that the assessed payable penalty be no less than one hundred and thirteen thousand five hundred dollars ($113,500).

(4) That Respondent immediately provide payment to the NYSDEC of ten thousand dollars ($10,000) to fund an environmental monitor for the Site to ensure compliance with the Order, with the ECL and associated rules and regulations, including ensuring that facility operation has ceased and that closure is implemented in accordance with the approved closure plan.

(5) Such other and further relief as may be deemed just and proper in the circumstances.

The Answer:

Respondent admitted that it was a corporation having its offices for the transaction of business at the Site, and admitted not having permits for construction and operation of a solid waste management facility on the 5 occasions cited by Staff. Respondent denied owning the Site and essentially denied all charges and/or knowledge of facts Staff cited to support the charges. In addition, Respondent claimed the following as Affirmative Defenses: (1) That NYSDEC through its counsel, J. Mark McQuerry, Chief of the Bureau of Compliance, previously agreed that all unpermitted transfer station violations during the period of time from sometime prior to January 22, 1991 through and including the date of the Proposed Consent Order were to be settled in accordance with an agreement to pay $5,000.00. (2) That Respondent took all actions required of it by law to obtain a license to operate a solid waste management facility; and that NYSDEC through neglect, nonfeasance, misfeasance and intentional delay, wrongly refused to license Respondent. (3) That Respondent should not be penalized by NYSDEC's lack of action regarding Respondent's license application. Respondent demands judgement against NYSDEC dismissing the complaint and together with the cost and disbursements of this law suit.

Issue Raised in Closing Arguments:

Staff has challenged the ALJ's January 13, 1993 bench ruling granting Respondent's December 18, 1992 motion for a protective order.

FINDINGS OF FACT ("Findings")

1. Respondent, MB Recycling Unlimited, Inc., is a corporation having its offices for the transaction of business at a parcel of property located at 1345 Newbridge Road, North Bellmore, New York (the "Site").

2. Respondent has been operating a materials recovery, recycling and transfer business at the Site, since 1959. The facility processes and recycles mixed commercial solid waste (paper, corrugated cardboard, etc.), and construction and demolition debris (wood, metals, inert materials, etc.). Respondent applied for a permit. In its submission was the statement "M-B RECYCLING UNLIMITED, INC. has been operating a materials recovery, recycling and transfer business at the current site, since 1959. ... In [sic] this existing facility processes and recycles mixed commercial solid waste (paper, corrugated cardboard, etc.), and construction and demolition debris (wood, metals, inert materials, etc.)." (Exhibit S-19 in the record).

3. Respondent's Certificate of Incorporation, filed in 1981, states that Respondent was organized:

"For recycling, processing and reprocessing of wool, cotton, silk, flax, hemp, jute, sisal, rayon, other fibers, rubber, glass, paper, plastics, or other materials, synthetic or otherwise, cloths, threads, yarns, and fabrics of all manner and kinds, and suitable for any use or uses whatsoever; articles of any nature of metal, wood, paper, glass, rubber, plastics, or any other material, synthetic or otherwise, and machinery, apparatus, equipment, supplies, tools, and articles of any kind useful in connection with recycling, processing and reprocessing of any of the foregoing, together with the rental, leasing, purchasing, and sale of such machinery, apparatus, equipment, supplies, tools, and articles of any kind in connection with the recycling, processing and reprocessing of any of the foregoing ..."

4. At no time relevant herein did Respondent possess a permit to construct or a permit to operate a solid waste management facility at the Site issued by the Department pursuant to 6 NYCRR Part 360.

5. The Site is accessed through a gate on the east side of Newbridge Road. The Site, toward the rear of the parcel, contains a 1 story building with 2 large bay doors approximately 20 feet high and 18 feet wide, a standard doorway in between, and "M-B Recycling" spelled out in large red letters over the doorways, all on the building's west side, facing Newbridge Road. (This structure will hereinafter be termed "the building"). A concrete ramp extends along the north side of the building, running downward to a loading dock-like structure in the back that enters the building. A one story addition, painted to match the main building, with a large bay door facing Newbridge Road (similar in height but wider than those in the main building) is on the south side of the building. Inside the addition is a ramp that extends below pavement level into a pit. The large bay doors in the building and the addition are capable of being closed. The Site also contains a smaller office building ("office building"), and two other buildings not relevant to the activities alleged herein.

6. On January 22, 1991 [a Tuesday], ECO Jeffrey Jondle saw a truck enter the Site through a gate on Newbridge Road. The truck carried a "dumpster" or "rolloff" of approximately 40 yard capacity. Jondle saw 2 x 4's sticking out of it. From off site Jondle observed the dumpster going up (as if unloading). Jondle also saw a "track" or "front" loader moving on the Site in front of and inside the building amid what appeared to Jondle to be solid waste. Jondle entered the Site through the open gate.

7. The dumpster, marked "Associated," contained a combination of dry wall and 2 x 4's, some of which appeared to Jondle to have come from a building that had been in a fire. Such material was observed outside of and adjacent to the southwest corner of the building, and behind the tipped roll-off.

8. On the aforesaid occasion, quantities of material, including cardboard boxes, papers, plastic garbage bags, and pieces of wood, existed in and around the building with the "M-B Recycling" sign. Tires were stacked in the standard doorway to the building. A rolloff or dumpster was located adjacent to the concrete ramp on the north side of the building. A pile of material (wood, dry wall, plastic garbage bags, cardboard boxes, etc., (appearing to be household and commercial industrial waste), newspapers, and some tires) was inside the building, inclined toward the back of the building and almost reaching the building's roof. The pit at the end of the ramp inside the addition also contained waste.

9. On the aforesaid occasion at the Site, a person calling himself Anthony Montesano told ECO Jondle that they had been in business for 30 years and thought they had been "grandfathered in" and did not need an operating permit.

10. On January 23, 1991, ECO Jondle issued a Notice of Violation ["NOV"] to "M & B Recycling Unlimited" at the Site's address, addressed to Mr. Anthony V. Montesano, Jr., alleging violation of 6 NYCRR 360-1.7(a)(1)(ii) "Operation of a solid waste facility without a valid permit to do so" and another regulation. The ECO gave the NOV to Anthony Montesano, III, on January 23, 1991. The NOV stated, among other things, "You are hereby advised to cease your operation at the referenced location immediately. Failure to do so may result in additional violations and possible criminal prosecution...".

11. ECO James Hays visited the Site on February 12, 1991 [a Tuesday] at about 2:00 PM. A tracked payloader operated inside the building, driving over material, crushing and pulverizing it. The payloader pushed material toward the back of the building. Material in the building was piled approximately 12 feet high. The material was a mixture of things, including wood, painted wood, stone, brick, and some cardboard. ECO Hays called this material construction and demolition debris. A "Monty Brothers" marked truck with an "Associated Waste Disposal" rolloff containing what ECO Hays described as construction and demolition debris pulled into the Site and dumped its load in front of the building.

12. BECI Investigator David Bennett visited the Site on June 26, 1991 [a Wednesday]. A payloader was operating in the building. The ramp on the north side of the building contained solid waste (a mixture of wood pieces and gypsum board; a chair) and water. People were picking metals, paper and cardboard from the materials inside the building, and sorting them into piles. A pile of cardboard was being placed into a rolloff in front of the building. Inside the building there were several piles of different types of materials. Toward the front, inside the building, was loose, freshly dumped material (i.e., the pieces were larger than other material on premises). Toward the middle of the building, a tracked loader was being driven on top of material, breaking it up into smaller pieces. A 10 to 12 foot high pile of broken up (condensed) material was in the rear of the building.

13. An NOV and Cease and Desist Directive was completed by Inv. Bennett on June 26, 1991 and was given to Frank Scimeca who was on-Site at the time, said he was in charge, and said he was President of Freeport Rubbish. Other companies, including Respondent, were also named in the Notice. The Cease and Desist Directive forbade continued operation of the facility.

14. On July 8, 1991 [a Monday], DEC Environmental Engineer I Anit Patel visited the Site between 10:15 AM and noon. He was accompanied by Inv. Bennett. He went to the Site to work out a procedure so that the Montesanos could get a permit, and to see whether or not the facility was operating. The facility was not receiving or processing materials at the time. Mr. Patel met Anthony Montesano who took him around the Site. A payloader was in the building and waste materials (such as pieces of sheetrock, plastic and wood) were on the ground. A pile of condensed material was inside the building, graded to a height of 10 to 12 feet at the rear of the building. A rolloff and another closed container of similar size were parked in the addition to the building at the base of the ramp. The ramp area itself was free of waste. A rolloff containing metal was parked in the ramp on the north side of the building. The metal was a type that could be recycled after being sorted from a waste stream. The ramp area itself was free of waste. Two roll-offs were in front of the building, one containing paper and cardboard.

15. On the aforesaid occasion while Mr. Patel was at the office building, another person identifying himself as Anthony Montesano described the scope and nature of the Site's operation prior to June 26, 1991. Mr. Montesano said that approximately 75 to 80 percent of the material received at the facility are recyclables, that 7 or 8 containers of solid waste are received each day and these containers are of the size from 10 to 40 cubic yards, that paper and cardboard are transferred to a place called Jamaica Ash, and metal is transferred to Mid Island Salvage. Records shown to Mr. Patel indicated that in February 1991, approximately 55 tons of paper and cardboard were transferred to Jamaica Ash, and approximately 60 tons of metal went to Mid Island Salvage. Montesano said that the residue and concrete was transferred to 110 Sand and Gravel.

16. On November 27, 1991 [a Wednesday], Inv. Bennett visited the Site at approximately 7:20 AM. At approximately 7:20 AM a 10 yard roll-off was seen entering the building through the south bay door from the southwesterly portion of the Site. A payloader was working inside. The roll-off left the building 10 minutes later, empty. At approximately 7:35 AM, a truck carrying a full rolloff entered the Site from Newbridge Road, backed into the building, and dumped C and D debris (what appears from photos to be a mixture of sheetrock pieces, cardboard boxes, wood pallets, plastic film, some insulation, and metal pieces). The large pile of condensed material was in the building. A payloader drove over the C and D debris. Bennett told the driver to get out of the truck.

17. On November 27, 1991, Inv. Bennett confronted Anthony Montesano, III in the office building, told him that he had been caught operating again, and asked him if he knew he wasn't supposed to. Montesano told Inv. Bennett "Yes, I know I'm not supposed to be operating," or something to that effect. Montesano walked to the building with Bennett, and yelled at the driver of the truck, Margon Malvoison, an employee of Associated, that he was not supposed to dump there. Later, back in the office, in response to Bennett's question of whether or not he was the manager of the site that day, Mr. Montesano, III said "Yes, I guess you can call me that."

18. More waste was inside the building on the November occasion than was present on July 8, 1991. The waste pile was there on both occasions. Loose, bulky waste (i.e., large pieces) was present in November, but not on the July occasion. The ramp area north of the building, which had contained a rolloff with metals but was otherwise clean on July 8, 1991, in November contained water and one to two yards of waste coming from inside the building. The quantities of waste on-site were such that they could not have been brought on to the facility that day.

19. An NOV was prepared by ECO Hays, alleging a violation of 6 NYCRR 360-1.7(a)(1)(ii) "operation of a solid waste management facility without a permit, NEA" dated November 27, 1991, and mailed it to Respondent. The NOV stated "You are hereby advised to cease your operation at the referenced location immediately. Failure to do so may result in additional violations and possible criminal prosecution..."

CONCLUSIONS OF LAW ("Conclusions")

Personal Jurisdiction:

1. The Department has personal jurisdiction over Respondent. (This was uncontested).

Subject Matter Jurisdiction:

2. Pursuant to authority provided by ECL 27-0703, the Department promulgated rules, at 6 NYCRR Part 360, which govern the operation of solid waste management facilities. These rules include the two regulatory provisions Respondent has been charged with violating, 6 NYCRR 360-1.7(a)(1)(i) and 6 NYCRR 360-1.7(a)(1)(ii), both effective from December 31, 1988 through the date of the instant Complaint. The Department has the authority to enforce these regulations in the manner provided by the Environmental Conservation Law.

3. The materials at the Site found in rolloffs (or dumpsters), and in and around the building as described in the Findings were "solid waste" as defined by ECL 27-0701(1) and 6 NYCRR 360-1.2(a) because they had been discarded or rejected as being spent, useless, etc., to the owners at the time of such discarding.

Discussion:

This conclusion is based on the facts that materials were seen arriving at the facility in rolloffs or dumpsters (containers commonly employed in collecting discarded materials), and the appearance of the materials as shown in the photographs and described by witnesses. (See Findings 6, 7, 8, 11, 12, 14, 16.)

4. The activities which involved the wastes, as described in the Findings, constitute "solid waste management" as defined in ECL 27-0701(3) because (as described in greater detail under Conclusions 10 through 17 below) they involved the purposeful and systematic transportation, storage, processing, recovery and disposal of solid waste.

5. The building, addition, ramp, and the grounds at the site where wastes were present and solid waste management activities took place constitute a "solid waste management facility" as defined at ECL 27-0707 and 6 NYCRR 360-1.2(b)(145) because it is a facility employed beyond the initial waste collection process at which solid waste is managed (as described in greater detail under Conclusions 10 through 17 below).

6. Because the facility is a solid waste management facility, the Department has jurisdiction to enforce its regulations with regard thereto.

Respondent is the Responsible Party:

7. Where violations are found below, Respondent is the responsible party.

Discussion:

As shown by the Findings, the building was the focus of the solid waste management activities or operations described in greater detail below: most of the wastes were dumped, sorted, crushed and/or stored in piles there. The building conspicuously has Respondent's name on it -- clear indication that it is Respondent's facility, and Respondent controls what goes on inside. (See Finding 4.) The activities which occurred are consistent with Respondent's Certificate of Incorporation (Finding 3), and the statement of its activities contained in its permit application (Finding 2). Although Respondent has argued that other entities conduct activities at the Site, Respondent presented no evidence at all, permitting the tribunal to draw the strongest inference against Respondent that Staff's evidence will allow. Noce v Kaufman, 2 NY2d 347, 353 (1957). Staff's evidence supports a conclusion that Respondent is responsible for waste handling activities occurring in and around the building with Respondent's name on it.

Respondent has claimed that it has been "randomly selected" from numerous corporations at the Site to be the "scapegoat" for whatever took place. Mere non-enforcement against others similarly situated is not improper selective enforcement. Dimaggio v Brown, 19 NY2d 283, 291 (1967).

First and Sixth Causes of Action - Facility Construction:

8. Staff's First and Sixth causes of action, for constructing a solid waste transfer station and solid waste management facility without a permit, are not sustained because there was no allegation in the instant Complaint, nor proof at hearing, of facility construction during the effective period of the regulation charged, 6 NYCRR 360-1.7(a)(1)(i).

Second and Third Causes of Action - Operation of a Transfer Station:

9. Staff's Second and Third Causes of Action both essentially allege that Respondent operated a solid waste transfer station without a permit to operate, in violation of 6 NYCRR 360-1.7(a)(1)(ii). With some minor variances, the paragraphs of the instant Complaint cited by Staff under each of these causes are essentially the same. Because the Complaint does not explain why these causes should be different from each other, and because a significant difference is not clear from examining the varying paragraph citations therein, these causes are treated below as the same cause of action.

10. Respondent operated a solid waste transfer station as defined in the regulations.

Discussion:

As defined at 6 NYCRR 360-1.2(b)(157), "Transfer station means a solid waste management facility ... that can have a combination of structures, machinery, or devices, where solid waste is taken from collection vehicles and placed in other transportation units for movement to another solid waste management facility." The Findings show that waste was brought to the facility for sorting, etc., then was shipped from the facility in rolloffs to other locations (see Findings 2, 6, 11, 12, 14, 15). Transfer of solid waste was taking place.

11. Because a solid waste transfer station is defined to be a solid waste management facility, Respondent's operation of same without a permit to operate was a violation of 6 NYCRR 360-1.7(a)(1)(ii).

Fourth Cause of Action - Operation of a Processing Facility:

12. Respondent operated a solid waste processing facility as defined in the regulations.

Discussion:

As defined at 6 NYCRR 360-1.2 (b)(110), "Processing facility means a combination of structures, machinery, or devices ... utilized to reduce or alter the volume, or the chemical or physical characteristics of solid waste ..." The Findings show that waste was brought to the facility, dumped, and run over with a payloader which crushed the waste and condensed it -- i.e., reduced its volume. (See Findings 6, 11, 12, 16.)

13. Because solid waste processing is solid waste management (see Conclusion 4 above), Respondent's operation of a facility that processes solid waste without a permit to operate was a violation of 6 NYCRR 360-1.7(a)(1)(ii).

Fifth Cause of Action - Operation of a Recyclables Handling and Recovery Facility:

14. Respondent operated a solid waste recyclables handling and recovery facility as defined in the regulations.

Discussion:

As defined at 6 NYCRR 360-1.2(b)(121), "Recyclables handling and recovery facility means a solid waste management facility ... at which recyclables are separated from the solid waste stream or at which previously separated recyclables are collected." The Findings show that waste was brought to the facility and separated into various components (including, for example, recyclable metals) before being sent elsewhere. (See Findings 2, 3, 12, 14, 15.)

15. Because a solid waste recyclables handling and recovery facility is defined to be a solid waste management facility, Respondent's operation of same without a permit to operate was a violation of 6 NYCRR 360-1.7(a)(1)(ii).

Seventh Cause of Action - Operation of a Solid Waste Management Facility Prior to January 22, 1991:

16. Respondent operated a solid waste management facility without a permit to operate, prior to January 22, 1991, in violation of 6 NYCRR 360-1.7(a)(1)(ii).

Discussion:

Various statements in the record (Findings 2, 3, 9), as well as the existence of the large pile of waste in the building and the facility's obvious preparedness to receive and handle waste on January 22, 1991 (Findings 6 and 8), show that the solid waste management activities observed by DEC personnel at Respondent's facility on various dates in 1991 beginning on January 22, represented a course of conduct that commenced some time prior to January 22, 1991.

Eighth Cause of Action - Operation of a Solid Waste Management Facility Subsequent to January 22, 1991:

17. Respondent operated a solid waste management facility without a permit to operate, subsequent to January 22, 1991, in violation of 6 NYCRR 360-1.7(a)(1)(ii).

Discussion:

The existence of the large pile of waste in the building on all inspection occasions and the facility's obvious preparedness to receive and handle waste on February 12, June 26 and November 27, 1991 (Findings 11, 12, 14, 16, 18), statements made on July 8 and November 27, 1991 and records seen on July 8, 1991 (Findings 15 and 17) and the increase in amount of waste and the presence of waste in additional locations on November 27 over what had been there on July 8, 1991 (Finding 18), show that solid waste management activities were regularly conducted at times subsequent to January 22, 1991, at least through June 26, 1991, and including but not limited to the exact dates on which the solid waste management activities were observed.

Respondent's 3 Affirmative Defenses:

18. Respondent's First Affirmative Defense does not state an affirmative defense as alleged. An unexecuted agreement of settlement is a draft and settles nothing until signed by persons with authority to bind the parties.

19. Respondent's Second and Third Affirmative Defenses (DEC's alleged wrongful refusal/lack of action to issue a license to Respondent) do not state affirmative defenses as alleged. Respondent does not allege circumstances that would establish a right to a permit prior to the violating activities, nor circumstances which might authorize the violating activities pending the Department's determination of a permit application (such as those provided at 6 NYCRR 360-1.7(a)(2)(iv) for facilities which pre-existed the December 31, 1988 regulatory change which previously did not need a permit). Nor does Respondent allege any other circumstance which might authorize the violating activities without the need for a DEC permit.

Relief Requested - Cessation of Activities and Closure:

20. Because of the violation(s) found above, the Commissioner is authorized by ECL 71-2703 to issue the following orders requested by Staff:

(1) That Respondent immediately cease any and all activities associated with operation of a solid waste management facility at the Site, including cessation of any and all solid waste acceptance, storage, transfer, processing and recyclables handling at the Site.

(2) That Respondent prepare and submit to the NYSDEC for its approval within ten (10) calendar days after the date of issuance of the Order, a closure plan prepared in accordance with the requirements of 6 NYCRR Part 360, which plan shall provide for the completion of closure of the facility within forty (40) calendar days after the date of issuance of the Order. Respondent shall implement the closure plan in accordance with the schedule contained therein and any conditions of NYSDEC approval.

(3) That Respondent immediately provide payment to the NYSDEC of ten thousand dollars ($10,000) to fund an environmental monitor for the Site to ensure compliance with the Order, with the ECL and associated rules and regulations, including ensuring that facility operation has ceased and that closure is implemented in accordance with the approved closure plan.

Discussion:

Once a person has been found to have violated a provision of Titles 3 or 7 of ECL Article 27, or rule promulgated pursuant thereto (such as 6 NYCRR 360-1.7(a)(1)(ii) charged herein), "such person may ... be enjoined from continuing such violation..." as stated in ECL 71-2703(1). This clearly authorizes the relief requested at (1) above, since such would be a simple order to cease the violation, and also would authorize the relief requested at (2) for those aspects where a failure to close would constitute a continuation of the violation. With regard to the latter, Staff indicated at hearing (Transcript at pages 159-160) that it essentially wanted the wastes on Site to be removed. Since wastes remaining at the Site would constitute, at least, waste storage (a solid waste management activity per ECL 27-0707), maintenance of the wastes on the Site can be enjoined (i.e., waste removal can be ordered). The relief at (3) above, payment for an environmental monitor, is authorized by 71-2703(1) to the extent it is a necessary part of discontinuing the violation.

Relief Requested - Penalty:

21. Because of the violation(s) found above, the Commissioner is authorized by ECL 71-2703 to assess and order Respondent to pay a penalty of $113,500 (an amount based upon Staff's calculation which employed the statutory maximum penalty amount), because the violation(s) continued over a period of at least 111 days during the January 22, 1991 through June 26, 1991 time span.

Discussion:

Once a person has been found to have violated a provision of Titles 3 or 7 of ECL Article 27, or rule promulgated pursuant thereto (such as 6 NYCRR 360-1.7(a)(1)(ii) charged herein), such person "shall be liable for a civil penalty not to exceed two thousand five hundred dollars for each such violation and an additional penalty of not more than one thousand dollars for each day during which such violation continues ..." as stated in ECL 71-2703(1). Thus, under the statute, in order to calculate the maximum penalty that the Department has the authority to impose in a particular case, one must know (1) the number of separate violations and (2) the number of days that each violation continued.

In Staff's response to Respondent's interrogatory and the ALJ's direction that clarifying information be supplied, Staff wrote that "[t]he Department's claim for penalties of no less than $113,500 is based upon a calculation of the statutory maximum penalty of $2,500 for the initial violation documented on January 22, 1991 and $1,000 per day for continuing daily violations from January 23, 1991 through and including June 26, 1991, assuming five (5) days per week of operation by Respondent; that is one hundred eleven (111) days."

No determination is made of which type of solid waste management (under the regulations) occurred on which particular occasion, nor of whether or not the viable "causes of action" (all of which charge violation of the same regulation) present the same or severable violations, because Staff's response on penalty treats this matter as one violation (i.e., operation of a solid waste management facility without a permit) that occurred on January 22, 1991 and continued on additional days. The matter is treated in that manner here to be consistent with the form of the Amended Complaint as clarified by the response. The only element left is the number of days on which the violation continued.

Staff's assumption of five days per week of "operation" during the January 23 through June 26, 1991 period is not unreasonable in light of the evidentiary record as related in the Findings. Waste was seen being delivered on three occasions, January 22, February 12 and November 27 (Findings 6, 7, 11, 16), two of which were within the specified time period. Waste was seen being sorted and placed in a rolloff on June 26 (Finding 12). The payloader was seen operating on 4 of the 5 occasions inspections were made (Findings 6, 11, 12, 16). The presence and size of the pile of waste inside the building observed on every occasion that the Department's witnesses testified to and depicted in several photos (Findings 8, 11, 12, 14, 16, 18) makes it more likely than not that waste was being stored on the premises in the pile on an almost continuous basis. The existence and size of the pile of waste in the building and the facility's obvious preparedness to receive and handle waste on February 12, June 26 and November 27, 1991 (Findings 11, 12, 16), statements made on July 8 and November 27, 1991 and records seen on July 8, 1991 (Findings 15 and 17) (especially the statement that the facility received 7 to 8 containers of waste each day, and that specific waste components were transferred to other facilities (Finding 15)) establish that "solid waste management" occurred with regularity. Only for the July 8, 1991 inspection was the facility not receiving or processing waste, apparently having been "cleaned up" and quiet in anticipation of the Department's inspection because discussions had apparently begun on permitting the facility (Finding 14). All this makes it more likely than not that some aspect of solid waste management (waste storage at the very least) occurred on virtually a daily basis during the January 22 through June 26, 1991 period. Again, Respondent's failure to submit any contrary evidence in this regard permits the strongest possible inference to be drawn against it that Staff's evidence will allow. (Noce, supra).

No conclusion is reached with regard to the authority to assess a penalty for additional days of violation beyond the 111 cited in Staff's calculation. Since the legal authority to impose a penalty is premised on the number of days of violation, the complaint must at least state the number of days of violation for which a penalty is sought. Here the lack of a penalty request for a specified number of days in addition to the 111 cited in Staff's calculation appears to preclude imposition of penalties above the statutory maximum for 111 days as a matter of due process, since Respondent could argue that it did not know which or how many additional days it was going to be penalized for.

Indeed, Respondent actually has taken an even narrower position, arguing that the most it could be penalized would be for the statutory maximum applied only to the days the complaint said violations were observed. However, due process does not require such precision in administrative hearings. "[I]n the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him [cit. om.] and to allow for the preparation of an adequate defense [cit. om.]." Bloch v Ambach, 73 NY2d 323, 333 (1989). Bloch stands for the proposition that specific dates of alleged misconduct do not always have to be cited for proper notice to have been given, particularly for continuing offenses. In Bloch, the allegation that activities took place within a specific time period (as opposed to specific dates) was found to be sufficient notice. With regard to 111 days of violation alleged here, Staff cited a specific time period -- between January 22 and June 26, 1991.

Staff, while indicating in its response that it might want additional penalties (which would have to be for additional days of violation since its calculation was based on the statutory maximum), did not expressly ask for them, not even for the November 27, 1991 occasion cited in the complaint, an occasion on which the evidence shows Respondent clearly was conducting solid waste management activities. This duplicity is confusing, and confusion makes it doubtful that adequate notice was given for the purpose of assessing separate penalties for additional days of violation. Indeed, Staff counsel agreed (tr. p. 45) that no notice was given of specific violations prior to 1991. In an administrative proceeding, no person may lose a substantial right because of wrongdoing shown by the evidence but not specifically charged. Murray v Murphy 24 NY2d 150 (1969); see also Matter of Gelfand, 70 NY2d 211, 216 (1987). Bloch, above, establishes that notice must be sufficient enough to enable the preparation of a defense. Except for the July 8 and November 27 incidents mentioned in the complaint, it is not clear exactly what time periods and number of days of violation were in issue outside the stated "window." Without this information it would be difficult to prepare a defense. It's noted that because the complaint specifically mentioned July 8, 1991 observations, Respondent was given an opportunity to argue that it should not be held liable for operating on that date due to waste storage, because it had previously been served with the Cease and Desist Directive requiring stoppage of all work, preventing removal of the on-Site waste.

However, the fact that the complaint alleged generally that there was operation prior to January 22, 1991, and also alleged the November 27, 1991 incident, permits these matters to be considered as "background" information -- i.e., the conduct covered by the formal charges (covering January 22 through June 26, 1991) represented a course of conduct taking place over a larger time period. Penalty assessment may take into account "background" information that places formal charges in context. (See Marcus v Bamberger, 180 AD2d 533 cs 2 (1st Dept., 1992); cf Gelfand, supra.)

RECOMMENDATIONS

1. The Commissioner should uphold the ALJ's bench granting of a protective order to Respondent.

Discussion:

Although there were a number of reasons why the Respondent should be entitled to a protective order, the most important reason here is that the discovery sought by Staff was not shown to be "material and necessary" to the prosecution because it would not have achieved the objectives of "sharpening the issues and reducing delay and prolixity", Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406 (1968). Here it would have had the opposite effect. In its papers Staff essentially admitted that its investigation was incomplete when it initiated this proceeding, and that it was looking for evidence of additional violations. Staff requested documentation going back to 1980 (a time clearly predating the regulations charged in the complaint). Staff admitted that pre- 1991 charges were not specifically identified, thus they were not in issue (Murray, supra). Because the discovery sought was intended to uncover additional violations, it would have lead to an expansion of the issues, further complicating and delaying the proceedings, and required another amendment of the complaint to prosecute the additional violations.

Staff argues that the ALJ's ruling would interfere with the Department's ability to effectively enforce the law. This is not true. Since the discovery was intended to uncover additional violations, it is of a type normally sought under CPLR 3102(c), with court permission, before an action is commenced, to enable a viable complaint to be framed. See Taub v Home Ins. Co., 36 AD2d 592 cs 11 (1st Dept. '71). DEC hearing regulations, however, do not allow for pre-action discovery, probably because (unlike the average civil litigant under the CPLR), the Department has broad investigative powers that can be used to uncover violations before the complaint is filed. The ALJ's ruling does not prevent the Department from conducting its investigations, and did not prevent it from doing so here.

2. The Commissioner should find that Respondent violated 6 NYCRR 360-1.7(a)(1)(ii) by having operated a solid waste management facility (also qualifying as a processing facility, transfer station and recyclables handling and recovery facility) at 1345 Newbridge Road, North Bellmore, NY, without a permit, on at least 111 days during the period January 22, 1991 through June 26, 1991, plus an unspecified period prior thereto, and at unspecified times during a period thereafter up to and including November 27, 1991.

3. The Commissioner should Order that Respondent immediately cease any and all activities associated with operation of a solid waste management facility at the Site, including cessation of any and all solid waste acceptance, storage, transfer, processing and recyclables handling at the Site.

4. The Commissioner should Order that Respondent prepare and submit to the NYSDEC for its approval within ten (10) calendar days after the date of issuance of the Order, a closure plan prepared in accordance with the requirements of 6 NYCRR Part 360, which plan shall provide for the completion of closure of the facility within forty (40) calendar days after the date of issuance of the Order. Respondent should be required to implement the closure plan in accordance with the schedule contained therein and any conditions of NYSDEC approval.

5. The Commissioner should Order that Respondent immediately provide payment to the NYSDEC of ten thousand dollars ($10,000) to fund an environmental monitor for the Site to ensure compliance with the Order, with the ECL and associated rules and regulations, including ensuring that facility operation has ceased and that closure is implemented in accordance with the approved closure plan.

6. The Commissioner should assess and Order Respondent to pay a penalty of $113,500 within 60 days of receipt of the Order.

Discussion:

The specified amount is based upon the calculation provided by Staff to Respondent in response to its interrogatory. The calculation employed the statutory maximum penalty amount, and imposed the maximum for 111 of the days within the January 22 through June 26, 1991 period. Elsewhere in its response, Staff argued that it was appropriate to apply the statutory maximum amount because operation without a permit is considered a violation of primary importance to the regulatory scheme under the law, and because Respondent was notified on January 22, 1991 that it was operating in violation, therefore subsequent violations were knowing and intentional. Although in summation Respondent challenged the number of days of liability for violations, and offered an alternative calculation based on the statutory maximum and the number of days on which Staff witnesses actually made observations, Respondent offered no argument nor evidence indicating that it would be unfair to apply the statutory maximum, as opposed to a lesser amount, to those time periods where liability was established.

It is noted that Respondent clearly was operating on November 27, 1991, when it knew it was not supposed to be operating. Given such circumstance, Staff's rationale for applying the statutory maximum, the fact that the violating conduct clearly extended beyond the time period for which penalties are actually being imposed, and the lack of argument or evidence to show that applying the statutory maximum would be unfair, the $113,500 recommended amount is not "shocking" to one's "sense of fairness" and therefore not excessive in accordance with the standard set by New York Courts (see, e.g., Nino v Yonkers Central School Dist., 43 NY2d 865 (1978)).

Appendix:

A. Amended Complaint

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