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Pedone, Jr., Angelo - Order, March 5, 1993

Order, March 5, 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 360 by

ORDER

Case No.

R4-1359-92-06

Angelo Pedone, Jr.

Respondent

WHEREAS:

  1. Pursuant to a Notice of Hearing and Motion for Summary Order dated July 6, 1992, and duly served on July 9, 1992, an enforcement hearing was held before Administrative Law Judge ("ALJ") Frank Montecalvo on July 30, 1992 and November 5, 1992. The Department of Environmental Conservation Staff ("Staff") appeared by Richard Ostrov, Esq., Assistant Regional Attorney. The Respondent Angelo Pedone, Jr. did not appear on the first date; then appeared by Young, Stockli & Rowe (Kristin Carter Rowe, Esq., of counsel) on the latter date.
  2. The ALJ partially granted the Staff's motion for Summary Order, in a ruling dated October 5, 1992, which established certain facts and determined Respondent's liability for all of the violations alleged by the Staff in its Notice of Hearing and Motion for Summary Order. A date was then established to hear issues related to penalty and other relief.
  3. Upon review of the ALJ's Hearing Report (copy attached) and the record of the proceeding, I concur with its findings related to the establishment of Respondent's liability. As set forth below, I differ with its findings of fact, conclusions of law and recommendations which relate to the issues of penalty and other relief.
  4. I reject the ALJ's finding of fact #10, wherein he concluded, among other things, that the record does not demonstrate a potential adverse impact of significance associated with the violation in question. The record shows that the facility is located over a sole source aquifer which, in and of itself, supports a finding that there are potential adverse environmental impacts.
  5. It is illogical for the ALJ to take inferences about the safety of the landfill's operation from the fact that the Department issued a permit for its operation while at the same time ignoring the fact that a court issued an order requiring the cessation of operations and that the Department issued an order which required the closure of the landfill prior to the expiration of the permit.
  6. The ALJ's finding that the potential environmental impacts associated with the violation are indistinguishable from those that would have been associated with the permitted activities has no support on the record and is therefore rejected. The acceptability of the potential impacts of operating the landfill at this location was premised on the Respondent's compliance with all the terms of his permit. Presently, the landfill is essentially in an abandoned state without benefit of the care that it would be afforded if the permit conditions were being faithfully implemented.
  7. The record further demonstrates that the Respondent's lack of fiscal resources and consequent inability to properly care for the landfill makes it far less likely that he will be able to carry out the terms of the permit which are necessary to protect the aquifer and therefore, I conclude that the landfill represents a potential threat to the aquifer.
  8. I also reject the ALJ's conclusion that Respondent's delay in complying with his responsibilities under the January 1991 Order on Consent (the "Consent Order") resulted in no economic benefit to him. There is no basis in the findings of fact to conclude, as did the ALJ, that the Respondent could not have borrowed the funds necessary to prepare the Site Investigation Report. The Respondent presented no proof showing that he had even attempted to borrow funds needed to comply with the consent order, much less that he had been refused such funds. However, even if the Respondent had no access to funds whatsoever, the ALJ's conclusion ignores the time value of money caused by inflation.
  9. Further, contrary to the ALJ's finding, I accept the Staff's use of a 10% discount rate. The rate provides a reasonable estimate of Respondent's economic gain given the prevailing interest rates that affect borrowing (e.g., the prime rate) and the statutory rate for the payment of interests on judgments (see CPLR 5004). Judicial notice may be taken of both of these rates. Moreover, the use of this rate was not challenged by the Respondent. The ALJ's challenge to this rate in the absence of any such objection by the Respondent and without notice to the Staff fails to comport with the normal due process afforded to parties and effectively places the ALJ's objectivity into question.
  10. I find ALJ Montecalvo's conclusion that the Department has no authority require a performance bond for the required work to be inconsistent with and contrary to the intent of the law. The purpose of applicable section of law, 6 NYCRR 360-1.12, is to authorize the Department to require financial security to insure compliance with the terms and conditions of solid waste management facility permits. Here, the Respondent's permit obligations have been modified by a court order which required the cessation of operations and a subsequent Department consent order which established an orderly process for facility closure. The relief requested is entirely consistent with the use of the above cited provision and merely updates the surety requirement in light of the modification to the Respondent's obligations which occurred subsequent to permit issuance.
  11. Although the record demonstrates that the Respondent's financial resources are limited, I cannot conclude that his current income of over $40,000 is so insubstantial as to defer imposition of a civil penalty for the violations committed.
  12. However, given the limitation of Respondent's fiscal resources and the threat to the environment which this site poses, it is essential to structure the relief in a manner that will balance environmental protection with the need to impose a sanction for failure to comply with Respondent's obligations under the Consent Order.

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

  1. Respondent Angelo Pedone, Jr. is found to have violated the terms of the Consent Order by not having completed the site investigation and submitted the site investigation report within the time frame set forth in the Consent Order's Schedule of Compliance.
  2. Respondent is directed to complete the site investigation and submit the site investigation report to the Department with thirty (30) days of the service of a conformed copy of this Order on Respondent.
  3. Respondent is ordered to comply with paragraphs 5, 6 and 7 of the Consent Order's Schedule of Compliance
  4. In consideration of the above violations, Respondent is assessed a civil penalty of FORTY THOUSAND DOLLARS ($40,000). Of this penalty, TEN THOUSAND DOLLARS ($10,000) shall be due and payable sixty (60) days after the service of a conformed copy of this Order on Respondent. The remaining THIRTY THOUSAND DOLLARS ($30,000) shall be suspended on the condition that Respondent fully complies with the terms of this Order.
  5. The Respondent shall provide the Department with a financial security instrument, acceptable to the Department in both form and amount, which shall insure the completion of all outstanding requirements of the Consent Order's Schedule of Compliance and of this Order.
  6. This terms, provisions and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and persons, firms and corporations acting for or on behalf of the Respondent.
  7. All communications between the Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 4 Headquarters, 2176 Guilderland Avenue, Schenectady, N.Y. 12306.

Albany, NY
March 5, 1993

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

TO: Angelo Pedone, Jr. VIA CERTIFIED MAIL W/RETURN RECEIPT
84 Ashdown Road
Ballston Lake, NY

Richard Ostrov, Esq., Assistant Regional Attorney
NYSDEC Region 4 Headquarters
2176 Guilderland Avenue
Schenectady, NY 12306

Young Stockli & Rowe
Two Palisades Drive
Albany, NY 12205
attn: Kristin Carter Rowe, Esq. and Kevin Young, Esq.

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

Angelo Pedone, Jr.

Respondent

Case No. R4-1359-92-06

HEARING REPORT

-by-

____________/s/____________
Frank Montecalvo
Administrative Law Judge

PROCEEDINGS

Pursuant to a Notice of Hearing and Motion for Summary Order dated July 6, 1992, and duly served on July 9, 1992, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 4 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 Angelo Pedone, Jr. (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 Parts 360.

In accordance with the Notice of Hearing, an adjudicatory hearing was convened before Administrative Law Judge ("ALJ") Frank Montecalvo at 9:00 AM on July 30, 1992 at NYSDEC Region 4 Headquarters, 2176 Guilderland Avenue, Schenectady, NY 12306. Richard Ostrov, Esq., Assistant Regional Attorney appeared on behalf of the Department Staff. Respondent did not appear. As of that date, Respondent had not yet filed an Answer. Staff moved for an order based upon the papers submitted with its Motion for Summary Order (specifically, the affidavits of Josephine Peconie and Richard Forgea). The ALJ directed Staff to submit an Affidavit of Service to establish that the papers had been properly served. The hearing was then adjourned.

Department Staff submitted the Affidavit of Service on July 30, 1992.

On August 19, 1992, Respondent appeared through counsel, Whiteman, Osterman & Hanna (Kevin M. Young, Esq., of counsel), by submission of the affidavits of Kevin M. Young and Peter Sutherland in opposition to the Motion for Summary Order. In Mr. Young's letter of transmittal dated August 17, 1992, he requested that Respondent be granted an extension of time to make the enclosed response due to circumstances related in the affidavits.

By letter dated September 2, 1992, the ALJ gave Staff 10 days to oppose Respondent's request for an extension, and stated that if Staff agreed to the extension or did not express opposition thereto, Respondent's answering affidavits would be considered to have been timely filed, and the parties would be advised accordingly.

Staff did not oppose Respondent's request for an extension.

On October 5, 1992, an Order was issued, based on the aforementioned pleadings, which established certain facts (recapitulated as Findings 1-7, herein), Respondent's violation of a Consent Order (recapitulated as Conclusion 1 herein), as well as Respondent's non-entitlement to certain claimed defenses (Conclusion 2), and set for trial the outstanding matter of penalty and other relief for the violation.

Following an adjournment and the filing of pre-filed testimony by Staff, both of which were agreed upon by the parties, the matter of appropriate penalty and relief came on for trial on November 5, 1992. Richard Ostrov, Esq., Assistant Regional Attorney again appeared on behalf of the Department Staff. Young Stockli & Rowe (Kirsten Carter Rowe, Esq. of counsel) appeared on behalf of Angelo Pedone, Jr. Staff presented as its sole witness, Richard Forgea. Respondent presented Peter T. Sutherland as a witness, and also testified in his own behalf. Testimony concluded on that date. Closing arguments were set forth on the record. The record closed November 23, 1992 upon receipt of the stenographic transcript.

SUMMARY OF STAFF'S POSITION ON RELIEF

In its original pleadings, Staff requested an Order directing Respondent to:

  1. Complete the site investigation and submit the site investigation report to the Department within 30 days of the Commissioner's Order herein and comply with paragraphs 5, 6 and 7 of the Consent Order's Schedule of Compliance.
  2. Pay an administrative penalty in accordance with Section 71-2703 in the sum of Forty-Five Thousand Dollars ($45,000.00); and
  3. Deliver a Letter of Credit or Bond to the Department for $837,700 for completion of all outstanding requirements of the Consent Order's Schedule of Compliance leading to and including the proper closure of the site; and to undertake such other remedial action as ordered by the Commissioner.

Staff notified Respondent that the penalty would be sought under the provision of ECL 71-2703 which authorizes penalties of $2,500 for each violation and $1,000 for each day that the violation continues.

At hearing, Staff modified the penalty request to $40,000, and the bond amount to $220,000.

Consistent with the Department's June 20, 1990 Civil Penalty Policy ("CPP"), Staff seeks "to remove any economic benefit that results from a failure to comply with the law" including "the benefits of delayed and avoided costs ... to arrive at amounts equal to the economic benefit of non-compliance for the period from the first provable date of violation until the date of compliance" (CPP, pp 3 and 5 of 15). In addition, Staff seeks a penalty that adequately accounts for the "gravity" of the violation, i.e., "(a) potential harm and actual damage caused by the violation; and (b) relative importance of the type of violation in the regulatory scheme" (CPP, p 7 of 15).

Staff claims that the cost associated with preparation of the Site Investigation Report was an avoided cost; that said cost would be $48,000; that payment of said amount was been delayed by 10 months; and, therefore, based on a "Simple interest rate of 10%", Respondent derived a $4,000 economic benefit.

Staff claims that the cost associated with preparation of a Closure and Post Closure Plan would amount to approximately $35,000, and the cost of actual closure construction and certification would be $137,000. Combined with its $48,000 estimated cost for the Site investigation, Staff claims Respondent's total avoided costs to be $220,000.

Staff believes its enforcement efforts in similar cases (four are pending) would be adversely affected by any failure to address Respondent's violation here.

Staff argues that the CPP provides for imposition of a minimum monetary penalty equivalent to the total economic benefit (here, believed to be $4,000) plus a gravity component reflecting the potential and actual harm to the environment. Since the landfill here is over a sole source aquifer, Staff alleges that potential damage would be significant. Staff expects a failure to complete closure (leachate collection and capping) would compound such impacts due to continued discharge of surface and subsurface leachate. Staff argues for a $36,000 gravity component (based on $125 per day (out of the $1,000 per day statutory maximum) for the 288 day failure to submit the investigation report), for a total civil penalty of $40,000. Staff claims that other factors such as prior history, cooperation, culpability and ability to pay here provide no basis for adjustment.

Staff requests that the estimated $220,000 avoided costs be assessed as a suspended penalty or a bond requirement.

SUMMARY OF RESPONDENT'S POSITION ON RELIEF

Respondent argues that economic benefit to the violator, the violator's culpability, the ability to pay a penalty, and potential or actual harm to the environment, are among the factors considered under the CPP for determining an appropriate penalty. Respondent contends he did not act with intentional disregard for the consent order, nor with other malintent. Rather, his inability to strictly comply with the compliance schedule was due to a precarious financial condition beyond his control which caused him to be unable to pay for the services necessary to strictly comply with the consent order.

Respondent alleges he accrued no economic benefit from not complying because he cannot earn interest on money he doesn't have. If anything, respondent suffered because his inability to pay his consultant has resulted in unpaid bills accruing interest.

Respondent claims there is no significant environmental threat posed by the landfill. There is no vector problem, no explosive gas, no surface leachate, and no evidence of anything other than C & D material being deposited on the site. DEC has explicitly declined to classify the site as an inactive hazardous waste site.

Respondent claims he is financially unable to pay the significant penalty being sought -- a $40,000 penalty plus a $220,000 bond for a total of $260,000 penalty. In 1991 Respondent made less than $20,000. In 1992 he has earned $800 per week, making a 1992 income of slightly over $40,000. The penalty would be equal to his yearly income and the bond would be over 5 times that amount.

Respondent argues that DEC does not have the authority to require the posting of a bond. The surety authority is outlined in Part 360-1.12 which provides that in certain circumstances the Department can require the posting of a bond. Those circumstances (such as the issuance of a permit) do not exist here. Respondent's permit already requires a surety of $7,000 -- which is no where near the $220,000 now being requested.

Respondents believe that the penalty being sought is not warranted, and that if any penalty is assessed it should be significantly lower.

FINDINGS OF FACT

[Findings 1-7 are based exclusively on the ALJ's Order issued October 5, 1992, for the reasons stated therein.]

  1. In 1988, the DEC issued to Respondent, Angelo Pedone, Jr., a new permit No. 41-86-0238 to construct and operate a 7 acre demolition waste landfill ("the landfill") in the Town of Glenville, Schenectady County, NY, pursuant to ECL Article 27 Title 7; and 6 NYCRR Part 360.
  2. On or about April 15, 1989, operation of the landfill ceased pursuant to a Court Order obtained by the Town of Glenville.
  3. In January, 1991, Respondent and the DEC entered into an Order on Consent ("Consent Order") which required Respondent to close the landfill in accordance with a schedule. The schedule required Respondent to submit to DEC a site investigation work plan (the "investigation work plan"), a site investigation report (the "investigation report"), and closure plans (the "closure plans"), with each submission subject to DEC approval.
  4. Pursuant to the Consent Order, Respondent submitted the investigation work plan which, after making DEC requested revisions, received DEC approval on June 13, 1991.
  5. The site investigation was to be comprised of four main items: 1. Hydrogeological Investigation and Monitoring; 2. Explosive Gas Investigation and Monitoring; 3. Surface Leachate Investigation; and 4. Vector Investigation.
  6. Paragraphs 2 and 4 of the Consent Order's schedule required the site investigation work to commence within 30 days of the Department's approval of the investigation work plan, and required the site investigation work to be completed, and the investigation report to be submitted, within 180 days of commencing the site investigation work.
  7. As of August 14, 1992, no investigation report had been submitted to the DEC; and sampling and testing of 3 groundwater monitoring wells, gas sampling, and a vector investigation had yet to be completed.
  8. Respondent's permit became effective September 30, 1988. It will expire September 30, 1993. It requires permittee to maintain $7,000 in a special account until the Department approves release of the funds following receipt of an engineer's certification that closure has been completed in accordance with the approved closure plan.
  9. The subject landfill herein has a 2 acre "footprint" and the available information indicates it only contains construction and demolition (C & D) debris.
  10. No actual or potential adverse impact of articulable significance has been associated with the conduct constituting the violation thus far (Respondent's not having completed the site investigation and/or not having submitted the site investigation report per the Compliance Schedule).

    Although Respondent's failure to move expeditiously in taking the preliminary steps to close the facility may result in the landfill being exposed to the elements for a longer period than was anticipated at the time the Consent Order was signed, the significance of Respondent's delay thus far is not apparent.

    Staff contends that potential damage would be significant because Respondent's failure to complete closure (leachate collection and capping) would allow the subject landfill to discharge surface and subsurface leachate over a sole source aquifer. Staff failed to explain how this is different from what would have occurred had the landfill continued to operate pursuant to its permit (which allows a larger landfill to be operational through September, 1993). Other than noting the landfill's presence over the aquifer, Staff offered no site specific information (such as tests of leachate quality, estimates of leachate production and what such might do to water quality) to substantiate or add dimension to its contention. Also, Staff's position assumes that leachate collection ultimately will be required -- this was not expressly agreed upon in the Consent Order, and apparently was not a requirement of Respondent's permit.

    Respondent's consultant's testimony, based on the as yet unreported results of the site investigation, essentially indicates that, in spite of the detection of some ground water contamination at the landfill site, the landfill itself is not posing an environmental problem Regarding the detection of ground water contamination in excess of "MCLs," the Site was not thought to be causing a problem because almost all of the parameters exhibiting MCL accedences downgradient of the Site also exhibited accedences in the "background" well, upgradient of the Site (i.e., water entering the Site was already contaminated).. While the accuracy of this assessment is open to question, particularly because test results have yet to be scrutinized by Staff, it at least purports to be based upon some site-specific data from the landfill, rather than mere assumptions. Staff offered no rebuttal. Assuming, arguendo, that actual or potential contamination or other adverse environmental impacts may be associated with this 2 acre landfill's presence, the record still does not contain enough information to permit an inference that such impacts would be qualitatively or quantitatively worse than those which could be expected from the original project Staff permitted.

  11. Estimates of the cost to close the facility are speculative because what the Department ultimately will be able to require of Respondent is unknown at this point. The most conservative estimate based on the record is $84,000 in addition to the efforts made thus far.

    Respondent's consultant presented cost estimates of $14,500 for the site investigation and report ($11,500 of which represents work already performed and billed), $10,000 for the closure/post closure plan, and $71,000 for the closure construction and certification -- resulting in the $84,000 estimate for future work noted above. Staff's estimates are considerably higher (in the range of $220,000), however, they appear to be inflated given the fact that the actual costs coming in for the site investigation portion are well below Staff's $48,000 estimate for such work.

  12. Respondent's consultant stated that the site investigation has been completed. He estimated that it would take two weeks' work and $1,500 to complete the Site Investigation Report.
  13. As of the hearing date, Respondent had paid the consultant $6,000 and still owed from $3,000 to $5,000.
  14. Respondent is employed by New York Environmental Recycling, Inc. (NYERI) as its President, and by Waste Systems of New York, Inc. (WSNYI) as its General Manager (as of January 1, 1992). His total net weekly pay from these employers is approximately $800. "Year to date" figures from recent paycheck stubs indicate Respondent is expected to earn roughly $61,000 gross income, or $42,000 net of deductions, for 1992. The only "perk" Respondent receives as President of NYERI is the use of a 1985 Bronco and his daily expense for gas etc. (but not an expense account).
  15. Respondent owns no stock, nor bonds, nor savings accounts, nor does he have a checking account, nor does he own any such items jointly with his wife. He owns no car. He does not own a house. (He lives in a house he leases from his mother for $900 per month.) He has absolutely no tangible items of any value.
  16. Respondent is married. He turns his paycheck over to his wife, who has a checking account, who pays household expenses from it. The current balance of his wife's checking account was estimated to be two or three hundred dollars. His wife is not employed by either NYERI or WSNYI. His wife has a savings account, to which Respondent has not contributed, either directly or indirectly. It is unknown if his wife is employed or if she has any income.
  17. In 1991 Respondent's total income was approximately $17,000. Respondent's tax records indicate NYERI was the sole source of this income. Respondent's 1991 tax filing status was single. Respondent's family assisted him to support himself.
  18. In 1990 Respondent's income was less than $7,000. Respondent was single at the time. In 1990 he was sole owner of A-1 Waste Service, which went into bankruptcy (Chapter 11 Reorganization) in January 1991. That company had been in business for three years and produced limited income. Currently it owns no property and only two trucks (vintage 1975 and 1977).
  19. Between 1988 when Respondent received his permit and 1992 the date of hearing, Respondent did not transfer ownership of any bonds, stock, contents of savings accounts, or interest in any financial assets whatsoever.
  20. The majority stockholders of NYERI are Respondent's father and uncle. NYERI loaned Respondent funds for the purposes of paying Smith and Mahoney (Respondent's consultants) and Respondent's attorneys in relation to the subject Consent Order. NYERI extended the loan based on Respondent's perceived ability to increase company business to maximum capacity. Respondent has never had loans in the past forgiven by his father or uncle.
  21. Given his 1991 income, the 1991 bankruptcy of his company, his 1990 income, the premature closing of the subject landfill, and his general lack of assets, Respondent did not have adequate financial resources to have the site investigation and site investigation report completed in a timely fashion.
  22. Respondent's resources for paying a penalty are limited to his current income, and limited by his past debts for remedial work already performed and future expenses for closure.

CONCLUSIONS OF LAW

[Conclusions 1 and 2 are based exclusively on the ALJ's Order issued October 5, 1992, for the reasons stated therein.]

  1. Upon the facts recited above, Respondent is found to have violated the Consent Order, entitling the DEC to penalties and other relief for such violation.
  2. Respondent has no defense to the above-stated violation.
  3. Based on Findings 4, 6 and 7, Respondent has been in violation of the Consent Order at least since mid-January, 1992.
  4. The Department is authorized to require Respondent to (a) complete the Site Investigation, (b) submit the Site Investigation Report to the Department within 30 days of the Commissioner's Order herein, and (c) comply with paragraphs 5, 6 and 7 of the Consent Order's Schedule of Compliance, because such actions are within the requirements of the existing Consent Order to which the Respondent agreed.
  5. The Department is authorized to require Respondent to pay the requested administrative penalty of Forty Thousand Dollars ($40,000) by ECL 71-2703 (which authorizes penalties of up to $2,500 for each violation and up to $1,000 for each day that the violation continues) because Respondent violated the Consent Order, and the violation continued from at least mid-January 1992 through the date of the hearing, a time period exceeding 40 days.
  6. Authority for the Department to require Respondent to Deliver a Letter of Credit or Bond to the Department for $220,000 for completion of all outstanding requirements of the Consent Order's Schedule of Compliance leading to and including the proper closure of the site has not been established.

    Authority to impose the bond requirement is not among the items listed in 71-2703, nor is it found in the Consent Order. Staff pointed out no other legal authority that would authorize imposition of such a requirement.

    The Department has already exercised its authority to require a bond by requiring Respondent, through Respondent's permit, to post $7,000 surety. Assuming arguendo that Staff provided sufficient notice to Respondent that it intended to modify this permit condition, its evidence did not demonstrate the change in circumstances needed to justify the modification, because it did not explain why only $7,000 was originally required to ensure closure of a proposed 7 acre landfill, and $220,000 is wanted now for a 2 acre landfill. (As noted in the Findings, the $220,000 estimate appears inflated).

RECOMMENDATIONS

  1. The Commissioner should find that Respondent violated the terms of his Consent Order by not having completed the site investigation and submitted the site investigation report within the time frame set forth in the Consent Order's Compliance Schedule.
  2. The Commissioner should Order Respondent to (a) complete the Site Investigation, (b) submit the Site Investigation Report to the Department within 30 days of the Commissioner's Order, and (c) comply with paragraphs 5, 6 and 7 of the Consent Order's Schedule of Compliance.

    Although this provision would be redundant to what is already in the Consent Order, it will provide a reference point for finding future violations, if any occur.
  3. The Commissioner should assess a penalty of $2,500, payable within 90 days.

The unique circumstances of this case indicate that a penalty substantially smaller than the authorized penalty, and a delayed payment, is appropriate. Among those items the Civil Penalty Policy indicates should be considered are (a) excusability, if any, of the violation, (b) cooperation, (c) financial benefit to Respondent from the violation, (d) actual damage and potential environmental harm that could result from the violation, and (e) Respondent's ability to pay a penalty.

Here, as recapitulated in Finding of Fact 21, Respondent's long term precarious financial condition prevented him from complying with the Compliance Schedule's time frame. Respondent could not comply with the schedule he committed himself to because he did not have the money to pay for the services the schedule required. There is no indication that he intentionally placed himself in this financial position. The obvious source of income to cover closure costs was unforeseeably cut off when the landfill was shut down by court order in 1989. The cost of the site investigation alone will far exceed the surety that the Department required of Respondent in his permit.

Respondent appears to have proceeded in good faith by submitting and gaining DEC approval of the site investigation work plan in a timely fashion in June, 1991. Respondent used his personal connections to borrow funds to accomplish the work that has been done thus far. He clearly was trying to fulfill his obligations as best he could.

It is doubtful that there was any economic benefit to Respondent's delay. Staff's argument that Respondent's delay saved him the cost of borrowed money, and/or could have earned him interest on money not spent, assumes that Respondent has the ability to borrow the cost of the project, that the payoff period for any borrowed money would be shortened by the period of delay, that cash flow not used to pay for borrowed money was used elsewhere to produce an economic benefit, and/or that Respondent has money in the bank. Such assumptions are not supported by this record.

The existence of an unclosed "C & D" landfill -- particularly one over a drinking water aquifer -- raises concern that there is potential for harm. However, as stated in Finding of Fact 10, no actual or potential adverse impact of articulable significance has been associated with the conduct constituting the violation thus far (Respondent's not having completed the site investigation and/or not having submitted the site investigation report per the Compliance Schedule). Information on the "amount and degree" of various parameters is necessary to evaluate the gravity or seriousness of the violation (see CPP, p 7). The record contains no measure of potential harm or actual damage to the resource such as the amount and toxicity of pollutants released to the environment, and/or the amount and degree of actual or potential damage to natural resources. In addition, since the subject landfill was located over the aquifer pursuant to a DEC permit, the record would also have to contain enough information to enable the impacts of the violation to be distinguished from the impacts of the authorized activities -- to ensure that penalties are not exacted for authorized activities.

Most critical to the assessment of penalty here is the fact that Respondent's resources to pay a penalty are limited to his income (approximately $800/wk. take home) - out of which Respondent must pay the $3,000 to $5,000 currently owed to his consultant, the unspecified amount owed to his employer, the $1,500 for completion of the Site Investigation Report, and future costs to complete closure ($84,000 current, conservative estimate), on top of normal living expenses. Imposing more than a nominal penalty here -- enough to remind Respondent that compliance is important to the regulatory scheme and cannot be indefinitely postponed -- could interfere with the ultimate closure of the landfill.

For these reasons, the above stated penalty is recommended.

Appendices: None

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