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PGS Carting Company, Inc. - Order, November 21, 1994

Order, November 21, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violation of Articles 27 & 24 of the
New York State Environmental Conservation Law, and 6 NYCRR Part 360,

by

PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION,
JOSEPH PARZIALE and JOSEPH SPADA,
individually and as owners/principals of
PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION,
and AMITY DEVELOPMENT CORPORATION
and STEVEN W. SCHWARTZ,
individually and as President
of AMITY DEVELOPMENT CORPORATION

Respondents.

ORDER

Case No. 1-1603

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated August 8, 1989, following adjournments duly granted, an enforcement hearing was commenced before Administrative Law Judge ("ALJ") Frank Montecalvo on January 9, 1990, and continued December 18 and 19, 1990; February 5, 6, June 18, 19, 20, August 6, 7, October 1, 2, November 19 and 20, 1991; January 29, 30, March 11, 12, April 1, 2, 29, 30, August 4, 5, 1992; and July 12, 1994. The Department of Environmental Conservation (the "Department") appeared by John Byrne, Esq., Assistant Regional Attorney, and Carl G. Dworkin, Esq., Principal Administrative Litigator. The Respondents collectively appeared through Patrick Kevin Brosnahan, Jr., Esq.
  2. Upon review of the ALJ's Hearing Report (copy attached) and the record of this proceeding, I concur with its Findings and Conclusions which establish that during the March 13, 1986 through September 19, 1988 period, Respondents Bay Village Disposal Corp., PGS Carting Corp. and their owners/principals Joseph Parziale and Joseph Spada, operated a solid waste management facility at 47 Wellington Place, Amityville, New York, in violation of 6 NYCRR 360.8(a)(1), because measures were not taken to prevent solid waste from entering groundwater; and in violation of 6 NYCRR 360.8(a)(8), because operations were conducted in an open area without effectively controlling dust and odors, thereby constituting a nuisance and/or hazard to health, safety and property.
  3. I concur with the ALJ's Recommendations for disposing of these matters for the reasons discussed in the Hearing Report.

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

  1. Respondents Bay Village Disposal Corp., PGS Carting Corp., Joseph Parziale and Joseph Spada are hereby found to have violated former 6 NYCRR 360.8(a)(1)) and 360.8(a)(8).
  2. Respondents Bay Village Disposal Corp., PGS Carting Corp., Joseph Parziale and Joseph Spada are jointly and severally directed to pay a Ten Thousand Dollar ($10,000) penalty for said violations within 30 days of the date of service of this Order.
  3. Respondents Bay Village Disposal Corp., PGS Carting Corp., Joseph Parziale and Joseph Spada, plus Respondent Amity Development Corp. (as site owner), are directed to discontinue such violations if ongoing (which would include removal of waste materials lying on bare ground).
  4. All communications between Respondents and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 1 Headquarters, Building 40 - SUNY Campus, Stony Brook, NY 11790.
  5. The provisions, terms and conditions of this Order shall bind the aforesaid Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of said Respondents.

State of New York
Department of Environmental Conservation
_____________/s/_____________
LANGDON MARSH, COMMISSIONER

Dated: November 21, 1994
Albany, NY

TO: Patrick Kevin Brosnahan, Jr., Esq.
The 1826 House
73 West Main St.
Babylon, NY 11702

Carl G. Dworkin, Esq., Principal Administrative Litigator
NYSDEC
50 Wolf Road
Albany, NY 12233-5500

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings
50 Wolf Road
Albany, New York 12233-155

In the Matter

of

the Alleged Violation of Articles 27 & 24 of the
New York State Environmental Conservation Law and 6 NYCRR Part 360 by

PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION,
JOSEPH PARZIALE and JOSEPH SPADA,
individually and as owners/principals of
PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION, and
AMITY DEVELOPMENT CORPORATION and
STEVEN W. SCHWARTZ,
individually and as President of
AMITY DEVELOPMENT CORPORATION

Respondents

Case No. 1-1603

HEARING REPORT

-by-

____________/s/____________
Frank Montecalvo
Administrative Law Judge

PREFACE

The New York State Department of Environmental Conservation (the "Department" or "DEC") Region 1 Staff (the "Department Staff" or "Staff") initiated this proceeding by serving a Notice of Hearing and Complaint dated August 8, 1989 upon PGS CARTING COMPANY, INC., BAY VILLAGE DISPOSAL CORPORATION, JOSEPH PARZIALE and JOSEPH SPADA, individually and as owners/principals of PGS CARTING COMPANY, INC., BAY VILLAGE DISPOSAL CORPORATION, and AMITY DEVELOPMENT CORPORATION and STEVEN W. SCHWARTZ, individually and as President of AMITY DEVELOPMENT CORPORATION (the "Respondents"), alleging certain violations of Articles 24 and 27 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Part 360.

This case has been assigned to Administrative Law Judge Frank Montecalvo (the "ALJ") since its inception. Respondents have collectively appeared through Patrick Kevin Brosnahan, Jr., Esq.

DEC Staff has most recently, and for the bulk of the proceedings, appeared through Carl G. Dworkin, Esq., DEC Principal Administrative Litigator.

Following service of the Complaint, various proceedings took place which led to the ALJ issuing the Rulings/Order of Disposition and Interim Hearing Report ("Interim Report") of August 24, 1993 in response to Respondents' motion to dismiss. All of the proceedings through that date were recited in the Interim Report. The Interim Report annexed all previous rulings which acted as dismissals of certain causes of action subject to the Commissioner's ratification. The Interim Report recommended dismissal of the three charges that remained following the previous rulings. The Interim Report is hereby incorporated in its entirety into this Hearing Report as if fully set forth. The Interim Report appears below as an attachment.

RECENT PROCEEDINGS

In response to the Interim Report, on April 26, 1994 then acting Commissioner Langdon Marsh issued an Interim Decision and Order which reversed the ALJ's August 24, 1993 Rulings/Order of Disposition portion of the Interim Report to the extent it was inconsistent with the Interim Decision and Order, and remanded the matter to the ALJ for further proceedings consistent therewith. Essentially, the charge of operating a solid waste management facility ("SWMF") without a permit was dismissed, and the matter was remanded to further consider charges of not preventing solid waste from entering groundwater, and not effectively controlling dust and odors, as clarified by the Interim Decision.

On May 4, 1994, since most of the original charges were no longer viable, the ALJ directed Staff to recalculate and set forth the potential penalties for the remaining charges, and confirmed his understanding that Staff was seeking no monetary penalties for the period after September, 1988. The ALJ also directed Respondents to pre-file their evidence, in accordance with previously established ground-rules, by June 15, 1994 or 30 days from receipt of Staff's penalty recalculation, whichever occurred later. The hearing was tentatively scheduled to resume July 12, 1994, with the parties to advise the ALJ within 10 days if the tentative hearing dates were not practicable.

Staff's Penalty Calculation and Statement was received May 13, 1994.

By letter of June 1, 1994, the ALJ scheduled the hearing to resume July 12, 1994. With the letter, the ALJ enclosed an Affirmation which explained how this matter was scheduled and which requested that law courts not schedule a case for Respondents' counsel which would conflict with the hearing dates scheduled for this matter.

On June 23, 1994, the ALJ sent a letter to Respondents' counsel noting that Respondents' pre-filed case was due June 15, 1994, that nothing had been received from Respondents and that the matter had been scheduled for hearing on July 12, 1994. The ALJ requested to be notified if there was a problem. On June 24, 1994, Respondents' counsel requested a 90 day extension of the time to prefile its case and a 90 day adjournment of the hearing. On June 27, 1994, Staff opposed this request and requested that the hearing be declared ended. In a letter dated July 5, 1994, the ALJ denied both Respondents' and Staff's requests, finding no basis to award relief.

The hearing resumed July 12, 1994. No new evidence was placed on the record. Arguments on what the evidence proved and penalties were entertained. The record closed October 5, 1994 on receipt of the stenographic transcript.

THE CHARGES

Of the charges enumerated in the Interim Report, the following remain viable after the Commissioner's April 26, 1994 Interim Decision:

(II) [11] refers to paragraphs in the Amended Complaint On or about March 13, 1986, Respondents violated 6 NYCRR 360.8(a)(1)) {360-1.14(b)(1) eff. 12/31/88} by not preventing solid waste from entering groundwater. The "groundwater charge"

(III) [12] On or about March 13, 1986 Respondents violated 6 NYCRR 360.8(a)(8) {360-1.14(l) eff. 12/31/88}, by operating a solid waste management facility in an open area without effectively controlling dust and odors, thereby constituting a nuisance and/or hazard to health, safety and property. The "dust charge"

The above charges pertain to a Site (the "Site") located at 47 Wellington Place, Amityville, NY [ 7, 8]. The Amended Complaint also alleged that the above violations continued subsequent to March 13, 1986 [15]. By virtue of the January 29, 1992, agreement, occurrences post-dating September 19, 1988 are not in issue as a basis for liability. In addition, no penalties are sought for activities after September, 1988. Therefore, consideration of the remaining charges is limited to actions occurring on or before September 19, 1988, and, thus, to the "old" (pre-December 31, 1988) Part 360 regulations that were in effect at that time. By virtue of the Ruling of April 9, 1992, the presence of a "berm" was excluded from consideration as a basis for liability for charge II. By virtue of the Ruling of February 25, 1993, liability of respondent Schwartz is no longer under consideration.

RESPONDENTS' POSITION

Respondents claim that the Department made no prima facie case on the remaining charges.

Respondents argue they are entitled to a directed decision on the groundwater charge because the record contains no proof that solid waste actually entered groundwater. They contend that there is also no scientific support that leachate would have been produced by the contact of rain with the waste materials. They argue that if materials are removed from the ground quickly enough, there would be nothing left on the ground to produce leachate. They also argue that Staff did not prove that there was no pad under the ground's surface (contending that it was not Respondents' burden to show that there was a pad). They also argue that there was no proof of where groundwater was actually located. Respondents point out that Staff witness Farkas indicated that he didn't know whether or not any C & D residue ever entered the groundwater or ever could within a scientific period of time.

With regard to the dust charge, and noting that private nuisances are addressed by civil actions in court, Respondents argue that there is no proof that a public nuisance existed:

nothing to show there was a nuisance to health and safety and property -- no medical testimony -- nothing that would meet the standards required by tort law to reach the level of being a nuisance. Respondents claim that people being annoyed and/or uncomfortable is not sufficient proof of a nuisance: information on community standards is needed. Respondents note that dust was produced by the Long Island Railroad passing through the neighborhood. Respondents argue that Ms. Richardson's testimony was discredited. Respondents point out that Staff's witness Farkas testified that he didn't observe any harm or danger from dust; but that he did observe the Site being watered to keep the dust down.

Respondents note that the record contains no proof with regard to March 13, 1986 (the date specified in the charges) and no specifics on the dates and times when the dust problems occurred. Respondents argue that if such a record is sufficient to prove a violation, then it has been prevented from defending itself: How can proof be provided on what didn't happen on particular occasions? Respondent contends that the same argument applies to the groundwater charge as well.

Respondents argue there is no proof that material went into or out of the facility, thus no proof that a SWMF was being operated (which would mean no proof that the regulatory requirements are applicable).

With regard to Staff's penalty calculation and the gravity components, Respondents argue that Staff has not demonstrated any environmental harm whatsoever. They argue that there's been no proof that materials have been stored long enough to create leachate and have it dissolve into the ground and travel the distance to reach groundwater. Regarding dust, they argue that the only harm alleged is the inability of two witnesses to hang clothes outside, and Respondents' dispute such testimony. Respondents point out that the regulations do not specifically require a concrete pad, impermeable barrier, or an enclosure. They further contend that they had not been given actual notice in March 1986 that these things were required.

With regard to Staff's calculation of benefit components, Respondents point out that there is no evidence of the values Staff used in its calculations. Respondents also contend that the numbers are irrelevant because it wasn't established that the specific items are required.

Respondents argue that Staff shouldn't compare this case to Wayside Carting: that case involved operation without a permit, but no permit was required here. They note they were not supplied with copies of the other cases Staff cited, so they couldn't comment on them.

Overall, Respondents contend that the credibility of Staff's entire case is in issue. They argue that Staff knows there is no problem with dust, nor a problem with leachate entering the ground. They argue that Staff's delay in prosecution indicates the lack of severity of the underlying alleged problem or that there might not be an underlying problem. They note that the summons that was issued July 6, 1988 alleged operating a SWMF without a permit -- not leachate or dust violations. They note that their permit application has been pending since September 1988, and argue that if Staff were really concerned with leachate and dust, it would have processed the application to enclose the entire operation. They contend Staff knew or should have known there was no freshwater wetland and that Respondents' activities were exempt. Per the Commissioner's Interim Decision, Respondents never needed a permit at the time they applied for one. Respondents claim that the proceeding has been designed to penalize them for failing to sign Staff's consent order which would have basically had Respondents admit to the charges that have since been dismissed.

STAFF'S POSITION

Staff argues that it established the violations alleged in the remaining charges, and seeks $225,000 in penalties.

Staff contends that it only has to establish the lack of effective barriers to either the production or migration of leachate and dust to establish the remaining charges. It's Staff's opinion that here the facility required a concrete pad to protect against leachate, and a building to protect against dust, for it to comply with the regulations. On the groundwater charge, Staff argues that it does not have to show that leachate was actually produced and entered groundwater. On the dust charge, Staff contends that all it needs to show is that people were bothered and the nature of the nuisance.

Staff points to Exhibit 33 (the permit application) to establish that the facility was a SWMF and that operations were carried out without a pad.

Regarding penalty, Staff argues that it initially sought $250,000 based upon what it alleges to be Respondents' repeated and longstanding violations of 6 NYCRR Part 360 and their refusal to expend the money necessary to achieve compliance for approximately two and one-half years. The amount, which was for all charges including operation without a permit, was and is only a small fraction of the maximum penalty authorized by statute to be assessed. Staff argues that "considering the nature of the violations alleged, the portion of the sought penalty related to operation without a permit is appropriately far smaller than the portions for operating violations."

Based on ECL 71-2703's maximum penalty of $2,500 per violation plus $1,000 per day that each violation continues, Staff calculates that DEC is authorized to impose a penalty of $927,500 for each of the charges, for an authorized total of $1,855,000.

For the groundwater charge, Staff contends that a $100,000 gravity component and a $45,000 Staff's submitted penalty calculation appears to have exchanged the benefit components of the two remaining charges. This apparent typographical error is corrected here. benefit component could be applied. It based the former on the dumping and sorting of materials on the ground and leaving them overnight with the presumed impact of same on the groundwater. Staff stated it was unable to prove the production of leachate. Staff based the latter component on an assumed 10% rate of return on a presumed $180,000 cost to build a concrete pad.

For the dust charge, Staff contends that a $100,000 gravity component and a $50,000 benefit component could be applied. On the former Staff believes that the alleged dust and odor violations would support a penalty gravity component approaching the maximum, particularly since they could have been eliminated by the construction of the enclosure eventually proposed by Respondents. Staff claims that the facility was deliberately operated without the enclosure in knowing violation of applicable regulations. Staff based the latter component on an assumed 10% rate of return on a presumed $200,000 cost to construct a building to enclose the operations.

Staff contends that the penalties requested are consistent with those imposed by recent Commissioner's Decisions and/or Consent Orders. The Commissioner imposed $250,000 in MB Recycling Unlimited, Inc. (DEC Index No. R1-5206-92-11; August 2, 1993); and $616,000 in Matter of Ronald Edgar, et al. (DEC Index No. R1-4855-92-01; June 18, 1993). A Consent Order in Matter of Wayside Carting, Inc., et al. (DEC Index No. R1-4991-92; April 19, 1993), required Respondents to pay a $250,000 penalty, of which $150,000 was suspended.

Regarding its delay in processing the permit application, Staff argues that it is within its rights not to process the permit application, regardless of when an enforcement action is actually started, and points to the two and one-half years Respondents took to submit the application during which there was no barrier to leachate, no barrier to dust, and an economic benefit was obtained.

In light of the above, for the remaining two charges, Staff argues that it is justified in seeking 90% of the $250,000 it requested on the five original charges.

FINDINGS OF FACT

  1. This matter pertains to a parcel of property (the "Site") located at 47 Wellington Place, Amityville, New York, owned at the relevant times by Amity Development Corp. The Site is bordered by Wellington Place on the West, Lake Street to the East, and the Long Island Railroad to the North. Per Bay Village's consultant's report, submitted to DEC as part of a permit application pertaining to the Site Exhibit S-33, an application by Bay Village Disposal Corp. to construct and operate a Solid Waste Management Facility Materials Recovery Transfer Station, was received by the Department on November 21, 1988 (the "SWMF Application"). , the Site's soil drainage is predominantly well drained, the remainder being moderately well drained, and the depth to the water table is approximately 0 to 4 feet.
  2. During the relevant period (March 13, 1986 through September 19, 1988), construction and demolition debris was routinely brought onto the Site in bins ("dumpsters" or "rolloffs"). This material was dumped outdoors onto bare ground, and separated by hand into clusters of wood, concrete, scrap steel, corrugated cardboard, rubbish and aluminum. On one occasion, the sorting process was observed to have taken place in the rain. The materials were temporarily stored in bins until the bins were full, at which time they were sent to other locations. Some wood and concrete would be left on the ground overnight.
  3. During the 1986 and 1987 calendar years, scrap metal (ferrous) was sent to Demasco Steel, Inc. for recycling; cardboard and aluminum went to DeMatteo Salvage for recycling; wood went to Hubbard Enterprises to be burned to produce electricity; demolition debris (unusable wood and concrete) went to 110 Sand and Gravel Company for disposal in their landfill; and the remaining rubbish was disposed of at various landfills. Typically, up to approximately 35% by volume of the material which left the facility was destined to be recycled or burned to produce electricity.
  4. After sorting, material destined for the landfill was crushed by a bulldozer, reducing its volume. During operations, dust was generated by the bulldozer, trucks and employees. On unspecified occasions, dust was carried over neighboring properties. Two neighbors (Ms. Gruhn and Ms. Richardson) said that the dust limited use of their clotheslines, and that cleaned items (a car and furniture) would soon become dirty. One neighbor (Ms. Richardson) believed that dust from the Site caused allergic reactions and irritations to herself and her daughters who are allergic to dust.
  5. These operations were nominally carried out by Bay Village Disposal Corp. (of which Mr. Parziale and Mr. Spada were the only shareholders) under Mr. Parziale's supervision, except for transportation of materials, which was performed by PGS Carting Co. (of which Mr. Parziale and Mr. Spada were the only shareholders). Bay Village's SWMF Application, however, indicates that PGS employees (including 2 "owners/principals") manned the operation, and PGS owned and/or operated the equipment (bins/containers, trucks, front-end loader) that was used. The facility generally operated five days a week. It should be noted that the SWMF Application recounted existing practices, and proposed changes consisting of installation of a concrete tipping floor and enclosing the facility.

CONCLUSIONS OF LAW

  1. During the relevant period, a solid waste management facility (the "SWMF") was operated at the Site usually five days per week.
  2. As a SWMF, it was required to comply with the operating standards found in 360.8(a)(1) and 360.8(a)(8), regardless of whether or not it qualified for an exemption (Interim Decision, 4/26/94).
  3. Bay Village Disposal Corp. and PGS Carting Corp. carried out the waste handling activities with the participation of Mr. Parziale as supervisor, and Mr. Parziale and Mr. Spada as the only shareholders ("owners/principals") of those companies. These companies and persons are operators of the facility and thus are liable for the violations found below.
  4. Amity Development Corp. has not been shown to be an operator, thus it is not responsible for the operational violations found below. However, under 6 NYCRR 360-1.4(a)(1) [effective 12/31/88] in the manner discussed in the Matter of Krevolin Construction, Inc. and Rudolph J. Krevolin (Commissioner's Order dated 4/28/91, at 4), as the Site's owner it has responsibilities regarding future activities on the Site. Therefore, to the extent remediation is needed for the violations noted below (which would take place in the context of the current regulations), it may be held liable for the purposes of ensuring that the remediation is carried out (see ALJ Rulings 2/25/93, p. 5).
  5. During the relevant period, the SWMF was operated in violation of 6 NYCRR 360.8(a)(1) because measures were not taken to prevent solid waste from entering groundwater.
  6. During the relevant period, the SWMF was operated in violation of 6 NYCRR 360.8(a)(8) because operations were conducted in an open area without effectively controlling dust and odors, thereby constituting a nuisance and/or hazard to health, safety and property.

DISCUSSION

Violations

The materials that were handled at the Site (construction and demolition debris) and their containers ("dumpsters" and "rolloffs," containers commonly associated with collection and transport of solid waste), makes clear that the facility was handling "solid waste," the handling was "solid waste management," and the facility was a "solid waste management facility."

The SWMF was required to comply with the operating standards found in 360.8(a)(1) and 360.8(a)(8), regardless of whether or not it qualified for an exemption (Interim Decision, 4/26/94).

Section 360.8(a)(1) provides that "[s]olid waste shall not be deposited in, and shall be prevented from entering, surface waters or groundwaters." Per the Interim Decision, 4/26/94, "solid waste" includes "leachate." "Leachate" is "a liquid, including any suspended components in the liquid, which has been in contact with or passed through solid waste" (360.1(d)(41)). Given the foregoing, proof that solid waste actually entered groundwater is not required to establish a violation of 360.8(a)(1). All that needs to be shown are circumstances that would trigger a need for preventative measures. The possibility that liquid could contact solid waste and percolate down to the groundwater would be enough to show that preventative steps are needed. Here the waste was handled out in the open, exposed to the elements, on bare ground, over well drained soils, 0 to 4 feet above the watertable -- i.e., rain could contact the waste and percolate to the groundwater. Thus, the need for preventative measures has been established. The record shows no measures were taken, thus violation of 360.8(a)(1) has been established.

Section 360.8(a)(8) provides that "[v]ectors, dust and odors shall be controlled by effective means so that they shall not constitute nuisances or hazards to health, safety or property." Black's Law Dictionary (revised 4th Ed.) indicates that a nuisance is, among a number of definitions, "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ..." It also is "[t]hat which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him ..." The evidence establishes a violation of 360.8(a)(8), because the facility generated dust outdoors, which blew to neighboring properties, and interfered with the comfort of the occupants thereof.

Penalties

Presuming that penalties may be imposed on a daily basis for the entire time period under consideration, the penalties authorized by law far exceed the sum Staff is requesting.

The extent to which Respondents benefitted from these violations is unknown. Staff did not establish the values used to calculate the penalty benefit components because the values were presented as argument rather than as evidence. Assuming the presumed values for the concrete pad and building represent the actual cost of these items, it's not clear that they represent avoided costs: the regulations do not expressly require these facilities. In addition, the record suggests that less expensive means might achieve compliance (e.g. spraying to help control dust; not leaving materials on the ground overnight and not sorting materials in the rain to help prevent leachate formation).

How serious these violations were (the gravity component) is difficult to say. There is little evidence of actual harm in the record, and it has not been established that Respondents knowingly violated the regulations. The cases cited by Staff as examples of appropriate penalty determinations are not helpful in setting an appropriate penalty here, because all those cases involved operations without permits, and also because of the lack of detail in this record. The penalty imposed in M.B. Recycling was for operation without a permit, and thus is not comparable with this case. The penalty agreed upon in Wayside Carting was for an undifferentiated combination of operating without a permit and operational violations, thus it is not helpful. The portion of the penalty imposed in the Edgar matter for operational violations depended upon specific numbers of occasions of violations, a level of detail this record does not support.

The strongest evidence on the gravity of the dust violation came from the facility's neighbors. Dust clearly caused them inconvenience, which warrants a penalty. However, the lack of documentation (dates, times and places) of specific instances of the dust violation, and of alleged health effects, prevents assessment of just how serious the dust violation was. The lack of specificity also precludes any specific response from the Respondents. The degree of public opposition to the facility is not an indication of the gravity of the dust violation. The neighbors' annoyance at the facility did not come solely from dust, but from things having nothing to do with the violation: noise and traffic, their belief that the facility was illegal, and generalized concern over impacts to property values and the environment. Some of these things are not within DEC's jurisdiction to control; others may be within jurisdiction, but did not result in charges.

The strongest evidence of the gravity of the groundwater violation comes from the descriptions of the facility's waste handling activities, the conditions under which they were undertaken, and their physical relationship to the groundwater resource. Common sense should have indicated to Respondents that their waste management practices could lead to groundwater contamination, and that some steps were needed to prevent this from happening. Since no steps were taken, a penalty is warranted. Nevertheless, the lack of more specific information prevents assessment of just how serious this violation was. There is no evidence that the activities actually resulted in groundwater contamination. Also, since the waste was of a type usually subjected to a lesser degree of regulation (i.e., "C and D" debris), since most wastes were only on the bare ground during the sorting process, and since essentially only wood and concrete was left on the ground overnight, a potential for environmental harm is not clear (at least not on this record).

Weighing in their favor is Respondents' cooperation with Staff's insistence that wetland and Part 360 permit applications be submitted. Respondents attempted to do the right thing. Respondents applied to install the very structures that Staff now contends are required to address the dust and groundwater violations.

However, rather than approve the applications (which, per the Interim Decision, we now know weren't needed at the time) which would have allowed Respondents to take the preventative measures, Staff withheld processing the applications and insisted that Respondents sign a Consent Order to resolve the alleged violations of operating without permits (charges which have now been dismissed). From then on, communications between Respondents and Staff were difficult, with each party standing on its perceived rights. Protecting the environment seemed to have gotten lost. It was almost a year before Respondents were served with the Notice and Complaint herein.

There is no clear measuring stick for setting an appropriate monetary penalty for these violations given the wide range authorized by the statute and the lack of detailed information in the record. For this reason, Staff's penalty amounts are taken as a reference point.

To its credit in light of Respondents' application, DEC Staff no longer seeks penalties for the period of time after the permit applications were filed. However, it's noted that Staff now seeks $225,000 on two charges for the March 1986 through September 1988 time period, when it originally sought $200,000 (not $250,000) on five charges for March 1986 through August 1989 (the date of the original complaint; see original Complaint, Amended Complaint, and Ruling on Motion to Amend Complaint, Exhibits 1, 3 and 4). The charges that have been dismissed, and which combined are now evaluated by Staff as warranting $25,000 penalties, are operation of a SWMF without a Part 360 permit, construction of a berm and clearing vegetation without a freshwater wetlands permit, and constructing and operating a SWMF within a freshwater wetland in violation of 360-1.14(c)(4).

The dismissed charges appear to have been the most serious of the five original charges. As indicated by DEC's June 1990 Civil Penalty Policy, operating without permits is considered to be very serious because it deprives the Department of the opportunity to regulate an activity. Given that the most serious charges have been dismissed, that most of the charges have been dismissed, and that penalties are sought for a lesser time period, the requested penalties should have been substantially reduced from the $200,000 that was originally sought. Given their attempt to cooperate with the Department, the lack of clear and substantial financial benefit to them and the weak showing regarding gravity, Respondents appear to be primarily guilty of poor judgment in waste handling methods.

Given the competing equities of the situation, a penalty on the order of $10,000 appears to be appropriate for Respondents' poor waste handling practices.

RECOMMENDATIONS

It is recommended that the Commissioner find that Respondents Bay Village Disposal Corp., PGS Carting Corp., Mr. Parziale and Mr. Spada violated former 6 NYCRR 360.8(a)(1)) and 360.8(a)(8), direct said Respondents plus Respondent Amity Development Corp., to discontinue such violations if ongoing (which would include removing waste materials lying on bare ground), and assess a $10,000 penalty jointly and severally against Respondents Bay Village Disposal Corp., PGS Carting Corp., Mr. Parziale and Mr. Spada after considering the equities discussed above.

Attachment: "Interim Report" - Rulings/Order of Disposition and Interim Hearing Report dated August 24, 1993.

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