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Presto, Timothy - Order, September 24, 1993

Order, September 24, 1993

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations
of Environmental Conservation Law of
the State of New York Article 27 and
Title 6 of the Official Compilation
of Codes, Rules and Regulations of
the State of New York §360-1.5(a)(2)
by

TIMOTHY PRESTO
123 Oak Avenue
Matamoras, Pennsylvania 18336

RESPONDENT

ORDER
DEC CASE No.
R3-1861/9001

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint duly served on Timothy Presto, Administrative Law Judge Daniel P. O'Connell presided over an enforcement hearing on April 26, 1990 at the New Paltz Town Hall. Jonah Triebwasser, Esq., Senior Attorney represented the Region 3 Staff of the Department of Environmental Conservation (the Department). The Respondent did not answer the Complaint, appear at the April 26, 1990 hearing, or reply to an offer to re-open the record of the hearing.
  2. Upon a careful review of the record of this proceeding and the attached Hearing Report prepared by Administrative Law Judge O'Connell, I concur with his Findings of Fact, Discussion, Conclusions and Recommendations subject to my comments below.
  3. The car parts, tires, bed springs and antifreeze containers deposited on the Site on August 11, 1989 are solid waste as defined in 360-1.2(a).
  4. The record shows the Respondent disposed of these materials on the Site. Furthermore, neither the Emanon Construction Company nor Timothy Presto had a permit from the Department to operate the Site as a solid waste management facility. In fact, the Site is a residential subdivision owned by the Emanon Construction Company. Consequently, the Respondent violated 360-1.5(a)(2) on August 11, 1989 by disposing of the solid waste described above at the unpermitted Site.
  5. I find no authority in the ECL that would permit me to direct the Respondent to reimburse the Emanon Construction Company for cleaning up the Site. Therefore, the Department's request is denied.
  6. In determining the appropriate relief, I have considered the circumstances of this matter as they are developed in the record and discussed in the attached Hearing Report.

NOW, THEREFORE, having considered this matter, and being duly advised it is ORDERED that:

  1. For violating 360-1.5(a)(2) on August 11, 1989, the Respondent is assessed a civil penalty of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500). The total amount of the civil penalty shall be due and payable to the Department within 60 days after service of a conformed copy of this Order upon the Respondent.
  2. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 3 Director, NYSDEC, 21 South Putt Corners Road, New Paltz, New York 12561.
  3. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

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

/s/

Dated: Albany, New York
September 24, 1993

To: Timothy Presto via certified mail
123 Oak Avenue
Matamoras, Pennsylvania 18336

Jonah Triebwasser, Esq.
Senior Attorney
NYSDEC-Region 3
21 South Putt Corners Road
New Paltz, New York 12561

Adrienne Betar
Emanon Construction Company
RD 1, Box 1035
Sussex, New Jersey 07461

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

In the Matter

- of -

Alleged Violations of Environmental Conservation Law of the
State of New York Article 27 and Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New
York 360-1.5(a)(2)

by

TIMOTHY PRESTO

123 Oak Avenue
Matamoras, Pennsylvania 18336

RESPONDENT

DEC No. R3-1861/9001

HEARING REPORT

- by -

/s/
Daniel P. O'Connell
Administrative Law Judge

SUMMARY

In a Notice of Hearing and Complaint, the Region 3 Staff of the Department of Environmental Conservation (the Department) alleged Timothy Presto dumped solid waste at an unpermitted location in the Town of Greenville, Orange County in violation of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) 360-1.5(a)(2). This Hearing Report concludes the Respondent violated 6 NYCRR 360-1.5(a)(2) on August 11, 1989, and recommends a civil penalty of $2,500.

PROCEEDINGS

On about September 23, 1993, the Department duly served a Notice of Hearing and Complaint on the Respondent, Timothy Presto. According to the Complaint, the Respondent allegedly violated 6 NYCRR 360-1.5(a)(2) on August 11, 1989 by dumping solid waste at an unpermitted site located on Route 6 in the Town of Greenville, Orange County (the Site). The Site is a residential subdivision called Falcon Ridge Estate. Pursuant to ECL Article 71 and 6 NYCRR Part 622, Administrative Law Judge Daniel P. O'Connell presided over an enforcement hearing at the New Paltz Town Hall on April 26, 1990 to consider the charge alleged against the Respondent.

Jonah Triebwasser, Esq., Senior Attorney, Region 3, appeared for the Department. The Department's witnesses included Adrienne Betar, Emanon Construction Company, Sussex, New Jersey; Terry H. Curtis, Sr., Chief Constable, Town of Greenville; Environmental Conservation Officer (ECO) John W. Hill; and Jon White, NYSDEC Division of Regulatory Affairs, Region 3.

Although the Respondent appeared with his attorney at the calendar call on October 18, 1989, neither the Respondent, Timothy Presto, nor a representative appeared at the hearing on April 26, 1990.

The Office of Hearings received the stenographic transcript on May 21, 1990. The record of the proceeding remained opened to receive more information about the Respondent's medical condition. Since this information was not forthcoming, ALJ O'Connell contacted the Parties about this matter. The record of hearing closed on May 17, 1993 after ALJ O'Connell provided the Respondent with an opportunity to review the record of this proceeding.

The Department's Position

The Department alleged the Respondent violated 360-1.5(a)(2) on August 11, 1989 by dumping solid waste at an unpermitted site on Route 6 in the Town of Greenville, Orange County (the Site). The Department requested an Order from the Commissioner assessing a civil penalty of $2,500.

The Department stated remediation of the Site was not necessary because the property owner, the Emanon Construction Company from Sussex, New Jersey, properly disposed of the solid waste allegedly dumped on the Site by the Respondent. In lieu of remediation and in the interest of justice, the Department asked the Commissioner to direct the Respondent to reimburse the Emanon Construction Company $790 for cleaning up the Site.

The Respondent's Position

The Respondent's position is unknown. The Respondent did not enter a plea at the October 18, 1989 calendar call, file an Answer to the Complaint, appear at the hearing convened on April 26, 1990, or reply to correspondence sent to him.

Exhibits 8 and 9

At the hearing on April 26, 1990, the Department requested an opportunity to produce an itemized bill of the costs spent by the Emanon Construction Company to remove the illegally discarded solid waste from the Site and to dispose of it at the Orange County landfill. ALJ O'Connell granted this request. Enclosed with a letter dated May 8, 1990, Mr. Triebwasser provided a copy of the bill for the hearing record.

In a letter dated April 26, 1990, W. John B. Hodgson, M.D., Chief of G.I. Surgery, stated the Respondent did not appear at the hearing on April 26, 1990 because Mr. Presto was an inpatient at the Westchester County Medical Center.

RULING: The itemized bill will be received into the hearing record as Exhibit 8, and is attached to the Report as Appendix A. Dr. Hodgson's letter dated April 26, 1990 will be received into the hearing record as Exhibit 9, and is attached to the Report as Appendix B.

Option to Re-open the Record

In a memorandum to the Parties dated May 6, 1993, ALJ O'Connell concluded Dr. Hodgson's April 26, 1990 letter reasonably explained why the Respondent did not appear at the hearing. Since the Respondent had been admitted to Westchester Medical Center on April 26, 1990, ALJ O'Connell asked the Parties if the record of the proceeding should be re-opened to give the Respondent an opportunity to examine the Department's evidence and to present a case in his defense. The May 6, 1993 memorandum was sent to the Department by regular mail and to the Respondent by certified mail return receipt requested. Replies were due from the Parties by May 17, 1993.

On May 10, 1993, the Respondent received a copy of the May 6, 1993 memorandum about re-opening the record to permit Mr. Presto to examine the Department's evidence and to present a direct case. The Office of Hearings did not receive a reply from the Respondent.

In a letter dated May 11, 1992, the Department objected to re-opening the record of the hearing to give the Respondent an opportunity to examine the evidence and to present a direct case. The Department requested a prompt decision from the Commissioner.

FINDINGS OF FACT

  1. On September 23, 1989, Timothy Presto, 123 Oak Avenue, Matamoras, Pennsylvania 18336, received a copy of the Notice of Hearing and Complaint by certified mail return receipt requested.
  2. The Respondent appeared at the calendar call on October 18, 1989 with his attorney, Andrew Kossover, Esq., New Paltz. Mr. Kossover withdrew as the Respondent's counsel after Mr. Presto refused to help Mr. Kossover prepare the Respondent's defense.
  3. Emanon Construction Company, Sussex, New Jersey (the Company), is a partnership owned by Adrienne Betar and Robert Van Dyke. The Company owns a seven lot subdivision called Falcon Ridge Estate located off of Route 6 in the Town of Greenville, Orange County (the Site).
  4. On August 11, 1989, a pile of car parts, tires, bed springs and antifreeze containers appeared on Lot No. 3 of the Site.
  5. From the pile of debris described above, the Company's employees found an invoice dated July 10, 1989 with the Respondent's name on it.
  6. After the police in Westfall, Pennsylvania threatened Mr. Presto with a $300 fine for discarding the car parts, tires, bed springs and antifreeze containers at an unauthorized site in Westfall, the Respondent dumped these materials on the Site.
  7. The Department has not issued either the Company or Timothy Presto a permit to operate a solid waste management facility at the Site. The Company did not give the Respondent permission to dump the debris described above on the Site.
  8. On August 11, 1989, employees from the Company collected the car parts, tires, bed springs and antifreeze containers, and disposed of the materials at the Orange County landfill at a cost of $790.
  9. The Tri-State Chamber of Commerce (New York, New Jersey and Pennsylvania) determined the Site's mountain and valley views are aesthetically valuable.
  10. The Respondent did not appear at the hearing on April 26, 1990 because Mr. Presto was an inpatient at the Westchester County Medical Center.
  11. On May 10, 1993, the Respondent received a copy of a memorandum dated May 6, 1993 from ALJ O'Connell about providing the Respondent with an opportunity to examine the Department's evidence and to present a direct case.
  12. The Respondent did not reply to the May 6, 1993 memorandum about re-opening the record of the hearing.

DISCUSSION

Service

In pertinent part, 622.3(c) states "[s]ervice of the notice of hearing and complaint shall be by personal service consistent with the CPLR or certified mail."

The Department sent a copy of the Notice of Hearing and Complaint by certified mail return receipt requested to the Respondent at 123 Oak Avenue, Matamoras, Pennsylvania 18336. On September 23, 1989, Timothy Presto received a copy of the Notice of Hearing and the Complaint. Consequently, the Respondent received notice of the hearing and the charge alleged against him in a manner consistent with 622.3(c).

Re-opening the Record

By letter dated April 26, 1990, W. John B. Hodgson, M.D., Chief of G.I. Surgery, stated the Respondent did not come to the hearing on April 26, 1990 because Mr. Presto was an inpatient at the Westchester County Medical Center. Dr. Hodgson's April 26, 1990 letter reasonably explains why the Respondent did not appear at the hearing. Although there is no question the Respondent knew the charge alleged against him, there is a question about whether the Respondent had an opportunity to be heard on April 26, 1990.

This potential due process issue was adequately addressed by giving the Respondent an opportunity to re-open the record. The record establishes the Respondent received the May 6, 1993 memorandum extending the option to re-open the record, but did not reply. Consequently, the Respondent chose not to re-open the record of this proceeding.

Liability

Terry H. Curtis, Sr., Chief Constable, Town of Greenville stated he had spoken with the police in Westfall, Pennsylvania, and with Timothy Presto. Based on his personal conversations with the Westfall police and the Respondent, Constable Curtis testified that after being threatened by the Westfall police with a fine for illegally disposing car parts, tires, bed springs and antifreeze containers, the Respondent admitted to dumping these materials on the Site on August 11, 1989. Absent any contradictory evidence and based on his appearance and demeanor, I find Constable Curtis' testimony to be reliable, and assign it significant weight.

Section 260-1.2(a) provides a definition of the term solid waste. Based on this definition, the car parts, tires, bed springs and antifreeze are solid waste because the Respondent disposed of these materials on the Site by abandoning them there.

In pertinent part, 360-1.5(a)(2) states "no person shall dispose of solid waste in this State except at: ... a disposal facility authorized to accept such waste for disposal pursuant to this Part or to a department-issued or court-issued order."

Neither the Emanon Construction Company nor Timothy Presto had a permit from the Department to operate a solid waste management facility at the Site. The Company does not operate the Site as a solid waste management facility; it is a residential subdivision. The Company did not give the Respondent permission to dump the car parts, tires, bed springs and antifreeze containers on the Site. Consequently, the Respondent violated 360-1.5(a)(2) on August 11, 1989 by disposing of these materials at the unpermitted Site.

Payments to Third Parties

The Department stated remediation of the Site was not necessary because the Emanon Construction Company properly disposed of the solid waste dumped on the Site by the Respondent. In lieu of remediation and in the interest of justice, the Department asked the Commissioner to direct the Respondent to reimburse the Company $790 for cleaning up the Site.

Though it would be in the interest of justice to order the Respondent to reimburse the Emanon Construction Company for cleaning up the Site, there is no provision in the ECL that provides the Commissioner with this discretion. Therefore, the Commission should deny the Department's request.

Civil Penalty

ECL 71-2703(1) authorizes a maximum civil penalty of $2,500 for violating ECL Article 27 and its implementing regulations (Part 360). The Department argued the Commissioner should assess the maximum civil penalty because there is a serious problem in Region 3 with illegal dumping.

The Department's request for $2,500 correctly considers the equities in this case. The record shows the Respondent was inclined to dispose of solid waste illegally by first dumping the car parts etc. at a site in Pennsylvania and then at the Site. Consequently, the maximum civil penalty is needed to deter the Respondent from illegally discarding solid waste in New York State again. The Respondent's actions also threatened the aesthetic value of the Site, and required the property owner to spend $790 to clean up the Site. Therefore, the Commissioner should assess the full amount of the requested civil penalty.

CONCLUSIONS

  1. The Respondent received notice of the hearing and the charge alleged against him in a manner consistent with 622.3(c).
  2. After being given an opportunity to review the Department's evidence and to present a case in his defense, the Respondent chose not to re-open the record of this proceeding.
  3. The car parts, tires, bed springs and antifreeze containers deposited on the Site on August 11, 1989 are solid waste as defined in 360-1.2(a) because the Respondent abandoned these materials on the Site.
  4. The Respondent violated 360-1.5(a)(2) on August 11, 1989 by disposing of the car parts, tires, bed springs and antifreeze containers at the unpermitted Site.

RECOMMENDATIONS

  1. For violating 6 NYCRR 360-1.5(a)(2) on or about August 11, 1989, the Commissioner should assess the Respondent a civil penalty of $2,500.
  2. Absent any authority in the ECL, the Commissioner should deny the Department's request to direct the Respondent to reimburse the Emanon Construction Company for cleaning up the Site.

Attachments: Appendices A and B

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