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Statewide Recycling Center - Default Order, January 27, 1998

Default Order, January 27, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Violations of
Articles 27 and 71 of the New York
State Environmental Conservation Law
("ECL") and Part 360 of Title 6 of
the Official Compilation of Codes,
Rules and Regulations of the State
of New York by

DEFAULT
ORDER
File No. 1-5981-97-07

STATEWIDE RECYCLING CENTER
OF NEW YORK, INC. and
FRANCO ROTONDO, JR.

Respondents

FINDINGS

WHEREAS:

  1. The New York State Department of Environmental Conservation ("NYSDEC") is a Department of the State of New York with jurisdiction to enforce the environmental laws of New York State pursuant to Section 3-0301 of the New York State Environmental Conservation Law ("ECL").
  2. Article 27, Title 7 of the ECL gives the DEC the power to promulgate and adopt regulations governing the operation of solid waste management facilities.
  3. Part 360 of 6 NYCRR sets forth requirements and standards for the operation of solid waste management facilities, including the operation of solid waste transfer, recyclables handling and recovery, processing and disposal facilities.
  4. Respondents are the owners and/or operators of a solid waste management facility located at 1345 New York Avenue, Huntington Station, New York ("Facility" or "Site").
  5. Franco Rotondo, Jr. is the President of Statewide Recycling Center of New York, Inc.
  6. The property located at 1345 New York Avenue, Huntington Station, New York is owned by Franco Rotondo, Jr.
  7. On April 12, 1993, Respondent Franco Rotondo, Jr. and Statewide Carting, Inc., along with other individuals and entities, executed an Order on Consent (File # R1-4991-92) which provided, inter alia, that Franco and Josephine Rotondo divest themselves of all interest in or involvement in the affairs of Respondent StatewideThis and other incarnations of the various Statewide corporations will simply be referred to as "Statewide" herein unless otherwise specifically described. (Paragraph IV, Appendix A, page 11 of the Order on Consent which became effective April 19, 1993).
  8. That Order on Consent also required that the Department be provided with annual financial auditing reports to verify that Franco and Josephine Rotondo had and were, in fact, divested from Statewide.
  9. That Order on Consent also provided for stipulated penalties for any violation of the Order on Consent in the amount of $2,500 for the violation and a $1,000 for each day the violation continues.
  10. On October 14, 1993 a Modification to the Order on Consent was executed which provided, inter alia, that Statewide Carting, Inc. elected to adopt the name Statewide Recycling, Inc. and that Statewide Recycling, Inc. accepted all obligations under the Order applicable to Statewide Carting, Inc. Statewide Recycling, Inc. subsequently changed its name to Statewide Recycling Center of New York, Inc. on June 26, 1996. That modification became effective October 14, 1993.
  11. Statewide was thereafter issued a permit to operate a solid waste management facility; such permit was effective from May 23, 1994 to May 22, 1995. On several occasions that permit was subsequently extended with basically the same terms and conditions. Each of these permits required that the permittee and its principals comply with the terms and conditions of the Consent Order executed on April 12, 1993.
  12. On April 17, 1997, Respondents executed an Order on Consent to resolve specific violations of Part 360 and the permits referenced in Paragraph 11 above. That Order specifically provided that all terms and conditions of the Order executed by Respondents on April 12, 1993 was to remain in full force and effect except as expressly modified in the latter Order or by any subsequent permit condition or correspondence issued by the Department.
  13. That Order on Consent also provided for stipulated penalties for any violation of the Order on Consent in the amount of $5,000 for the violation and a $1,000 for each day the violation continues. Such stipulated penalties were due and owing to the Department within 24 hours after DEC notified the Respondents of the violation without further administrative adjudication.
  14. Respondents filed for a permit renewal on November 26, 1996, but such application was deemed not to be a timely and sufficient renewal application by the Department.
  15. The Department has documented numerous violations of the aforementioned statutes and regulations, the April 21, 1997 Order on Consent and the applicable permits, as specifically described in the Notice of Hearing and Complaint dated November 3, 1997 which was received by the Respondents on November 6, 1997.
  16. On September 5, 1997 the Department denied Respondents' application for a renewal of the most recently issued permit which permit had an expiration date of May 1, 1997. Such decision to deny was based upon, inter alia, the numerous violations referenced in Paragraph 15 above. Respondents thereafter requested a hearing on the Department's decision to deny the permit application.
  17. On November 20, 1997 Administrative Law Judge Helene G.Goldberger consolidated the hearing on the permit application denial and the enforcement hearing.
  18. Respondents are found to be in violation of Article 27 of the ECL and 6 NYCRR Part 360 in that they are found to have committed each of the violations alleged in the Notice of Hearing and Complaint dated November 3, 1997.
  19. Pursuant to ECL 71-2703, effective until January 1, 1996, violation of Title 7 of Article 27 of the ECL and 6 NYCRR Part 360 subjected the violator to a civil penalty of up to TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) for each violation and an additional penalty of ONE THOUSAND DOLLARS($1,000) for each day the violation continued, as well as to criminal penalties and injunctive relief. ECL 71-2703, effective after December 31, 1995, authorizes penalties not to exceed FIVE THOUSAND DOLLARS ($5,000) for each violation of Title 7 Article 27 of the ECL and 6 NYCRR Part 360, and an additional penalty of ONE THOUSAND DOLLARS ($1,000)for each day the violation continues. For each release of solid waste into the environment 71-2703 authorizes a penalty not to exceed SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500) and an additional penalty of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500) for each day the violation continues. 71-2703 also authorizes penalties not to exceed FIFTEEN THOUSAND DOLLARS ($15,000) for each violation of Title 7 Article 27 of the ECL and 6 NYCRR Part 360 which results in the release of more than ten cubic yards of solid waste into the environment, and an additional penalty of FIFTEEN THOUSAND DOLLARS ($15,000) for each day the violation continues as well as criminal penalties and injunctive relief. In addition, pursuant to ECL 71-2703, any person who violates any of the provisions of, or who fails to perform any duty imposed by Title 7 of Article 27 or any regulations enacted thereto, with regard to the disposal of construction and demolition debris, shall be liable for additional sanctions not exceeding TEN THOUSAND DOLLARS ($10,000) per day for each day of violation.
  20. Respondents have waived their right to a public hearing in this matter in the manner provided by law by their failure to file a timely answer to the Notice of Hearing and Complaint and shall be bound by the terms and conditions contained herein.
  21. Respondents' permit application referenced in Paragraph 16 above is denied and their request for a hearing on the decision to deny the permit application is deemed withdrawn.

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

  1. With respect to the aforesaid violations, there is hereby imposed upon Respondents, a penalty in the sum of TWO HUNDRED SEVENTY THOUSAND FOUR HUNDRED FIFTY DOLLARS ($270,450) which shall be made payable to the Department immediately upon Respondent's receipt of this Order;
  2. Respondents are to cease and desist from any and all current and future violations of the ECL and the rules and regulations enacted thereto;
  3. Respondents are directed to remediate the site within sixty (60) days of the date of the issuance of this Order, pursuant to the June 3, 1993 closure plan submitted by Life Support Sciences with Respondents' permit application and previously approved by the Department's Division of Solid and Hazardous Materials;
  4. This Order resolves only those violations specifically articulated and described herein and in no way limits the Department's authority to enforce any other violations not described herein in the manner that the Department shall deem appropriate;
  5. Any change in this Order shall not be made or become effective, except as specifically set forth by written order of the Commissioner, such written order being made either upon the written application of the Respondents, or upon the Commissioner's own findings;
  6. The failure to pay any penalty amounts due under the terms and conditions of this Order may result in a 22% surcharge in recovery costs and a potential tax refund offset by the Department of Taxation and Finance;
  7. For the purpose of insuring compliance with this Order, and with applicable provisions of the ECL and regulations promulgated thereunder, representatives of the DEC shall be permitted access to the Site and to relevant records in order to inspect and/or perform such tests as may be deemed appropriate to determine the status of Respondents' compliance;
  8. A dishonored check fee of TWENTY DOLLARS ($20.00) will be charged for all checks which are returned for insufficient funds;
  9. The provisions of this Order shall be deemed to bind the Respondents, their successors and assigns, and all persons, firms and corporations acting under or for them, including, but not limited to those who may carry on any or all of the operations now being conducted by Respondents, whether at the present locations or at any other in this State; and,
  10. In those instances in which the Respondents desire that any of the provisions, terms or conditions of this Order be changed, they shall make written application, setting forth the grounds for the relief sought, to the Commissioner, c/o Lori J. Riley, Regional Attorney, New York Department of Environmental Conservation, Region 1, SUNY Campus - Building 40, Stony Brook, NY 11790-2356;

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

Albany, New York
January 27, 1998

TO: Thomas J. Casey, Esq.
75 Prospect Street
Huntington, New York 11743

Statewide Recycling Center
of New York, Inc.
1345 New York Avenue
Huntington Station, New York 11746

Mr. Franco Rotondo, Jr.
Statewide Recycling Center
of New York, Inc.
1345 New York Avenue
Huntington Station, New York 11746

Jeanne A. Compitello, Esq.
NYSDEC Region 1
Building 40, SUNY Campus
Stony Brook, New York 11790-2356

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violation of Articles 27
of the New York State Environmental Conservation
Law and Part 360 of Title 6 of the New York
Compilation of Codes, Rules and Regulations
by,

STATEWIDE RECYCLING CENTER OF
NEW YORK, INC. and FRANCO ROTONDO, JR.,

DEFAULT SUMMARY
REPORT

File No. 1-5981-97-07

Respondents.

Summary

On or about January 2, 1998, Region 1 staff served the respondents Statewide Recycling Center of New York, Inc. and Franco Rotondo, Jr. with a notice of motion for a default judgment in the above captioned matter based upon the respondents' failure to serve an answer pursuant to 622.15 of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR). This report recommends that the motion be granted.

Proceedings

On or about November 6, 1997, the Region 1 staff served respondents with a Notice of Hearing and Complaint dated November 3, 1997. The complaint concerns alleged violations of Article 27 of the Environmental Conservation Law, Part 360 of 6 NYCRR, the applicable Part 360 permit, and three Orders on Consent by the respondents in their operation of a solid waste management facility located at 1345 New York Avenue in Huntington Station, New York.

The Department had issued respondents a Part 360 permit that expired on May 1, 1997. The respondents submitted a permit renewal application on or about November 26, 1996; however, Region 1 staff denied the renewal based upon insufficiency of the application and failure to comply with the terms of the expired permit, Part 360 and the prior consent orders. In response, by letter dated October 1, 1997, Thomas J. Casey, an attorney representing the respondents, requested that a permit hearing be held to contest the denial pursuant to 6 NYCRR 621.13(d). Accordingly, on or about November 6, 1997, Region 1 staff submitted a hearings request to the Office of Hearings and Mediation Services (OHMS). On November 20, 1997, Administrative Law Judge (ALJ) Helene G. Goldberger convened a conference call with Mr. Casey and Assistant Regional Attorney Carpentieri. As a result of this call, the parties agreed that a combined enforcement/permit hearing would ensue on January 28, 1998. It was further agreed that Part 622 would govern the proceedings and that staff would have the burden of proof with respect to the allegations in the complaint and its determination to deny the permit renewal. Section 622 procedures are applicable to all DEC administrative enforcement proceedings brought pursuant to the ECL or other law administered by the Commissioner and any other proceeding which is enforcement in character. 6 NYCRR 622.1(1), (8). The ALJ also requested that the respondents file a copy of the answer with this office when they served it upon the Department staff. ALJ Goldberger confirmed this status with the parties in a letter dated November 21, 1997.

On December 31, 1997, Assistant Regional Attorney Jeanne Compitello telephoned ALJ Goldberger regarding the dates for the pre-hearing conference and hearing. In addition, Ms. Compitello inquired as to whether this office had received an answer which it had not. By notice of motion dated January 2, 1998, the Region 1 staff has moved for a default motion based upon respondents' failure to serve a timely answer. Staff's motion includes an affirmation by Ms. Compitello describing the respondents' failure to appear, proof of service of the notice of hearing and complaint and a proposed order. On January 7, 1998, this office received a letter and a copy of the same letter dated January 5, 1998 from Ms. Patricia A. Manzo for Thomas J. Casey stating that the law office had received staff's motion for a default judgment but Mr. Casey was "out of town" until January 12, 1998. In the letter, Ms. Manzo also requested that an opportunity be given to respond to the motion but as of January 20, 1998, Mr. Casey has not sent any response to staff's motion nor has he contacted this office to offer any explanation for the failure to answer the complaint or staff's motion for default.

On January 13, Ms. Compitello called ALJ Goldberger to inform the ALJ that the respondents still had not responded to her motion nor did they file an answer. The ALJ inquired as to whether Ms. Compitello had received respondents' January 5 letter and was informed that she had not. The ALJ suggested that Ms. Compitello contact Mr. Casey's office and request that a copy of the letter be faxed to staff. By letter dated January 13, 1998, Ms. Compitello confirmed that she had gotten a faxed copy of the January 5 letter but still had no answer nor a response to the motion for default. In Ms. Compitello's letter, she also argues that the respondents had adequate time to respond to the complaint and should now be found in default. Also, in staff's view because the respondents defaulted in not responding to the complaint, Ms. Compitello advised the ALJ that she elected not to convene the scheduled pre-hearing conference.

Discussion

Staff's Motion for a Default Judgment

Section 622.15 of 6 NYCRR sets forth the procedures for a default judgment. The regulation provides, inter alia, that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department staff may move before the ALJ for a default judgment.

Staff's motion for a default judgment must contain: (1) proof of service upon the respondent of the notice of hearing and complaint; (2) proof of the respondent's failure to appear or failure to file a timely answer; and (3) a proposed order. 6 NYCRR 622.15(b). If these requirements are met, the ALJ is to submit a summary report, limited to a description of the circumstances of the default, and the proposed order to the Commissioner. Responses to motions are to be served within five days of service and the ALJ is directed to rule on motions within five days after a response is served or the time to serve a response has expired. 6 NYCRR 622.6(c)(3), (4).

In this case, the Department staff submitted an affirmation by Jeanne A. Compitello, Esq. which along with the copies of the certified receipts annexed to the affirmation prove that the staff served the notice of hearing and complaint on the respondents on November 6, 1997. The notice of hearing sets forth that the respondent must serve an answer within twenty days of receipt of the complaint or face default and waiver of the right to a hearing. Ms. Compitello's affidavit also proves that the respondents failed to submit an answer. The answer was due by November 26, 1997. Staff also submitted the requisite proposed order with its motion papers.

Moreover, the respondents have failed to serve a response to the default motion which was due by January 12, 1998, and thus, have not provided any basis to find that there was good cause for the default. 6 NYCRR 622.15(d).

Accordingly, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgment. In accordance with 6 NYCRR 622.15(c), this summary report will be submitted to the Commissioner accompanied by staff's proposed order.

Status of Respondents' Permit Hearing

As noted above, the staff and the respondents' representative agreed that the hearing that was to be convened to hear staff's allegations in the November 3, 1997 complaint was also to address staff's determination to deny respondents' application to renew their Part 360 permit. In its motion for a default judgment, staff has requested a finding that respondents' permit application be denied and their request for a hearing on the decision to deny the permit application be deemed withdrawn. Annexed to staff's complaint as Exhibit C is the respondents' Part 360 permit that expired on May 1, 1997. Pursuant to 6 NYCRR 621.13(a), applications for renewals for minor solid waste management facilities must be made at least thirty days prior to expiration. Respondents applied for their permit renewal on or about November 26, 1996. By letter dated September 5, 1997, staff rejected the respondents' permit renewal application stating it was not in conformance with 6 NYCRR 360-1.9(d) because the required statement certifying the facility's compliance with the terms and conditions of the existing permit was not accurate.

In addition, in the September 5 letter, Region 1 Permit Administrator George W. Hammarth cited a host of alleged violations of respondents' permit, Part 360, and consent orders as further grounds to reject the renewal application. In response, pursuant to 6 NYCRR 621.13(d), respondents requested a hearing in a letter sent by their attorney dated October 1, 1997.

Because the hearing was to be predominantly enforcement in nature, the ALJ determined (with the parties' concurrence) to hold one hearing on the enforcement and permit issues. Because the same facts formed the basis for staff's determination to deny the permit renewal and to commence a proceeding to prove violations of the ECL and to obtain an order for penalties and the facility's remediation, the agreement to combine the hearings into once proceeding was logical and in the interests of administrative economy. Accordingly, in the combined hearing, the parties would create a record upon which the ALJ could report and the Commissioner could decide both the enforcement and permit matters. This procedure is in conformity with 6 NYCRR 622.1(a)(1) and (8) which provides that Part 622 will govern when the matter is an administrative enforcement proceeding or it is enforcement in character. Because the respondents have defaulted on responding to the complaint, the ALJ is recommending that the Commissioner grant the staff's request for penalties and injunctive relief including the remediation of the landfill. And, based upon the respondents' default, the assumption is that the staff's allegations are true. The respondents are not now entitled to relitigate the same facts they would have addressed in the combined hearing in a permit proceeding. Rather, the default judgment that should issue will have a res judicata effect with respect to any further proceedings. See, Siegel, New York Practice 451 (2d ed. 1991). Accordingly, based upon the host of violations cited by staff including failure to comply with permit requirements, consent orders and the regulatory mandates, it would be inappropriate to grant the respondents' application.

In essence, the respondents, by virtue of having defaulted in the enforcement matter, have been determined to be in violation of the ECL, their permit and a number of consent orders related to the operation of the facility for which they now seek a permit. The Department, as part of its review of an application, has the power to withhold a permit based upon the prior conduct of the applicant. See, In the Matter of American Transfer Company, Interim Decision of the Commissioner (February 4, 1991). Based upon respondents' prior and repeated conduct, such as their failure to maintain the facility in a manner which prevents litter, dust, odors, and other potential nuisances in violation of 6 NYCRR 360-16.4(b)(5)(iii); their failure to comply with 6 NYCRR 360-16.4(f)(2) by storing processed and unprocessed construction and demolition debris (C & D) for longer than thirty days; their violation of 6 NYCRR 360-16.4(f)(3) for allowing the C & D debris to exceed 20 feet in height; their failure to submit reports pursuant to 6 NYCRR 360-16.4(I)(1); their violation of the Order on Consent dated April 21, 1997 for such matters as failure to file auditing reports and for accepting waste beyond the amounts the facility was equipped to accept; for violating their permits dated April 29, 1996 and September 23, 1996, for such matters as accepting grass and leaves prohibited by special condition #2; for accepting C & D screening beyond the permit limitation of 300 yards contained in special condition #3; for tipping loads outside the facility's building in violations of special conditions #6 and #7; I recommend that it would be improper to grant this permit and there does not appear to be any basis upon which to grant a hearing.

Recommendation

The Commissioner should grant the default judgment request by the Department staff in this matter as well as deny the permit application. With this report, I am forwarding the staff's proposed Default Order.

/s/
Helene G. Goldberger
Administrative Law Judge

TO:

Thomas J. Casey, Esq.
75 Prospect Street
Huntington, New York 11743

Statewide Recycling Center of New York, Inc.
1345 New York Avenue
Huntington Station, New York 11746

Mr. Franco Rotondo, Jr.
Statewide Recycling Center of New York, Inc.
1345 New York Avenue
Huntington Station, New York 11746

Jeanne A. Compitello, Esq.
New York State Department of
Environmental Conservation
Region 1
SUNY at Stony Brook - Building 40
Stony Brook, New York 11790-2356

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