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Waverly Horse Farm, Inc. and Primo Bonici - Ruling, November 16, 1993

Ruling, November 16, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

WAVERLY HILLS HORSE FARM, INC.
and
PRIMO BONICI,
Respondents

DEC File No. R1-5080-92-07

RULING

November 16, 1993

On August 20, 1993, the Department Staff moved for a Summary Order in the above matter. The Respondents submitted an Answer dated September 15, 1993. Additional correspondence regarding the Motion, dated October 5 and October 19, 1993, was submitted by the Department Staff and the Respondents, respectively.

The Motion for Summary Order (the "Motion") sought a Summary Order of the Commissioner for alleged violations of Environmental Conservation Law ("ECL") Sections 27-0704 and 27-0707 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 360) including Subpart 360-8. References to Part 360 are to the version which was in effect at the time of the alleged violations. Part 360 was extensively amended effective October 9, 1993.

The documents submitted by the Parties demonstrate that no issues of fact exist regarding the facts relevant to the Respondent's liability for violations of ECL Section 27-0707 and NYCRR Part 360, but issues of fact exist with regard to whether the solid waste management facility in question is a "landfill" as defined in 6 NYCRR 360-1.2(b)(88). Issues of fact also exist with regard to what penalty, if any, should be imposed. Therefore, the hearing will proceed on November 30, 1993 as scheduled in the September 22, 1993 notice of adjournment but will be limited to issues relevant to the proposed penalty and, as discussed further below, the question of whether the waste was to have remained on the Site. The Respondents have not contested the proposed compliance schedule.

The following facts are not in dispute:

  1. The Respondent Waverly Hills Horse Farm., Inc. is the sole owner of two adjoining lots which are designated on the Nassau County Tax Map as Section 17, Block 16, Lots 3 and 9. The Respondent also leases an adjoining lot (Section 17, Block 16, Lot 15) from the New York State Office of Parks, Recreation and Historic Preservation. These three lots (the "Site") are located near the intersection of Powell Lane and the south service road of the Long Island Expressway, Old Westbury, Nassau County, New York.
  2. Respondent Primo Bonici is the President and manager of Waverly Hills Horse Farm, Inc.
  3. The Respondents have never applied for and have never obtained a permit from the Department of Environmental Conservation to construct and/or operate a solid waste management facility on the Site. The Respondents also have no authorization or approval by the Commissioner allowing the disposal of clean fill at the Site.
  4. On October 11, 1991, some amount of solid waste was disposed of at the Site. This waste was crushed construction and demolition debris. Persons other than the Respondents participated in disposing of this waste. (The affidavits of the Parties contain conflicting statements regarding participation by the Respondents in disposing of the waste. The quantity of the waste is also in dispute. These are among the disputed issues relevant to the penalty.)
  5. This waste is located within the boundary of the deep flow recharge area according to the hydrogeological zone established pursuant to the Long Island Comprehensive Waste Treatment Management Plan referenced in ECL Section 27-0704.2.
  6. There is no liner underlying the waste, nor any leachate collection and removal system. There is no evidence that the Respondents have provided a leachate treatment and disposal system.
  7. The Respondents have not posted a financial guarantee for a solid waste management facility.
  8. The Respondents arranged for material to be placed on the Site, although the nature of the material is in dispute. The Respondents would also be the ones with the authority to arrange for removal of the waste which was deposited.

ECL Section 27-0704 governs land burial and disposal of solid waste in Nassau and Suffolk Counties. Section 27-0704.3 provides, among other things, that on or after the effective date of the section (June 21, 1983) no person shall commence operation of a new landfill which is located in a deep flow recharge area.

ECL Section 27-0707.1 provides, among other things, that no person shall commence operation of a new solid waste management facility until such person has obtained a permit pursuant to Title 7 of ECL Article 27. ECL Section 27-0707.4 provides that "Nothing herein shall relieve any person of the responsibility of fully complying with all applicable laws, rules and regulations, including regulations of the department, promulgated pursuant to subdivision one of section 27-0703, in the operation of a solid waste management facility not subject to the department's review under section 27-0707."

6 NYCRR 360-1.2(b)(145) defines "solid waste management facility" as: "...any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to: storage areas or facilities; transfer stations;...landfills; disposal facilities..." The waste on the site is a solid waste management facility as that term is defined in Part 360. This use of the term is consistent with its use in prior Orders of the Commissioner (In the Matter of Monty Campbell, No. R9-3046-90-01, July 13, 1992; In the Matter of Nancy Colacicco, DEC Case No. R3-1970/9003, September 29, 1990).

6 NYCRR 360-1.2(b)(88) defines "landfill" as: "...a disposal facility or part of one at which solid waste, or its residue after treatment, is intentionally place in or on land, and at which solid waste will remain after closure and which is not a landspreading facility, a surface impoundment, or an injection well."

The waste on the Site constitutes a solid waste management facility as that term is defined in Part 360. There is a question, however, regarding whether the waste would have remained there. This question arises from the statements in the affidavits about what materials Mr. Bonici had expected would be placed on the Site, his actions once the waste began to be deposited, and subsequent interactions between Mr. Bonici and the Department regarding removal of the waste.

6 NYCRR 360-1.2(b)(105) defines "owner" as: "... a person who owns a solid waste management facility or part of one." The Respondents are the owners of the facility in question.

6 NYCRR 360-1.2(b)(104) defines "operator" as: "the person who is in charge of a solid waste management facility and has the authority and knowledge to make and implement decisions regarding operating conditions of the facility." The Respondents are the operators of the facility.

Ruling: The motion for summary order is granted with regard to the alleged violation of ECL Section 27-0707 and 6 NYCRR Part 360 by the Respondents. The motion for summary order is denied with regard to the alleged violation of ECL Section 27-0704 since an issue of fact exists regarding whether the facility was one at which waste would have remained after closure (in the absence of the Department's enforcement action) and thus whether the facility is a "landfill". Issues of fact exist regarding the amount of any civil penalty to be imposed.

The hearing will commence on November 30, 1993 as scheduled, on the issue of whether the facility is a landfill and on the penalty issue.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York
November 16, 1993

To: Jeanne A. Compitello,Esq.
Christopher Carnesi, Esq.

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