Productive Recycling, Inc. - Order, June18, 1993

Order, June 18, 1993

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

Alleged violations of Article 27 of the Environmental
Conservation Law
of the State of New York & Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
by
RONALD EDGAR,
PRODUCTIVE RECYCLING, INC., AND
PRODUCTIVE RECYCLING CORP.

Respondents.

ORDER

DEC NO. R1-4855-92-01

WHEREAS:

The attached Ruling on Motions for Summary Order and Hearing Report (the "Ruling") submitted by Administrative Law Judge ("ALJ") Kevin J. Casutto, with respect to the Department's Motion for Summary Order is accepted as my decision in this matter, subject to my comments below. A motion for summary order should be granted if, upon review of all the papers and proof submitted, it is concluded that the cause of action or a defense thereto is established as a matter of law [6 NYCRR 622.10(c) and CPLR 3212(b)].

Productive Recycling
I conclude that Ronald Edgar is a proper party to this proceeding in that he may be held personally liable for the violations in this matter. It is well established that a corporate officer may be held criminally liable for violations of statutes enacted to protect the public health, safety and welfare, where that officer had the authority and responsibility to prevent the violation (United States v. Park, 95 S.Ct. 1903 (1975); United States v. Dotterweich 64 S.Ct. 134 (1943)). The rationale for holding corporate officers criminally responsible is even more persuasive where only civil liability is involved (United States v. Hodges X-Ray, Inc., 759 F.2d 557 (CA 6th Cir, 1985)). The record demonstrates that Respondent Edgar held such a position of authority and responsibility with respect to the corporate respondents.
Regardless of whether the permits for either of Respondents' facilities were extended by operation of law pursuant to the State Administrative Procedures Act ("SAPA"), the demonstrated violations warrant the revocation of all operating authority for them.
The issues raised concerning the application of SAPA 401 are relevant nonetheless in determining whether operations at the facilities subsequent to the expiration dates of the permits for the two facilities were in violation of law.
I concur with the ALJ that the conflict between the time frames for submission of solid waste permits renewals specified in 6 NYCRR Parts 360 and 621 must be resolved in favor of the latter regulation (6 NYCRR 621.2). The timeframe specified in 6 NYCRR Part 621 would not be changed by the terms of any general permit condition though it could be changed through a special condition to the permit (6 NYCRR 621.13(a)).
Based on this analysis of the law, I concur with the ALJ conclusions that the permit renewal application for the Kings Park facility was timely filed within the meaning of SAPA 401. Using the same analysis, I conclude that the permit renewal application for the Commack facility was not timely filed.
I concur that there are no triable issues of fact with respect to the liability for any of the Respondents nor with respect to the appropriate relief in this matter except as set forth in Recommendation No. 6 to the Ruling.
In determining the appropriate relief for the violations that were established, the facts of this case as determined in the Ruling have been taken into account.

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

Respondents Ronald Edgar, Productive Recycling, Inc. and Productive Recycling Corp. are found to have committed the violations set forth in Conclusions Nos. 6 through 11 inclusive and Nos. 18 through 25 inclusive of the Ruling.
The permit renewal application for the Commack facility was not timely filed within the meaning of SAPA 401 and the Respondents Ronald Edgar, Productive Recycling, Inc. and Productive Recycling Corp. are found to have illegally operated the facility without a permit from the date of the permit's expiration, January 9, 1991 until January 1, 1992.
For the violations set forth in Paragraphs I and II of this Order, the three Respondents are jointly and severally assessed a civil penalty of ONE HUNDRED NINETY TWO THOUSAND DOLLARS ($192,000) for the Kings Park facility and an addition FOUR HUNDRED TWENTY THREE THOUSAND DOLLARS ($423,000) for the Commack facility, for a total civil of SIX HUNDRED AND SIXTEEN THOUSAND DOLLARS ($616,000).
The permit renewal application for the Kings Park facility is found to have been timely filed within the meaning of SAPA 401. Based on the violations that occurred at that facility, any operating authority is hereby revoked.
Respondents shall immediately stop receiving materials at both the Kings Park and Commack facilities and shall close both facilities on a timetable established by Department Staff and in accordance with a closure plan approved by them.
The allegations identified in Conclusions Nos. 15 and 29 are dismissed.
All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 1 Director, Building 40, SUNY Campus, Stony Brook, New York 11790.
The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, 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, NY
June 18, 1993

To: Mr. Vincent J. Trimarco, Esq.
1040 West Jericho Turnpike
Smithtown, New York 11787

Mr. Ronald Edgar
Productive Recycling, Inc.
1870 Pond Road
Ronkonkoma, New York 11779

Mr. Ronald Edgar
Productive Recycling Corp.
133 Old Northport Road
Kings Park, New York 11754

Mr. Ronald Edgar
133 Old Northport Road
Kings Park, New York 11754

Ms. Mary E. Carpentiere, Esq.
Assistant Regional Attorney
NYSDEC Region 1
Building #40, SUNY
Stony Brook, New York 11790-2356

Attachment

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

Alleged violations of Article 27 of the Environmental Conservation Law
of the State of New York & Part 360 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
by
RONALD EDGAR,
PRODUCTIVE RECYCLING, INC., AND
PRODUCTIVE RECYCLING CORP.,

Respondents.

RULING ON MOTIONS FOR

SUMMARY ORDER
AND
HEARING REPORT
DEC NO. R1-4855-92-01

PROCEEDINGS

The Department's Region 1 Staff ("Staff") served Notices of Hearing and motions for summary order on Ronald Edgar, Productive Recycling, Inc. and Productive Recycling Corp. ("Respondents"), regarding Respondents' yard waste composting/land clearing waste facilities at Old Northport Road, Suffolk County, Kings Park, New York and at Crooked Hill Road, Commack, Suffolk County, New York (the "Kings Park facility" and the "Commack facility", respectively, or "the facilities", collectively). Staff seeks a cease and desist order and closure order with respect to each facility, and seeks penalties of $1,430,500 for Respondents' violations of 6 NYCRR Part 360 at Respondents' facilities.

Mary E. Carpentiere, Esq., Assistant Regional Attorney, Region 1, served Staff's motions for summary order on December 22, 1992. Staff's motion regarding Respondents' Kings Park facility included an Affirmation from Ms. Carpentiere, and Affidavits from Robert Mitrey, Regional Solid Waste Engineer, Region 1; Robert Berger, Environmental Conservation Officer, Region 1; and Rasheed Carter, Environmental Engineer I, Region 1.

Staff's motion regarding Respondents' Commack facility included an Affirmation from Ms. Carpentiere, and Affidavits from Robert Mitrey, Regional Solid Waste Engineer, Region 1; Madelaine Feindt, Public Health Sanitarian, Suffolk County Department of Health Services; and Rasheed Carter, Environmental Engineer I, Region 1.

Exhibits attached to the two motions include copies of the initial permit to construct and operate issued by Staff for each facility renewal applications for each facility; engineering reports; inspection reports; photographs; maps and correspondence between the parties.

Respondents, by their attorney, Vincent J. Trimarco, Esq., submitted papers in opposition to the Department's motion by cover letter dated January 27, 1993. These papers included an Affirmation in Opposition from Mr. Trimarco, an Affidavit in Opposition from Ronald Edgar, and supporting exhibits.

By letter dated February 10, 1993, Staff filed a Reply, including an additional Affidavit of Rasheed Carter; an Affidavit of Thomas Stoner, Lieutenant, Division of Law Enforcement, Bureau of Environmental Conservation Officers, Region 1; and Affidavits of four neighboring residents of Respondents' Kings Park facility: Michael Heiman, Angela Gobler, Dominick Piccininni and Rosemary Guarcello.

By letter dated February 16, 1993, Mr. Trimarco filed his Affirmation in Sur-Reply on behalf of Respondents. No other information was received from the parties since that date.

THE DEPARTMENT STAFF'S POSITION

The Charges

Staff's allegations are summarized as follows:

Kings Park

First Cause of Action:

Respondents failed to file a timely permit renewal application for the solid waste management facility (SWMF) at Old Northport Road, Kings Park, New York, and are therefore operating without a Departmental permit, in violation of ECL 27-0707 and 6 NYCRR 360-1.7.

Second Cause of Action:

Respondents violated enumerated provisions of its permit, the ECL and Part 360 by:

failing to file a timely permit renewal application for its solid waste management facility (SWMF);
failing to submit a site regrading plan to Staff;
failing to regrade the site to avoid ponding;
failing to complete all construction at the site within 60 days of permit issuance;
failing to timely submit quarterly reports on three occasions;
failing to timely submit a revised contingency plan to control odors;
failing to control off-site migration of odors on thirty one (31) occasions;
failing to operate in conformance with Part 360, permit conditions and the engineering report;
failing to file a permit renewal application at least 180 days before permit expiration;
failing to maintain minimum horizontal separation distances on at least forty (40) occasions;
disposing of waste without authorization;
failing to maintain and operate the facility in accordance with its intended use;
allowing ponding to occur on six occasions; and
failing to compost properly; and
unacceptable waste handling.

Commack

First Cause of Action:

Respondents failed to file a timely permit renewal application for the solid waste management facility (SWMF) at Crooked Hill Road, Commack, New York, and are therefore operating absent a Departmental permit, in violation of ECL 27-0707 and 6 NYCRR 360-1.7.

Second Cause of Action:

Respondents violated enumerated provisions of its permit, the ECL and Part 360 by:

failing to file a timely permit renewal application for its solid waste management facility (SWMF);
failing to timely submit a revised contingency plan to control odors;
failing to control off-site migration of odors on four occasions;
failing to operate in conformance with Part 360 and the approved Engineering Report;
failing to timely submit quarterly reports;
failing to install a water supply well and hydrants;
failing to file a permit renewal application at least 180 days before permit expiration;
failing to maintain minimum horizontal separation distances;
allowing ponding to occur on one occasion;
allowing off-site migration of odors to occur;
unacceptable waste handling;
failing to maintain and operate the facility in accordance with its intended use;
disposing of waste without authorization;
failing to control dust and odors.

The Relief

Staff seeks an order requiring Respondents to cease and desist operation of the facilities, and requiring Respondents to immediately remove all material from the facilities and permanently close the facilities, in accordance with a closure plan and time schedule to be approved by Staff.

Relying on ECL 71-2703 (1) and (3), Staff also requests a civil monetary penalty of $932,000 for the Kings Park violations, and $498,500 for the Commack violations, totalling $1,430,500.

RESPONDENT'S POSITION

The Reply and Sur-reply

Respondents assert that numerous triable issues of fact exist in this matter; that the affidavits offered in support of Staff's motions contain conclusory allegations and assumptions, which are legally insufficient to support the motions; and that the motions are frivolous.

More specifically, Respondents assert that:

Respondent Ronald Edgar ("Edgar"), personally, is not a proper party to this action;
Respondent Productive Recycling Corp. is not a proper party to this action; and, in fact, that no such corporate entity exists;
Respondent Productive Recycling, Inc., filed a timely permit renewal with Staff for each facility.
Staff has failed to meet its burden of proof for each motion with respect to alleged violations of ECL Article 27 and 6 NYCRR Part 360; and
that the penalties sought by Staff are inequitable and unconstitutional.

Respondents therefore request that Staff's motions be denied.

FINDINGS OF FACT

Pursuant to the provisions of ECL Article 27, Title 7 and 6 NYCRR Part 360, Respondent Ronald Edgar, on behalf of the corporate Respondent, Productive Recycling Corp., applied to the Department for permits to construct and operate land clearing and yard waste composting facilities at its two facilities, at Old Northport Road, Kings Park, Suffolk County, New York (the "Kings Park" facility) and at Crooked Hill Road, Commack, Suffolk County, New York (the "Commack" facility).
Respondent Edgar was and continues to be the President and sole shareholder of Respondent Productive Recycling, Inc.
Respondent Edgar applied for the initial permits to construct and operate the facilities, on behalf of Respondent Productive Recycling Corp., has been and continues to be directly responsible for management and operations at both facilities and has and continues to have managerial authority to prevent regulatory violations at both facilities.
The three Respondents, Ronald Edgar, Productive Recycling, Inc. and Productive Recycling, Corp., have conducted business and engaged in regulated activities at each facility since issuance of the initial permits to construct and operate, under authority of the initial SWMF permits issued to Respondent Productive Recycling Corp. for each facility.
Respondents applied to renew the initial permit for each facility, as described at greater length, below; Staff did not issue a denial letter to Respondents regarding Respondents' permit renewal application for either facility.
Respondents have not submitted any business records, federal income tax returns or other financial documentation in support of their claim of inability to pay any civil penalty which may be assessed against them in this matter.

Kings Park Facility
Staff issued a SWMF permit to the corporate Respondent Productive Recycling Corp. for construction and operation of a land clearing and yard waste composting facility on January 17, 1991, with an expiration date of January 16, 1992.
Respondents submitted a SWMF permit renewal application to Staff on December 5, 1991, forty-two (42) days before its duly issued existing permit expired.
By letter dated January 13, 1992, Staff suspended processing of Respondents' permit renewal application for this site, due to alleged violations of the ECL at the site.
Respondents altered a permit for its Kings Park facility, to show later effective and expiration dates than that indicated on its initial duly issued permit. (Exhibit 1, Affidavit of Robert Berger [Kings Park], December 9, 1992).
This altered permit was displayed at Respondents' Kings Park facility site office, showing an effective date of January 17, 1992, and an expiration date of January 16, 1996.
The altered permit was observed by Environmental Conservation Officer Berger, when he accompanied Respondent Edgar into Respondents' site office on October 28, 1992, and Officer Berger confiscated the altered permit.
Respondents failed to submit a regrading plan to Staff, as required by SC#2.
The site was not regraded pursuant to a plan approved by Staff.
Therefore, Respondents failed to complete all construction at the site within 60 days of permit issuance.
Respondents failed to timely submit a revised contingency plan to control odors at the Kings Park facility, due within 30 days of January 17, 1992, the effective date of the permit;
The off-site migration of odors from the Kings Park facility occurred on at least thirty one (31) occasions (as set forth in Paragraphs 25A through 25E, Affidavit of Rasheed Carter [Kings Park], December 22, 1992).
The "sharp vinegar-like odor" identified by Staff both on-site and off-site at Respondents' Kings Park facility, and described in Staff's inspection reports, is an odor commonly associated with the composting of organic matter.
Respondents stored processed and compacted yard waste and wood chips within 50 feet of its property line and within 200 feet of the nearest residence, 27 Pinetree Court, on at least forty (40) separate occasions (as set forth in Paragraph 12B, Affidavit of Rasheed Carter [Kings Park], December 22, 1992).
Leaves from the Fall, 1990 season were still on-site at the Kings Park Facility on or about November, 1991.
From December, 1990 to July, 1991, Respondents received approximately 103,939 cubic yards of material at the site:
1. If all incoming material was processed at the time it was received, the resulting composted quantity would have been 17,365 cubic yards.
2. Only 8,301 cubic yards of finished product was reported to be removed from the site.
3. Incoming material was neither processed nor composted immediately upon receipt.
4. Respondents' site management practices resulted in an accumulation of approximately 60,000 cubic yards of material stored on-site at the Kings Park facility, while Respondents continued to accept more materials.
5. Both processed and unprocessed material were stored on site.
Respondents failed to timely submit three quarterly reports due in the months of April, July and October, 1991, (the three reports were submitted in December, 1991).
Respondents continued to accept and accumulate materials at the site, despite numerous directives from Staff that the accumulation of materials at the site was exacerbating the odor control problem. By December 22, 1992, Respondents had stored between 75,000 and 100,000 cubic yards of material on-site.

Commack
Staff issued a SWMF permit to the corporate Respondent Productive Recycling Corp., for construction and operation of a land clearing and yard waste composting facility at its Commack facility on January 10, 1991, with an expiration date of January 9, 1992.
Respondents submitted a SWMF permit renewal application to Staff for its the Commack facility on December 23, 1991, seventeen (17) days before its existing permit expired.
Respondents ceased accepting material at the Commack facility, pursuant to a Stipulation entered into between Respondent Productive Recycling, Inc. and the Town of Smithtown on September 10, 1992, effective January 1, 1993.
Respondents failed to timely submit a revised contingency plan to control odors, due within 30 days of January 10, 1991, the effective date of the permit.
The off-site migration of odors from the Commack facility occurred on at least four (4) occasions; September 3, 1991, January 14, 1992, March 10, 1992 and April 29, 1992.
The "sharp vinegar-like odor" identified by Staff both on-site and off-site of Respondents' Commack facility, and described in Staff's inspection reports, is a composting odor.
Respondents failed to install a water supply well and hydrants.
Respondents failed to maintain minimum horizontal separation distances at the site on at least ten (10) occasions (as set forth in Paragraph 20, Affidavit of Rasheed Carter [Commack], December 22, 1992).
Respondents continued to accept and accumulate materials at the site, despite numerous directives from Staff that the accumulation of materials at the site was exacerbating the odor control problem.
On September 1, 1991 a fire occurred at the site, requiring eight fire departments to respond to the incident.
Once the fire was controlled, on September 1, 1993, a constant fire watch ensued until September 3, 1991.
Respondents' violation of minimum horizontal separation distance requirements resulted in the presence of combustible piles of material as close as ten feet from the residence at 27 Pinetree Court.
Additionally, the accumulation of material at the site contributed to restricted access for the fire department vehicles.
Respondents failed to submit any regrading plan to Staff.
The site was not regraded pursuant to a plan approved by Staff.
From December, 1990 to October, 1991:
1. Respondents received approximately 73,377 cubic yards of material at the site.
2. If all incoming material was processed at the time it was received, the resulting composted quantity would be 15,216 cubic yards.
3. Only 10,118 cubic yards of finished product was reported to be removed from the site.
4. Incoming material was not processed immediately upon receipt.
5. Respondents' site management practices resulted in approximately 30,000 cubic yards of material being stored on-site while Respondents continued to accept more materials.
6. Processed and unprocessed materials were stored on site.
Respondents failed to timely submit quarterly reports, due in the months of April, July and October, 1991 (the reports were submitted in December, 1991 and January, 1992).
Respondents failed to control dust on September 18, 1992 (as described in Paragraph 22, Affidavit of Rasheed Carter [Commack], December 22, 1992).

DISCUSSION

I. Introduction

Staff issued initial permits to Respondent Productive Recycling Corp. to construct and operate land clearing and yard waste composting Solid Waste Management Facilities at its Kings Park and its Commack sites (the "facilities"), upon applications submitted by Respondent Edgar on behalf of the corporate permit applicant. The Kings Park facility permit was issued January 17, 1991, indicating an expiration date of January 16, 1992. The Commack facility permit was issued January 10, 1991, indicating an expiration date of January 9, 1992.

Staff asserts, essentially, that Respondents have acted in bad faith, by intentionally accepting more material than they could process or compost (to obtain an estimated $2.1 million in receipt fees) and in violating numerous important regulatory provisions. Further, after the expiration date of their initial permit for the Kings Park facility, Respondents displayed an altered permit, indicating an expiration date in 1996.

Soon after Respondents began operating the facilities, Staff began receiving complaints from residents of neighboring communities of foul odors coming from the two sites. Staff's inspections of the facilities revealed off-site migration of odors from both facilities (particularly severe at the Kings Park facility) and numerous other violations. Staff's attempts to have Respondents bring their facilities into compliance were unsuccessful. When Respondents applied for renewal of permits for the facilities, Staff suspended processing of the applications, and brought the present motions for summary order.

Staff alleges that Respondents continued operation of the two facilities following expiration of the SWMF permits, and committed numerous violations of initial permit conditions, the Environmental Conservation Law (ECL) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). Essentially, Staff asserts two bases for cessation of operations and closure of the facilities: that Respondents have not filed timely permit renewal applications, and that Respondents have continually operated the two facilities in violation of statutory, regulatory and permit provisions.

II. Standard of Review

Pursuant to 622.10 of Title 6, the Commissioner should grant a motion for summary order if the filings submitted by the Parties sufficiently establish the cause of action or the defense that would warrant the granting of Summary Judgment under the Civil Practice Law and Rules (CPLR). The Commissioner should deny the motion for summary order if the Respondent shows any issues of fact sufficient to require a hearing. However, the existence of a triable issue of fact that is associated with relief, such as the amount of civil penalty, does not prevent the granting of the motion.

In order to succeed on its motions, with respect to each allegation, Staff must show on its papers alone without the aid of oral testimony, that there is no material issue of fact outstanding and that the facts mandate judgment in its favor. On a motion for summary judgment the court will accept as true, the opposing party's evidence and any evidence of the movant that favors the opposing party. Weiss v Garfield, 21 AD2d 156, 249 NYS2d 458 (3rd Dept., 1964). However, an affidavit by an attorney having no personal knowledge of the facts, has no probative value and will not defeat a motion for summary judgment. See, South Bay Center, Inc. v Butler, Herrick & Marshall, 43 Misc.2d 269, 250 NYS2d 863 (1964). Nor can the party opposing a motion for summary judgment defeat the motion by general conclusory allegations which contain no specific factual references. Hanson v Ontario Milk Producers Coop., Inc., 58 Misc.2d 138, 294 NYS2d 936 (1968). Evasiveness in an opposing affidavit - - indirect reference to key facts, undue accent on immaterial points, and any other mode of behavior suggesting that the opposing party really can't deny the movant's evidence - - will give it an aura of sham and increase the prospects of a grant of the motion. Lastly, if a key fact appears in movant's papers and the opposing party makes no reference to it, the opposing party is deemed to have admitted it. Laye v Shepard, 48 Misc.2d 478, 265 NYS2d 142 (1965), aff'd., 25 AD2d 498, 267 NYS2d 477 (1st Dept., 1966). See, generally, CPLR 3212, and McKinney's Consolidated Laws of New York, CPLR 3212, Practice Commentary C3212:16 and C3212:17 (Siegel), (1992).

In the present matter, Respondents' attorney has provided affirmations in reply and sur-reply on each motion addressing both factual and legal matters. Since the attorney has no personal knowledge of the facts, his affirmation has no probative value on factual matters. However, Respondent Edgar does have personal knowledge of factual matters, and did provide a reply affidavit on each motion.

Respondents' general conclusory allegations, containing no specific factual references, and broadly asserting that numerous triable issues of fact exist in this matter; that the affidavits offered in support of Staff's motion contain conclusory allegations and assumptions which are legally insufficient to support the motions; and that the motions are frivolous, are, therefore, accorded little weight.

Further, as shown below, Respondents have been evasive in their opposing affidavits and have placed undue accent on immaterial points with respect to key facts, suggesting that Respondents cannot deny Staff's evidence.

III. Parties to the Proceeding

Respondents have challenged Staff's assertion of individual liability over Respondent Ronald Edgar, in these proceedings. I find this challenge without merit. As the Commissioner has recently stated, it is well established that a corporate officer may be held criminally liable for violations of statutes enacted to protect public health, safety and welfare, where that officer had the authority and responsibility to prevent the violation. Further, the rationale for holding corporate officers responsible is even more persuasive where only civil liability is involved. In cases where the statutory violation does not require any showing of wrong doing, liability attaches to managerial officers of a corporation where it is shown that, by virtue of the relationship the officer bore to the corporation, he or she had the power to prevent the violation. In the Matter of Galfunt and Hudson Chromium Co. Inc., Order of the Commissioner, May 5, 1993 [citing, United States v Park, 95 SCt. 1903 (1975); United States v Dotterweich, 64 SCt. 134 (1943); United States v Hodges X-Ray, Inc., 759 F.2d 557 (CA 6th Cir., 1985)]; compare, In the Matter of Mattiace, Order of the Commissioner, May 23, 1988 [no individual liability imposed, because no finding that either individual committed any act of omission or commission to the violations, and no finding that either individual had managerial responsibility for the operations where the violations occurred].

Staff's supporting Affidavits establish that Respondent Edgar applied for the initial permit to construct and operate each facility, on behalf of Respondent Productive Recycling Corp. Staff's documentation also establishes that during site inspections and inquiries concerning the operation at the facilities, Staff was directed exclusively to Respondent Edgar.

The SWMF permit applications, signed by Respondent Edgar under penalty of perjury, seek permits for the corporate entity, "Productive Recycling Corp."; an entity which Respondent Edgar now swears by affidavit, does not exist. Respondent Edgar further swears by affidavit, that if such a corporate entity does exist, he has no association whatsoever with that business entity. If Productive Recycling Corp. does not exist, then it follows that, at a minimum, Respondent Edgar is properly held personally responsible for his actions in obtaining those permits, as well as for any liability which flows from his activities conducted under the guise of this fictitious corporate entity. Moreover, Respondents admit that Respondent Edgar is the President and sole shareholder of Productive Recycling, Inc.

In sum, facts in the record support Staff's assertion of individual liability over Respondent Edgar in this matter.

The fact that he is the sole shareholder, is directly responsible for operations at both sites and has managerial authority to prevent the violations, is sufficient to establish individual liability over Respondent Edgar in this matter. Whether and to what extent he acted negligently or consciously wrongfully need not be proven to establish his liability, but is considered as one factor in recommending an appropriate civil penalty. Galfunt, supra.

Respondents do not contest jurisdiction over the corporate Respondent Productive Recycling, Inc., but do challenge Staff's jurisdiction over the corporate Respondent, Productive Recycling Corp. Respondents assert that the corporate Respondent Productive Recycling Corp. does not exist. Although Staff's reply does not establish the existence of Respondent Productive Recycling Corp., it does establish that Respondent Edgar filed permit applications to construct and operate each facility on behalf of Respondent Productive Recycling Corp. It is likely that Respondents have carelessly used the name "Productive Recycling Corp." interchangeably with "Productive Recycling, Inc.", and have conducted business under both names, and that only one corporate entity is involved. In any event, no harm is done, in retaining Respondent Productive Recycling Corp. as a party in this proceeding, since any finding of liability would be joint and several, at least with respect to the two corporate entities.

IV. Alleged Violations of ECL Permit Conditions and 6 NYCRR Part 360; and Request for Cease and Desist Order, and Closure Order

Staff alleges in its first cause of action in each motion, that Respondents failed to file a timely permit renewal for each of its facilities and that the initial permits have expired. Therefore, Staff asserts, Respondents are operating the two facilities absent SWMF permits, in violation of ECL 27-0707(1) and 6 NYCRR 360-1.7. On this basis, Staff requests an Order that operation of the facilities cease immediately and that the facilities be closed. However, Staff also seeks this relief in its second cause of action in each motion, based upon Respondents' intentional mismanagement of the two facilities in violation of the various regulatory provisions identified in the second cause of action of each motion. Notwithstanding my recommendations to the Commissioner regarding Staff's request for relief on its first cause of action, I find that cessation of operations and closure of both facilities should occur based upon Staff's theory in its second cause of action in each motion. Therefore, the discussion which follows, addresses the substantive violations alleged in Staff's second cause of action (of each motion), and its request for relief based upon a determination of those alleged violations. Following that section, is a discussion of timeliness of the permit renewal applications, raised by Staff's first cause of action (of each motion).

A. Kings Park Facility Violations Alleged in Staff's Second Cause of Action: Off-site migration of odors [SC#13 and 360-5.5(j)]

Staff alleges that Respondents failed to control off-site migration of odors on thirty-one (31) days. 6 NYCRR 360-5.5(j) requires that, "[t]he composting facility must be operated to control vectors and odors." SC#13 requires that, "[t]he processing and handling operations at the compost facility must be conducted in a manner such that off-site migration of odors are not objectionable, as is determined solely by the Department. In the event that off-site migration of odors exceeds a level acceptable to the Department, Productive Recycling Corporation shall immediately cease accepting material and comply with all recommendations imposed by the Department."

Staff asserts that Respondents have routinely continued to accept more material than they can process. Material continues to accumulate on-site, and decay. This results in repeated off-site migration of odors. The strong odors emanating from Respondents' accumulation of decaying material, severely impact nearby residential communities.

Respondents have not contested factual issues with respect to these allegations. By not denying these allegations, Respondents admit that the off-site migration of odors from the facility occurred. Respondents have failed to make any factual offer of proof. Instead, Respondents offer mere speculation as to whether other facilities in the nearby geographic area might also be responsible for off-site migration of odors from those other facilities. Respondents are, thereby, evasive and place undue accent on immaterial points. Respondents provide nothing by way of an offer of proof or facts, to support this speculation.

Respondents challenge Staff's facility inspection reports in that the reports identify a "sharp vinegar-like odor" both on-site and off-site, but do not equate that odor with a compost odor. Yet, Respondents do not deny that composting materials will produce such a vinegar-like odor. Staff equates that information in its papers in support of the present motion. Here, again, Respondents are evasive and place undue accent on immaterial points, in their reply to Staff's motion.

Furthermore, The affidavits of Mitrey, Carter, and the four neighboring citizens, submitted by Staff in support of its motion, describe a severe, continual problem of uncontrolled migration of odors off-site from Respondents' Kings Park facility. Those affidavits document thirty one (31) days of violation, and describe a continual offensive condition resulting from Respondents' acts and omissions in mismanagement of the site. Robert Mitrey states that Respondent Edgar has had complete control over the management of both facilities, and refused to cease acceptance of new material while too much unprocessed material had already accumulated on both sites. (Paragraph 17, Affidavit of Robert Mitrey [Kings Park & Commack], December 18, 1992).

This continual off-site migration of odors interferes with, and causes damage to, residents in nearby communities and also members of the public who may have occasion to frequent those communities. Staff's affidavits state that since Respondents' Kings Park facility commenced operation, Staff has received numerous complaints from private citizens describing the offensive odors emanating from Respondents' facility. The affidavits describe a noisome, malodorous stench emanating from Respondents' facility, and reported recurring health problems, including headaches, nausea, wheezing and watery eyes, burning sinuses and skin rashes. Particularly in the Summer months, when people normally spend more time outdoors, these odors are reportedly so strong and offensive that nearby residents are forced to remain indoors with windows closed, essentially "prisoners in their own homes".

Staff attributes the continual off-site migration of odors to Respondents' mismanagement of materials on-site - - primarily, Respondents' continued receipt and accumulation of bio-degradable materials on-site in the face of their failure to process and compost earlier received materials. Rather than being composted, these accumulated materials, without benefit of appropriate composting management techniques, cause the severe, offensive odor problem. Staff asserts the problem is exacerbated by other alleged violations, such as non-compliance with setback requirements. Respondents' conduct, and the resultant odor control problems, offend, interfere with and cause damage to the public.

I find no factual issue with respect to the alleged violation of migration of odors off-site.

Failure to submit a site regrading plan to Staff [Special Permit Condition (SC) #2]

Respondents concede that they have failed to submit a regrading plan. Therefore, no factual issue exists with respect to this allegation.

Failure to regrade the site to avoid ponding [SC#3] and failure to complete all construction at the site, within 30 days of issuance of the permit [SC#4]

Respondents contend that they did regrade the site, and installed storm drains, and catch basins to avoid ponding. However, since Respondents concede having failed to submit the regrading plan, it follows that the site could not have been regraded pursuant to an approved plan, as required by SC#3. With respect to the alleged violation of SC#4, Staff's allegations are that Respondents failed to perform the regrading, and therefore, failed to complete all required construction. No factual issue exists with respect to these allegations.

Occurrence of ponding on six (6) occasions [360-5.5(e)]

Respondents contend that Staff's proof on this allegation fails because it does not address meteorological conditions (rainfall) on the date of each alleged violation. The Affidavit of Respondent Edgar states that on several dates when Staff noted ponding, there was heavy rain. Respondents have raised an issue of fact, in the nature of an affirmative defense, regarding weather conditions on the six dates when ponding violations are alleged.

Failing to maintain minimum horizontal separation distances [360-5.5(g)]

Staff asserts that Respondents stored processed and compacted bio-degradable yard waste and wood chips within 50 feet of its property line, or within 200 feet of the nearest residence, 27 Pinetree Court, on 40 separate occasions (as set forth in Paragraph 12B, Affidavit of Rasheed Carter [Kings Park], December 22, 1992), in violation of 6 NYCRR 360-5.5(g). Respondents, by not denying this allegation, admit that they have failed to comply with horizontal setback requirements on at least forty (40) occasions.

In asserting that they have "endeavored to maintain" those setback requirements, Respondents imply that, in fact, the requirements have not been maintained. Thus, Respondents have not raised a factual issue with respect to the horizontal setback charge. Similarly, Respondents never state that the visual observations of Staff regarding setbacks are not accurate, but only that those observations are not further supported by any survey or technical study. The issue of whether such foundation is necessary to support Staff's visual observations is an issue of law, not fact. I find that the foundational information in paragraph 1 of the Affidavit of Rasheed Carter (dated December 22, 1992), is sufficient to support his visual observations of setback distances as further described in his affidavit. No factual issue exists with respect to this allegation.

Unacceptable waste handling [360-5.5(d)] and failing to compost properly [360-5.5(f)]

6 NYCRR 360-5.5(d) requires that a composting facility, ". . . must follow acceptable methods of composting which result in aerobic (e.g., with oxygen) biochemical degradation of the organic material received". 6 NYCRR 360-5.5(f) requires that, for yard waste composting facilities, "[t]he windrow construction and turning frequency must be sufficient to maintain aerobic conditions and to produce a compost product in the desired time frame."

Respondents do not challenge Staff's assertion that leaves from the Fall, 1990 season were still on-site on or about November, 1991. Instead, Respondents assert that Staff failed to allege whether those leaves were composted, and failed to allege what the required time frame is, for composting leaves. Respondents do assert that they use the windrow construction and turning frequency at the facility.

Staff relies upon Respondents' renewal application engineering report, in which Respondents say they only processed less than half of the incoming materials received between December, 1990 and July, 1991. In their own permit renewal application, Respondents admit they did not process incoming materials in a timely manner, causing accumulation of unprocessed material, resulting in approximately 60,000 cubic yards of unprocessed material being stored on-site during that time period, while Respondents continued to accept more material. (Carter/Kings Park Affidavit of December 22, 1992, citing Respondents' Engineering Report). Staff estimates that by December 22, 1992, Respondents had stored between 75,000 and 100,000 cubic yards of material on-site.

Staff's reliance on Respondents' permit renewal application and Engineering Report is insufficient to establish a violation in this case, by motion for summary order. Respondents are correct in asserting that Staff has failed to establish what time periods or methods are "acceptable" for storing, processing and composting of materials. However, Respondents do not deny that the materials they have accumulated on-site cause objectionable off-site odors. Instead, Respondents have raised an issue of fact limited to the techniques they employ for those materials which they attempt to compost. Regarding those materials, Respondents assert that they use the windrow construction and turning frequency at the facility. Staff's affidavit in support of these charges merely contains a conclusory statement that Respondents' continued acceptance of grass and leaves without processing or composting them, caused or contributed to odor problems at the site; and that Respondents' waste handling methods are, therefore, unacceptable. (Rasheed Carter Affidavit [Kings Park], December 22, 1992, Paragraph 15).

Accordingly, I find issues of fact with respect to the dates and quantities of materials received; what is the maximum acceptable time period for storing, processing and composting of materials; how long materials were stored on-site before processing and composting was completed; and what composting practices were utilizedAs discussed above, I find no issue with respect to the charge of off-site migration of odors, which relates to materials which Respondents either stored or processed, but made no attempt to compost. . Staff's motion on this allegation should be denied, but this allegation may be pursued at hearing.

Disposing of waste without authorization and failing to maintain and operate the facility in accordance with its intended purpose [360-1.5 and 360-1.14(g)]

Staff has failed to establish by its motion papers that Respondents have done more than mismanage the composting facility, and, in fact, have created a landfill, by disposing of solid waste at the facility. Nor has Staff established by summary motion, that the facility is being used for a purpose other than its intended purpose. Staff's motion on this allegation should be denied, but this allegation may be pursued at hearing.

Failing to operate in conformance with Part 360, permit conditions and the engineering report [SC#1]

This permit condition is a general directive to the permittee, requiring compliance with the specific provisions of the permit, applicable regulatory provisions, and the Engineering Report. The underlying allegations which form the basis for this charge are all separately addressed in Staff's motion. For these reasons, this allegation should be dismissed as duplicative.

Other remaining allegations

Respondents made no specific reply with respect to the following allegations. I find Staff's pleadings sufficient on these allegations. Therefore, no factual issues exist with respect to these allegations:

Respondents failed to complete all construction at the site within 60 days of permit issuance [SC#4];
Respondents failed to timely submit three quarterly reports, due in the months of April, July and October 1991 [SC#11];
Respondents failed to timely submit a revised contingency plan to control odors [SC#12];

Staff seeks an order requiring Respondents to stop receipt of additional materials at the Kings Park site (described by staff as a "cease and desist" order) and seeks an order requiring immediate closure based upon Respondents' alleged violations, as set forth in Staff's second cause of action. Considering the number and nature of violations Staff has substantiated, such relief is appropriate in this matter. Furthermore, the information presented in Staff's papers, including Affidavits from Staff and from citizens residing nearby the facility, clearly establish that Respondents' non-conforming operation of their Kings Park facility visits noisome, malodorous odors upon, and constitutes an unreasonable interference with, the surrounding residential communities' enjoyment of life and property. Such a condition should not be allowed to continue, especially during the Summer months, when people are more often outdoors.

B. Commack Facility Violations Alleged in Staff's Second Cause of Action: Off-site migration of odors [SC#9 and 360-5.5(j)]

Respondents make substantially the same arguments with respect to the Commack facility that Respondents made with respect to the Kings Park facility. Staff alleges at least four (4) occasions on which off-site migration of odors occurred. Respondents have not contested factual issues with respect to this allegation. In fact, by not denying these allegations, Respondents admit that the off-site migration of odors from the facility occurred. Respondents have failed to make any factual offer of proof. Instead, Respondents offer mere speculation as to whether other facilities in the nearby geographic area might also be responsible for off-site migration of odors from those other facilities. However, Respondents provide nothing by way of an offer of proof or facts, to support this speculation.

Similarly, Respondents challenge Staff's facility inspection reports in that the reports identify a "sharp vinegar-like odor" both on-site and off-site, but do not equate that odor with a compost odor. Respondents do not deny that composting materials will produce such a vinegar-like odor. Further, Staff equates that information in its papers in support of the present motion. Accordingly, I find no factual issue with respect to the alleged violation of migration of odors off-site.

Therefore, as discussed above, I find no factual issue with respect to the alleged violation of migration of odors off-site. I note, however, that Staff describes the problem of off-site migration of odors at the Commack facility as less serious than that at Kings Park.

Failing to maintain minimum horizontal separation distances [360-5.5(g)]

Staff alleges at least ten (10) occasions on which this violation occurred. Respondents make substantially the same arguments with respect to the Commack facility that they made with respect to the Kings Park facility. As discussed above, Respondents have not raised a factual issue with respect to the horizontal setback charge.

Occurrence of ponding [360-5.5(e)]

Respondents make substantially the same arguments with respect to the Commack facility that Respondents made with respect to the Kings Park facility. Therefore, Respondents have raised an issue of fact regarding weather conditions on January 14, 1992, the date of the alleged violation.

Unacceptable waste handling [360-5.5(d)]

Respondents do not challenge Staff's assertion that leaves from the fall, 1990 season were still on-site on or about October, 1991. Instead, Respondents assert that Staff failed to allege whether those leaves were composted or not, and what is the required time frame for composting leaves. However, relying on Respondents' renewal application engineering report, Staff maintains that Respondents processed only slightly more than half of the incoming materials received between December, 1990 and October, 1991. In its renewal application, Respondents admit they did not process incoming materials in a timely manner, resulting in approximately 30,000 cubic yards of material being stored on-site, while more materials were being accepted. (Carter Affidavit of December 22, 1992).

However, Staff's reliance on Respondents' permit renewal application and Engineering Report is insufficient to establish this violation by motion for summary order. Staff has failed to establish what time period is unacceptable. Therefore, I find issues of fact with respect to this charge regarding the dates and quantities of materials received, what is the maximum acceptable time period for storing, processing and composting of materials, how long materials were stored on-site before processing and composting was completed and what composting process was utilized. Staff's motion on this allegation should be denied, but this allegation may be pursued at hearing.

Disposing of waste without authorization and failing to maintain and operate the facility in accordance with its intended purpose [360-1.5 and 360-1.14(g)]

Staff has failed to establish by its motion papers that waste has been disposed of, at the facility, nor that the facility is being used for a purpose other than its intended purpose.

Failing to operate in conformance with permit conditions and the engineering report [SC#1]

This permit condition is a general directive to the permittee, requiring compliance with the specific provisions of Part 360 and the Engineering Report. The underlying allegations which form the basis for this charge are all separately addressed in Staff's motion. For these reasons, this allegation should be dismissed as duplicative.

Other remaining allegations

Respondents made no specific reply with respect to the following allegations. I find Staff's pleadings sufficient on these matters. Therefore, no factual issues exist with respect to these allegations:

Respondents failed to timely submit a revised contingency plan to control odors [SC#8];
Respondents failed to timely submit three quarterly reports, due in April, July and October, 1991. [SC#7];
Respondents failed to install a water supply well and hydrants [SC#10];
Respondents failed to control dust at the site on September 18, 1992 [360-1.14(1)].

Staff seeks an order requiring Respondents to stop receipt of additional materials at the Commack site and seeks an order requiring immediate closure based upon Respondents' alleged violations, as set forth in Staff's second cause of action. Considering the number and nature of violations Staff has substantiated in its motion, such relief is appropriate in this matter.

V. Timeliness of Permit Renewal Applications

A. Preliminary Matters

The issue of timeliness of permit renewal applications affects both Respondents' authority to continue operating the facilities subsequent to the expiration date of the initial permits, and also Respondents' liability for penalties from the date of initial permit expiration, in the event Respondents are found to be operating the facilities absent such authority. Since the issue of authority to continue operating each facility has been determined in the context of alleged substantive violations, discussed above, the discussion of timeliness of permit renewal applications, focuses primarily on the issue of whether penalties may be imposed in the event the application is determined to be untimely.

Staff asserts that SWMF permit renewal applications must be received by Staff at least 180 days before expiration of the existing SWMF permit to operate. Respondents reply that the renewal applications need to be filed only 30 days prior to permit expiration. Neither party disputes the underlying fact that Respondents filed the permit renewals. Therefore, the issue presented in the first cause of action in each motion is an issue of law, e.g., what is the applicable minimum time period, prior to expiration of the existing permit to operate, in which a timely permit renewal application must be submitted.

Respondents also argue, with respect to the Commack facility, that although its permit renewal was concededly filed with Staff only 17 days prior to expiration of the existing permit, this untimely filing nonetheless substantial compliance with the time periods established under uniform procedures, and therefore should be deemed timely.

Lastly, Respondents assert that if the application is timely, then Staff must notify the applicant within 15 days whether the application is complete (see, ECL 70-0115[2]); and that because no such notification occurred with respect to its two renewal applications, those applications are deemed complete, by operation of law (e.g., ECL 70-0109[1][b]).

Respondents contend that they submitted timely SWMF (Part 360) renewal applications for both facilities, relying upon the above cited statutory and regulatory interpretations. However, Respondents confuse "complete" application under Uniform Procedures (ECL Article 70) with "sufficient" application under SAPA and 6 NYCRR Part 621 (SAPA 401[2] and 6 NYCRR 621.13[i]). Respondents mistakenly equate a determination of complete application (in this case, by operation of law), with authority to continue to engage in the regulated activity by virtue of a "timely and sufficient" renewal application under SAPA 401(2) and 6 NYCRR 621.13(i).

If Respondents are found to have filed a timely and sufficient renewal for each facility, then each facility would be authorized to continue to operate under authority of the earlier-issued permit pursuant to SAPA 401(2) and 6 NYCRR 621.13(i), pending a determination by Staff on the renewal application (it is uncontroverted that Staff has not issued a letter of denial with respect to either of the permit renewals at issue). However, if the application is found to be in violation of the SAPA "timely and sufficient" requirements, then Respondents have no authority to continue operating during the pendency of the renewal, and could be held liable for continued operation of the facility without a permit.

B. Regulatory Inconsistencies

ECL Article 70 (Uniform Procedures), and 6 NYCRR Part 621 (Uniform Procedures) govern administration of applications for solid waste management facility permits, notwithstanding any inconsistent provisions of the ECL or any regulations of the Department. ECL 70-0107(2) and (3)(l); 6 NYCRR 621.2(m). 6 NYCRR 360-1.8(a)(2) states that the procedures of Part 621 govern the processing and review of renewal permits issued pursuant to Part 360. Part 621 provides that applications for permit renewal must be submitted no less than 180 days before permit expiration for major SWMF permits, and no less than 30 days before permit expiration for other - - e.g., minor - - SWMF permits. 6 NYCRR 621.13(a).

6 NYCRR 360-1.8(f), the regulatory authority cited by Staff, requires a renewal period of no less than 180 days for all SWMF permit renewal applications. However, minor project SWMF permit renewals, such as the present permit renewals, would require only a 30 day minimum filing time period under Part 621 (see, below, discussion of major/minor permit, IV. D. [Kings Park] and E. [Commack]). Therefore, Subpart 360-1.8(f) is inconsistent with both 6 NYCRR 360-1.8(a)(2) and the "no less than thirty days" permit renewal provisions of Subpart 621.13(a).

If Subpart 360-1.8(f) were read to apply only to major project SWMF permit renewals (renewals of SWMF permits to construct, for example), it would not conflict with Subpart 360-1.8(a)(2) and Part 621. Therefore, as applied to the facts of this case, 6 NYCRR 360-1.8(f) is superceded by the provisions of Part 621.

C. General Permit Condition #5

Staff cites General Permit Condition #5 as a second authority to support its assertion that permit renewal applications must be filed no less than 180 days before permit expiration. However, General Condition #5 of each permit merely reiterates the language of 6 NYCRR 360-1.8(f). These conditions, pre-printed on the permit form, are applicable to all SWMF permits issued by Staff. 6 NYCRR 621.13(a) provides that renewal application deadlines set forth in that subsection apply, unless otherwise stated as a special condition of the permit.

Therefore, this regulatory provision contemplates that in particular permit applications, a permit review time period in excess of that otherwise provided for by Part 621 may be appropriate. It authorizes the use of a lengthier time period, in Staff's discretion on a permit-specific basis, by special permit condition. However, since general permit conditions apply to all SWMF permit renewals, General Permit Condition #5, if effective, would eviscerate the provisions of ECL Article 70 and 6 NYCRR Part 621, regarding time periods for renewal of minor SWMF permits. Therefore, as applied to the facts of this case, General Permit Condition #5 is superceded by the provisions of Part 621.

D. The Kings Park Facility Permit Renewal

Staff issued SWMF Permit No. 1-4734-00276/00001 to Respondent Productive Recycling Corp. on January 17, 1991, to construct and operate a land clearing and yard waste solid waste management processing and composting facility at its Kings Park location. That permit contained an expiration date of January 16, 1992. The parties agree that Staff received Respondents' renewal application for this facility on December 5, 1991, forty-two (42) days before the expiration date of the existing permit. On January 13, 1992, Staff notified Respondents of suspension of processing of the Kings Park permit renewal application, pursuant to 6 NYCRR Part 621.3(f).

First, a determination must be made whether this permit renewal is a major or a minor project. Pursuant to 6 NYCRR 621.1(3)(l), a minor project is any action listed in Subpart 621.4, subject to the reservations of Subpart 621.3(c)(3), which are not applicable to the present matter. Subpart 621.4(m)(2)(v) defines minor permits to include permits to operate solid waste management facilities (as opposed to permits to construct). This is exactly the type of permit renewal Respondents sought for the Kings Park facilityStaff mistakenly ignores Subpart 621.4(m)(2)(v), and instead asserts that the renewal application for Kings Park is not an application for a minor permit, because it does not meet the requirements of Subpart 621.4(m)(2)(ii). That provision identifies permits for "yard waste composting facilities" as minor permits. Staff asserts that the permit renewal application is not within the meaning of "yard waste composting facility", because the previously issued initial permit granted authorization to "[c]onstruct and operate a land clearing and yard waste processing and compost facility" [emphasis added]. However, the issue of whether this activity is within the meaning of Subpart 621.4(m)(2)(ii) need not be pursued further, since it is clear that the Kings Park application for a "SWMF renewal permit to operate" is a minor permit within the meaning of 6 NYCRR 621.4(m)(2)(v).

Since renewal of the Kings Park SWMF permit to operate is a minor project, under 621.13(a), the required time period for renewal is, "not less than 30 days prior to expiration of the existing permit". The permit application, submitted more than thirty days before expiration of the existing permit, was timely. Further, Staff made no allegation regarding insufficiency of the application. Therefore, the permit renewal application should be deemed sufficient, and the continuing operation provisions of SAPA 401(2) and 6 NYCRR 621.13(i), should apply to the Kings Park facility. Accordingly, timeliness of the Kings Park permit renewal application is not a basis for cessation and closure of that facility, nor for imposition of penalties for alleged continued operation without a permit.

E. The Commack Facility Permit Renewal

Staff issued SWMF Permit No. 1-4734-00275/00001 to Respondent Productive Recycling Corp. on January 10, 1991, to construct and operate a land clearing and yard waste solid waste management processing and composting facility at its Commack location. That permit contains an expiration date of January 9, 1992. The parties agree that Staff received Respondents' renewal application for this facility on December 23, 1991, only 17 days before the expiration date of the existing permit.

It is uncontroverted that Respondents have ceased accepting waste at the Commack facility, as of January 1, 1993. Accordingly, with respect to the Commack facility, I understand Staff's request for cease and desist and closure orders to be a request for a Commissioner's Order terminating any Departmental authority to operate the Commack facility and ordering closure. Closure of the facility includes proper disposition of materials remaining on the site. Additionally, Respondents may be held liable for civil monetary penalties due to their continued unpermitted operation of the facility from January 9, 1992, through December 21, 1992, a total of 347 days, in the event they filed an untimely renewal application for this facility.

Respondents state that operations at the Commack facility have ceased, pursuant to a Stipulation entered into by Respondent Productive Recycling, Corp., and the Town of Smithtown. Nonetheless, Respondents seek, to obtain a renewal permit to operate this facility. It is uncontroverted that material remains on the site. Under the Department's regulatory program, storage of regulated materials constitutes continued operation of a facility. See, Krevolin Construction, Inc., et. al., Order of the Commissioner, April 20, 1991, Hearing Report Issue #3. Accordingly, Respondents are responsible for continued "operation" of the site, even if they are no longer accepting, processing or composting additional materials at the site. Respondents apparently recognize this fact, since their initial filings state that Respondent Productive Recycling, Inc., has and continues to operate a yard waste processing and composting facility at its Commack location; yet, Respondents' filings in reply state that Respondent Productive Recycling Inc., has ceased accepting yard waste at its Commack facility pursuant to a stipulation entered into by Respondent Productive Recycling, Corp., with the Town of Smithtown, on September 10, 1993.

Respondents assert that because the Commack facility is a "minor project" under 6 NYCRR Part 621, lateness of the renewal application should not be prejudicial. However, Respondents' position is not consistent with the plain language of the regulation requiring submittal of the renewal application at least 30 days before the existing permit's expiration. Therefore, the permit renewal application, submitted only 17 days before expiration of the existing permit, is untimely.

Therefore, Respondents are liable for civil monetary penalties, due to their continued unpermitted operation of the facility. Respondents engaged in continuing operation of the facility without a permit, in violation of ECL 27-0707(1) and 6 NYCRR 360-1.7, from January 9, 1992, through December 21, 1992, a total of 347 days of violation.

VI. Penalties

ECL 71-2703(1) provides for a maximum civil penalty of two thousand five hundred ($2,500) dollars, and an additional penalty of not more than one thousand ($1,000) dollars for each day during which such violation continues, for each violation of Title 7 of ECL Article 27, or any rule or regulation promulgated pursuant thereto, or any term of any permit issued pursuant thereto.

Staff seeks maximum penalties in this matter, due to Respondents' intentional, knowing and continued operation of the two facilities in violation of regulatory requirements. The information Staff presents, essentially uncontested by Respondents, is that Respondents continued to accept more material at the two sites than they could process or compost, and committed numerous regulatory violations in their operation and management of the two facilities. This resulted in an increasing accumulation of material at both facilities, and a problem with off-site migration of odors from both facilities, more severe at the Kings Park facility. Further, Staff has documented that Respondents have acted in bad faith in their intentional mismanagement of the two facilities.

Factors articulated in the Commissioner's Civil Penalty Policy, militate toward a greater, rather than more moderate, penalty assessment in this case. (Civil Penalty Policy, page 10, Issued 6/20/90). Several aggravating factors are cited by Staff to support its request for maximum penalty assessment in this matter. Respondents' continued accumulation of materials at the two sites, despite many directives from Staff to stop receiving additional material, and that the continued accumulation of material at each site was exacerbating the odor control problem. An indication of the severity of the odor problem at the two sites, is Staff's receipt of more than 200 citizen complaints regarding the two sites, including complaints from local civic groups and state and local elected officials, during the brief time period that Respondents had been operating the sites (approximately one year). The Regional Office received at least 120 complaints regarding off-site migration of odors from the Kings Park facility, and more than 80 telephone complaints regarding off-site migration of odors from the Commack facility. Staff identified the off-site migration of odors as much as two miles from the facilities.

A second aggravating factor is that Respondents altered a permit for its Kings Park facility, to show later effective and expiration dates. (Exhibit 1, Affidavit of Robert Berger [Kings Park], December 9, 1992). This altered permit was displayed at Respondents' Kings Park facility office, showing an effective date of January 17, 1992, and an expiration date of January 16, 1996. The altered permit was observed by Officer Berger when he accompanied Respondent Edgar into Respondents' site office on October 28, 1992, and was confiscated by Officer Berger.

Another aggravating factor is Respondents' creation of a potential fire hazard at both sites, through the accumulation of materials on the two sites, the violation of setback requirements, and, with respect to the Commack site, the failure to install a well and hydrants. In fact, Staff has documented the occurrence of a fire at the Commack facility on September 1, 1991. Affidavit of Rasheed Carter [Commack], December 22, 1992, Paragraph 12 and Exhibit G (Report of Fire Marshall Gooch [Town of Smithtown]). This fire was so serious that it required a response from eight fire departments. Once the fire was controlled, a constant fire watch ensued until September 3, 1991.

Had Respondents installed the required well and hydrants, it would have aided in controlling and extinguishing the fire. Respondents' violation of the setback requirements resulted in the presence of combustible piles of material as close as ten feet from the residence at 27 Pinetree Court. Additionally, the accumulation of material at the site contributed to restricted access for the fire department vehicles.

Staff has presented information regarding Respondents' economic benefit from the two facilities (Penalty Policy, page 5)Staff asserts that Respondents generated revenues at each facility by acceptance of materials for processing, and also by the sale of finished product. By affidavit, Regional Solid Waste Engineer Robert Mitrey, estimates that Respondents earned gross revenues of approximately $1,440,000 at Kings Park and $700,000 at Commack, for receipt of materials at the two facilities, a combined revenue of approximately $2,140,000. Affidavit of Robert Mitrey, December 18, 1992 [Kings Park and Commack]. Additionally, Respondents reported sale of finished material from Kings Park, generating revenue of $232,000, and from Commack, generating revenue of $192,000, an additional combined revenue of $424,000. Therefore, Respondents earned a combined total gross revenue of $2,564,000 from both facilities. Respondents have not challenged Staff's calculations in their responsive papers.

This information is less important in evaluating penalty assessment, due to the aggravating factors discussed above which provide the basis for my recommendation on penalty assessment in this matter.

Respondents assert that penalties sought in this proceeding are inequitable and unconstitutional. Generally, constitutional issues are not properly raised before an administrative agency. However, regarding Respondents' argument of duplication of charges, the Commissioner has previously held that the violation of two regulatory provisions can only sustain separate penalties when the proof of one contains some element different from the proof of the other. In the Matter of Steck and Philbin, Commissioner's Order, March 21, 1993. Consistent with that holding, duplicative charges have been grouped together in the discussion section.

Respondents also argue that penalties sought by Staff are inequitable. Respondents assert that they lost annual revenues of approximately $600,000 due to the Town's cancellation of its contract with Respondents. Further, Respondents state that they have undertaken the expense of cleaning and regrading of the Commack facility for the owners of that property, pursuant to the Stipulation with the Town of Smithtown (and that they have offered to comply with Staff directives in performing that work). Respondents assert that closure of the Commack facility has placed a tremendous financial burden upon them, without any other supplemental means of income available, and that these factors should be considered mitigating factors.

The Commissioner's Civil Penalty Policy, however, articulates the principle that ability to pay should not be a factor in determining the amount of penalty imposed, but may be considered in arriving at a method or structure for payment of final penalties. (Civil Penalty Policy, page 10, Issued 6/20/90). Regarding a structured payment schedule, the Civil Penalty Policy states that an ability to pay adjustment will normally require a significant amount of financial information specific to the violator, and that the burden to demonstrate inability to pay rests with the Respondent. An unsupported or inadequately supported claim of inability to pay, should not be accepted. (Civil Penalty Policy, page 10). In applying the above guidance to the present matter, Respondents have not provided any business records, federal income tax returns or other financial documentation to support their claim of inability to pay a civil penalty. Accordingly, ability to pay should not be a factor in imposing a monetary penalty in this case.

Due to Respondents' intentional and continued operation of the two facilities in violation of regulatory requirements and other aggravating factors described above, a recommendation of maximum penalty assessment is appropriate.

CONCLUSIONS

The provisions of the Uniform Procedures Act, ECL Article 70, and 6 NYCRR Part 621, govern timeliness of SWMF permit renewal applications.
As applied by Staff in this matter, 6 NYCRR Part 360-1.8(f) is inconsistent with the provisions of ECL Article 70 and 6 NYCRR Part 621.
As applied by Staff in this matter, General Permit Condition #5 of each SWMF permit issued to Respondents, is inconsistent with the provisions of ECL Article 70 and 6 NYCRR Part 621.
Under Part 621, the applicable deadline for submittal of permit renewal application for the minor SWMF permits under review is 30 days before expiration of the existing permit.

Kings Park
The charge of failing to file a permit renewal application at least 180 days before permit expiration [360-1.8(f)(1)], should be dismissed. The Kings Park permit renewal, submitted forty-two (42) days before expiration of the existing permit, was timely and sufficient.
Respondents violated SC#2, by failing to submit a site regrading plan to Staff.
Respondents violated SC#3, by failing to regrade the site pursuant to an approved plan, to avoid ponding, and, consequently, violated SC#4, by failing to complete all construction at the site within 60 days of permit issuance.
Respondents violated SC#12, by failing to timely submit a revised contingency plan to control odors, due within thirty days of January 17, 1991, the effective date of the initial permit.
Respondents violated SC#13 and Part 360-5.5(j), by not controlling the off-site migration of odors, on thirty-one (31) occasions.
Respondents violated Part 360-5.5(g), by failing to maintain minimum horizontal separation distances on forty (40) occasions.
Respondents violated SC# 11, by failing to timely submit quarterly reports, due in April, July and October, 1991.
Respondents raised issues of fact with respect to the charges of unacceptable waste handling and failing to compost properly at the Kings Park facility [360-5.5(d) and (f)], regarding the dates and quantities of materials received, what is the maximum acceptable time period for storing, processing and composting of materials, how long materials were stored on-site before processing and composting was completed and what composting process was utilized.
Respondents have raised an issue of fact, in the nature of an affirmative defense, regarding prevailing weather conditions at the Kings Park site on dates when ponding violations are alleged [360-5.5(e)].
Staff has failed to establish by its motion papers that waste has been disposed of, at the facility, or that the facility is being used for a purpose other than its intended purpose [360-1.5 and 360-1.14(g)].
The charge of failing to operate in conformance with Part 360, permit conditions and the engineering report [SC#1] should be dismissed as duplicative.
Respondents' non-conforming operation of the Kings Park facility constitutes an unreasonable interference with the surrounding residential communities' enjoyment of life and property.

Commack
The Commack permit renewal, submitted 17 days before expiration of the existing permit, was not timely submitted. Therefore, that facility has been operating without a permit, in violation of ECL 27-0707(1) and 6 NYCRR 360-1.7, from the date of expiration of the facility's existing permit, on January 9, 1992 through December 21, 1992, three hundred and forty-seven (347) days of violation.
Respondents violated SC#8, by failing to timely submit a revised contingency plan to control odors, due within 30 days of January 10, 1991, the effective date of the initial permit.
Respondents violated SC#9 and 360-5.5(j), by not controlling off-site migration of odors on four (4) occasions.
Respondents violated Part 360-5.5(g), by failing to maintain minimum horizontal separation distances on ten (10) occasions.
Respondents violated SC#7, by failing to timely submit quarterly reports, due in April, July and October, 1991.
Respondents violated SC#10, by failing to install a water supply well and hydrants.
Respondents violated Part 6 NYCRR 621.13(a), by failing to file a permit renewal application at least 180 days before permit expiration.
Respondents violated Part 360-1.14(l), by failing to control dust on September 18, 1992.
Respondents violated Part 360-5.5(g), by failing to maintain minimum horizontal separation distances on ten (10) occasions.
Respondents have raised an issue of fact, in the nature of an affirmative defense, regarding prevailing weather conditions at the Commack site on January 14, 1992, the date of the alleged ponding violation [360-5.5(e)].
Respondents have raised an issue of fact with respect to the charge of unacceptable waste handling practices at the Commack facility [360-5.5(d)], regarding the dates and quantities of materials received, the maximum acceptable time period for storing, processing and composting of materials, and how long materials were stored on-site before processing and composting were completed.
Staff has failed to establish by its motion papers that waste has been disposed of, at the facility, or that the facility is being used for a purpose other than its intended purpose [360-1.5 and 360-1.14(g)].
The charge of failing to operate in conformance with Part 360 and the engineering report [SC#1] should be dismissed as duplicative.

RECOMMENDATIONS

The Commissioner should find that Staff has properly asserted liability against all of the named Respondents in this proceeding. Any sanctions imposed in this matter should be imposed jointly and severally upon all the Respondents.
The Commissioner should find that a permit renewal to continue operation of a SWMF, must be submitted thirty (30) days, not one hundred and eighty (180) days before expiration of the existing permit; that the provisions of 6 NYCRR Part 621 govern time periods for renewal of SWMF permits to operate; and, as applied to the facts of this case, 6 NYCRR 360-1.8(f) and General Permit Condition #5 are superceded by the provisions of Part 621.
The Commissioner should find that the Kings Park permit renewal, filed 42 days before expiration of the existing permit, was timely and sufficient. Nonetheless, due to Respondents' intentional mismanagement of the Kings Park facility, in violation of many regulatory requirements, the Commissioner should grant Staff's request for immediate cessation of all activities at the facility, and require immediate closure of the facility, pursuant to a closure plan and time schedule to be approved by Staff.
The Commissioner should find that the Commack permit renewal, filed only 17 days before expiration of that existing permit, was not timely. However, more importantly, due to Respondents' intentional mismanagement of the Commack facility, in violation of many regulatory requirements, the Commissioner should grant Staff's request for immediate cessation of all activities at the facility, and require immediate closure of the facility, pursuant to a closure plan and time schedule to be approved by Staff.
The Commissioner should find no disputed issues of fact regarding Respondents' liability on those violations identified in Conclusions Nos. 6 through 11 and 18 through 25, and should find Respondents liable for those violations. Monetary penalties should be assessed for those violations as follows:

Kings Park

violation of SC#12, failing to timely submit a revised contingency plan to control odors, due within thirty days of January 17, 1991, the effective date of the initial permit: $2,500;
violation of SC#13 and Part 360-5.5(j), failing to control the off-site migration of odors, on thirty-one (31) occasions: $77,500;
violation of SC#2, failing to submit a site regrading plan to Staff: $2,500;
violation of SC#3, failing to regrade the site pursuant to an approved plan, to avoid ponding, and violation of SC#4, failing to complete all construction within 30 days after the effective date of the initial permit: $2,500;
violation of 6 NYCRR 360-5.5(g), failing to maintain minimum horizontal separation distances on forty (40) occasions: $100,000;
violation of SC# 11, failing to timely submit quarterly reports, due in April, July and October, 1991: $7,500;

Commack
1. violation of ECL 27-0707(1) and 6 NYCRR 360-1.7, operation of a SWMF without a valid permit issued by the Department: three hundred and forty-seven (347) days of violation, $2,500 for the first day and $1,000 per day for the remaining 346 days, a civil penalty of $348,500;
2. violation of SC#8, failing to timely submit a revised contingency plan to control odors, due within 30 days of January 10, 1991, the effective date of the initial permit: $2,500;
3. violation of SC#9 and 360-5.5(j), failing to control off-site migration of odors on four (4) occasions: $10,000;
4. violation of Part 360-5.5(g), failing to maintain minimum horizontal separation distances on ten (10) occasions: $25,000;
5. violation of SC#7, failing to timely submit quarterly reports, due in April, July and October, 1991: $7,500;
6. violation of SC#10, failing to install a water supply well and hydrants: $2,500;
7. violation Part 360-1.14(l), failing to control dust on September 18, 1992: $2,500;
8. violation of Part 360-5.5(g), failing to maintain minimum horizontal separation distances on ten (10) occasions: $25,000;
  
  A civil monetary penalty of $192,500 with respect to the Kings Park facility, and $423,500 with respect to the Commack facility; a total monetary penalty of 616,000, which should be due and payable within thirty (30) days of service upon Respondents of a conformed copy of the Order.
9. The alleged violations identified in Conclusions Nos. 12 through 14 and 26 through 28, present triable issues of fact and remain with the Administrative Law Judge, to be resolved at hearing. Further scheduling of those matters should be determined by the Administrative Law Judge.
10. The alleged violations identified in Conclusion Nos. 15 and 29 should be dismissed.
Albany, New York

___________________________
Kevin J. Casutto
Administrative Law Judge

Department of Environmental Conservation

Productive Recycling, Inc. - Order, June18, 1993

Order, June 18, 1993

WHEREAS:

PROCEEDINGS

THE DEPARTMENT STAFF'S POSITION

The Charges

Kings Park

Commack

The Relief

RESPONDENT'S POSITION

The Reply and Sur-reply

FINDINGS OF FACT

DISCUSSION

I. Introduction

II. Standard of Review

III. Parties to the Proceeding

IV. Alleged Violations of ECL Permit Conditions and 6 NYCRR Part 360; and Request for Cease and Desist Order, and Closure Order

A. Kings Park Facility Violations Alleged in Staff's Second Cause of Action: Off-site migration of odors [SC#13 and 360-5.5(j)]

B. Commack Facility Violations Alleged in Staff's Second Cause of Action: Off-site migration of odors [SC#9 and 360-5.5(j)]

V. Timeliness of Permit Renewal Applications

A. Preliminary Matters

B. Regulatory Inconsistencies

C. General Permit Condition #5

D. The Kings Park Facility Permit Renewal

E. The Commack Facility Permit Renewal

VI. Penalties

CONCLUSIONS

RECOMMENDATIONS

Kings Park

Department of Environmental Conservation

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Department of Environmental Conservation

Productive Recycling, Inc. - Order, June18, 1993

Order, June 18, 1993

WHEREAS:

PROCEEDINGS

THE DEPARTMENT STAFF'S POSITION

The Charges

Kings Park

Commack

The Relief

RESPONDENT'S POSITION

The Reply and Sur-reply

FINDINGS OF FACT

DISCUSSION

I. Introduction

II. Standard of Review

III. Parties to the Proceeding

IV. Alleged Violations of ECL Permit Conditions and 6 NYCRR Part 360; and Request for Cease and Desist Order, and Closure Order

A. Kings Park Facility Violations Alleged in Staff's Second Cause of Action: Off-site migration of odors [SC#13 and 360-5.5(j)]

B. Commack Facility Violations Alleged in Staff's Second Cause of Action: Off-site migration of odors [SC#9 and 360-5.5(j)]

V. Timeliness of Permit Renewal Applications

A. Preliminary Matters

B. Regulatory Inconsistencies

C. General Permit Condition #5

D. The Kings Park Facility Permit Renewal

E. The Commack Facility Permit Renewal

VI. Penalties

CONCLUSIONS

RECOMMENDATIONS

Kings Park

Department of Environmental Conservation

Programs

Services

Agency Information

Help

Using this Site

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