Radesi, Anthony - Decision and Order, March 9, 1994
Decision and Order, March 9, 1994
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
-of-
Alleged Violations of Article 27 of the Environmental Conservation Law and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York
- by -
ANTHONY D. RADESI, LILLIE M. RADESI and DEPOT MT. MORRIS, INC.
Respondents
DECISION and ORDER
Case Nos.R8-0984-93-03
R8-1002-93-08
WHEREAS:
- Pursuant to Notices of Hearing and Complaints duly served on the Respondents on May 25, 1993 and August 30, 1993, an administrative enforcement hearing convened before Administrative Law Judge ("ALJ") Andrew S. Pearlstein on September 23, 1993 in the Department's Region 8 Office in Avon. The Region 8 Staff was represented by Lisa Perla Schwartz, Esq., Assistant Regional Attorney. The Respondents were represented by Ellen J. Coyne, Esq., of the firm of Woods, Oviatt, Gilman, Sturman & Clarke, of Rochester, New York.
- Upon a careful review of the ALJ's Hearing Report and the record of this proceeding, I concur with the Report's findings, conclusions, and recommendations.
- The Respondents have indisputably engaged in the storage of 28,000 waste tires without a permit, in violation of 6 NYCRR 360-13.1(b), since June 21, 1989, the date their liability began under the transition amendments applicable to waste tire storage facilities in the revised Part 360 regulations. The corporate Respondent, Depot Mt. Morris, Inc., has committed this violation since July 18, 1993 when it acquired the site from Mr. and Mrs. Radesi. This also constitutes a violation of 6 NYCRR 360-1.7(a)(1)(ii), operating a solid waste management facility without a permit. The individual Respondents, the Radesis, also failed to inform the Department as required by the transition regulation, 6 NYCRR 360-13.1(c)(1), of their intention to either close the site or apply for a permit.
- The fact that a former operator of the site, Paul Silsby, had executed a consent order in 1981 requiring him to remove the tires from the site does not excuse the Respondents from these violations.
- There is no legal basis on which to join the former owner of the site, the Consolidated Rail Corporation, as co-respondents in this proceeding. These charges stem only from 1989, when the solid waste regulations were revised, although the Respondents have owned the site since 1981. Now, after two fires in the tire piles on the site, and the revision of the Part 360 regulations to explicitly regulate waste tire storage sites, the Respondents, as the site's sole owners and operators, are liable for its remediation.
- I further concur with the recommended penalty for the reasons discussed in the Report, and with the recommendation that Respondents post financial surety to secure remediation of the site.
NOW, THEREFORE, have considered this matter, it is ORDERED that:
- The Respondents Anthony D. Radesi, Lillie M. Radesi, and Depot Mt. Morris, Inc. shall jointly and severally pay a civil penalty of $40,000 (FORTY THOUSAND DOLLARS). However, $20,000 (TWENTY THOUSAND DOLLARS) of that amount shall be suspended, and then waived, provided Respondents satisfactorily complete remediation of the site as specified in paragraphs II and III below. This entire penalty shall be attributed to the violation of 6 NYCRR 360-13.1(b), storing over 1000 waste tires without a permit.
- Respondents shall remove all waste tires from their site on Lackawanna Avenue in the Village of Mount Morris to an authorized facility by no later than June 30, 1994 unless otherwise extended by the Department.
- Respondents shall post financial surety in a form acceptable to the Department Staff in the amount of $42,000 (FORTY-TWO THOUSAND DOLLARS), to secure removal of the tires from the site. Such financial surety will remain in effect until one month after the completion of the removal to allow the Department Staff to inspect the site after the tires are removed to ensure it is properly closed.
- All communications between the Respondents and the Department Staff concerning this Order must be made to the Department's Region 8 Director, 6274 East Avon-Lima Road, Avon, New York 14414.
- The provisions, terms and conditions of this Order will bind the Respondents, their agents, servants, employees, successors and assigns, and all persons, firms and corporations acting for or on behalf of the Respondents.
For the New York State Department
of Environmental Conservation
_____________/s/_____________
By: Langdon Marsh, Acting Commissioner
Albany, New York
Dated: March 9, 1994
TO: Ellen J. Coyne, Esq.
Woods, Oviatt, Gilman, Sturman & Clarke
44 Exchange Street
Rochester, New York 14614
Lisa Perla Schwartz, Esq.
NYSDEC Region 8
6274 East Avon-Lima Road
Avon, New York 14414
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
PROCEEDINGS
On May 25, 1993 the Region 8 Staff of the New York State Department of Environmental Conservation (the "Department Staff") served a Notice of Hearing and Complaint on Lillie M. Radesi and Anthony D. Radesi, the individual Respondents, by personal service at their residence at 6444 Sonyea Road in Mount Morris, Livingston County, New York. On August 30, 1993 the Department Staff served another Notice of Hearing and Complaint on Depot Mt. Morris, Inc., the corporate Respondent, by delivering a copy to the Secretary of State's office in Albany, New York. On September 13, 1993 the assigned Administrative Law Judge, Andrew S. Pearlstein, consolidated the two proceedings into a single hearing upon motion by the Department Staff. The Complaints charge the Respondents with owning and operating a solid waste management facility, a waste tire storage site, without a permit.
The hearing took place on September 23, 1993 at the Department's Region 8 Office in Avon, New York. The Department Staff was represented by Lisa Perla Schwartz, Esq., Assistant Regional Attorney. All Respondents were represented by Ellen J. Coyne, Esq., of the firm of Woods, Oviatt, Gilman, Sturman & Clarke, Rochester, New York.
The Department Staff produced one witness in its direct case: John Thompson, an Environmental Engineering Technician at the Department's Region 8 Office in Avon. Staff also called a rebuttal witness, William Wideman, an Investigator with the Department's Bureau of Environmental Conservation Investigations.
The Respondent produced three witnesses: the Respondent Anthony D. Radesi; Steven E. Harvey, a former property manager for Conrail; and Stephen Betts, a Solid Waste Management Specialist with the Department's Central Office in Albany, formerly with Region 8.
The record of the hearing closed on December 10, 1993, upon the ALJ's receipt of the parties' post-hearing briefs and reply briefs.
Summary of Department Staff's Position
The Complaints charge the Respondents with violations of 6 NYCRR Part 360 concerning a site located on Lackawanna Street in the Town of Mount Morris. Staff alleges that approximately 28,000 waste tires have been and still are stored at this site, which was owned previously by the Radesis and is currently owned by Depot Mt. Morris, Inc. The Complaints against the Radesis allege that they failed to notify the Department of their intention either to continue operating the site or to close it after June 21, 1989, as required by 6 NYCRR 360-13.1(c)(1). Staff also charges all Respondents with operating a solid waste management facility without a permit at the site, in violation of 6 NYCRR 360-1.7(a)(1)(ii), and engaging in the storage of more than 1000 waste tires without a permit, in violation of 360-13.1(b).
The Department Staff opposed Respondents' motion to join the site's former owner and operator as co-Respondents in this proceeding. Staff responds that the site's former operator, against whom a Consent Order was executed in 1981, cannot be found, and the former owner could not be held liable under the solid waste regulations in effect at that time.
The Department Staff seeks an Order of the Commissioner imposing a civil penalty of $75,000 with $40,000 payable immediately and $35,000 suspended, provided Respondents remove all the waste tires to an approved facility and close the site within 60 days of such order. Staff also requests that Respondents be required to post financial surety of $42,000, the estimated costs of removal, to secure compliance with the Commissioner's order.
Summary of Respondents' Position
Respondents argue that neither the Radesis nor the corporate Respondent "operated" the waste tire site at any time or owned it at the time the tires were deposited there. Respondents contend the Department Staff should be compelled to join in this proceeding the site's former operator and owner as the parties who are actually responsible for the creation of the waste tire piles on the site. Respondents further assert it is unfair for the Department to pursue them when it failed to ensure enforcement of a 1981 Consent Order with the site's former operator that required him to remove the tires from the site. Therefore, Respondents seek dismissal of the charges or the joinder of the site's former operator and owner.
FINDINGS OF FACT
- On November 18, 1981 the Respondents Anthony D. Radesi and Lillie M. Radesi, of 6444 Sonyea Road, Mount Morris, New York 14510, purchased a 2.6-acre parcel of land in the Village of Mount Morris, Livingston County, New York (the "site"), from the Consolidated Rail Corporation, headquartered in Philadelphia, Pennsylvania ("Conrail"). The site fronts on Lackawanna Street in the Village of Mount Morris and is also contiguous to a railroad right-of-way. There is an old depot building on the site. The site is identified as section-block-lot number 106.15-1-81 on the Livingston County Tax Map.
- On July 19, 1993 Anthony D. Radesi and Lillie M. Radesi transferred the site to Depot Mt. Morris, Inc., a corporation with a business address of 140 North Main Street, Mt. Morris, New York 14510. That address is also the location of a restaurant owned by Mr. Radesi. Mr. Radesi is an officer of Depot Mt. Morris, Inc.
- Prior to the Radesis' purchase of the site in November 1981, it was used to store waste tires by one Paul Silsby, who leased the site from the former owner, Conrail. Mr. Silsby, who operated under the name Silsby Tire Company, received approximately 28,000 tires which he stored on the site. Those tires have remained on the site since that time.
- The Department Staff commenced an enforcement proceeding against Mr. Silsby in January 1981 by serving him with a Notice of Hearing and Complaint charging him with operating a solid waste management facility without a permit. This proceeding was resolved on March 6, 1981 when Mr. Silsby executed a Consent Order with the Department Staff. The Consent Order required Mr. Silsby to remove all the tires from the site by September 31, 1981. Mr. Silsby has never complied with this Consent Order.
- When the Radesis purchased the site in November 1981, they were aware of the tires on the site and that the Department Staff had required its former operator to clean up the site. Since that time the tires have remained on the site with essentially no change in the site's condition. Access to the site is controlled by a cable strung across the entrance on Lackawanna Street. Occasionally Mr. Radesi has allowed farmers to take a few tires for their use. Mr. Radesi uses the depot building for storing restaurant equipment and other items. None of the Respondents have allowed additional tires to be deposited at the site or have actively managed the waste tire piles on the site during the period of their ownership.
- A fire occurred in the waste tires on the site on December 3, 1983. It was quickly extinguished by the local fire department. In response to this event, the Department Staff renewed its enforcement efforts by serving or attempting to serve notices of hearing and complaints on Mr. Radesi and Mr. Silsby. The notice sent to Mr. Silsby was returned as not deliverable. Mr. Radesi did appear with his attorney at a prehearing conference on January 11, 1984. That enforcement proceeding was then dropped, however, and the Department Staff did not attempt to contact Mr. Radesi again until 1989.
- The Department made major revisions in its solid waste regulations, 6 NYCRR Part 360, that took effect on December 31, 1988. One of the changes was the removal of the exemption for recycling facilities (former 360.1[f][viii]) that could be claimed by such operations as junkyards and waste tire storage sites. That exemption first took effect on May 6, 1981, after Silsby executed the Consent Order. Effective December 31, 1988, waste tire storage facilities ("WTSFs") were specifically regulated under new Subpart 360-13. A later amendment to ECL 27-0703 shortened the time period for filing permit applications or closure plans for WTSFs to 90 days after the date of enactment, or by August 9, 1989. The Department then promulgated an emergency rule implementing this amendment, codified at 6 NYCRR 360-13.1(c)(1), which required owners or operators of WTSFs to notify the Department by June 21, 1989 of their intent to either apply for a permit or to close the site.
- To implement this rule, the Department Staff sent notices to the owners of all known WTSFs informing them that they were required to respond with a certified letter stating their intention to either close the facility or apply for a permit, due by June 21, 1989. The Department Staff sent such a notice to Mr. Radesi at his residential address, 6444 Sonyea Road, Mount Morris, New York 14510.
- Neither Mr. Radesi nor any of the other Respondents ever responded with a letter stating their intention to either close the site or apply for a permit. None of the Respondents have submitted an application for a permit to operate a solid waste management facility and none have ever possessed such a permit.
- On October 25, 1991 another fire occurred in the tires at the site. After this, the Department Staff again contacted Mr. Radesi in an attempt to get the site cleaned up. Mr. Radesi again attended a conference at the Region 8 Office in January 1992 to discuss the site.
- The estimated cost of removal of the tires at the site to the Modern Landfill near Buffalo, New York, including transport, is about $1.50 to $2.00 per tire. The total cost at the lower end of the estimate to remove the tires from Respondents' site would be about $42,000. An incinerator near Syracuse operated by New York State Electric & Gas Company may also be able to accept the tires, as well as other more distant facilities.
- Mr. Silsby has not been heard from since 1981. Recent attempts by the Department's Bureau of Environmental Conservation Investigations to locate him have been unsuccessful.
DISCUSSION
Liability of the Respondents
Unpermitted Operation of a Solid Waste Management Facility
The Department Staff charges the Radesis with operating a solid waste management facility without a permit from June 21, 1989, in violation of 6 NYCRR 360-1.7(a)(1)(ii), and engaging in the storage of more than 1000 waste tires without a permit in violation of 360-13.1(b). The same charges are made against Depot Mt. Morris, Inc. from July 18, 1993, when it acquired the site, continuing to the present. Although the Radesis acquired the site in 1981, Staff has not alleged this violation while the previous Part 360 regulations were in effect. There is no dispute that the Respondents have owned the site during all relevant times, but Respondents claim that their ownership and inactive management of the site does not render them "operators" of the site within the meaning of the regulations.
In this argument, Respondents take a much too narrow view of the meaning of the verb "to operate" or the noun "operator." For the purposes of the solid waste management regulations, "operator" is defined at 6 NYCRR 360-1.2(b)(104) 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 at the facility."
During their respective periods of ownership, the Respondents were the only persons (or corporation) who had authority to implement decisions regarding the facility. If there is no other person leasing the site or otherwise acting to operate it, it may be presumed that the owners of the site are also the operators. It is irrelevant that they exercised their authority minimally by essentially just storing the tires. That storage, as well as the control of access to the site and the occasional giving away of tires, fully constitutes operation of the site. Respondents' operation of the site, inactive as it was, did in fact contribute to the conditions that caused a fire in the tires in October 1991. When that occurred, Staff immediately met with the site's owner and operator, Mr. Radesi, the only person (with his wife) at that time with any authority to remediate those conditions on the site.
Moreover, the permit requirement specifically applicable to waste tire storage facilities, 6 NYCRR 360-13.1(b), does not speak in terms of "operation," but states that "no person shall engage in the storage of more than 1000 waste tires at a time without first having obtained a permit to do so pursuant to this Part." There is no dispute that the Respondents have engaged in the storage of approximately 28,000 waste tires at this site since the effective date of this regulation, December 31, 1988 (although their liability under the transition provisions does not begin until June 21, 1989). A waste tire storage facility is also defined as a solid waste management facility in 6 NYCRR 360-1.2(b)(145). Therefore Respondents operated their waste tire storage site without a permit in violation of 6 NYCRR 360-1.7(a)(1)(ii) and engaged in the unpermitted storage of waste tires in violation of 360-13.1(b).
-Failure to Notify Department of Intentions for Site
The Respondents are also charged with failing to notify the Department of their intentions to either close the site or apply for a permit, in violation of 6 NYCRR 360-13.1(c)(1). This regulation was promulgated to implement an amendment to ECL 27-0703(6) which established a 90-day transition period for the permitting or closing of existing waste tire storage facilities ("WTSFs"). It requires that by June 21, 1989, the owner or operator of each facility must send a certified letter to the Department stating their intention to either close or apply for a permit. To implement this regulation, the Department Staff sent notices to all known owners and operators of WTSFs in early June 1989.
The testimony of Staff's witness, John Thompson, established that Region 8 sent such a notice to Mr. Radesi at his 6444 Sonyea Road, Mount Morris address. Mr. Radesi testified he did not recall receiving it, and that he did not receive mail at his residence, but at his restaurant's business address. Even assuming Mr. Radesi did not receive the notice, he is still liable for not complying with 360-13.1(c)(1). The regulation does not require the Department to send notice to each WTSF, although Staff apparently did so in recognition of the fact that many owners and operators were unaware of the new requirement. The fact that Mr. Radesi did not receive the notice and was unaware of the requirement to inform the Department Staff of his intentions for the site could, however, be a mitigating factor in assessing an appropriate penalty. In any event, he was certainly made aware of the requirements in October 1991 when he met with Staff after the second fire at the site.
None of the Respondents have ever sent a certified letter to the Department in conformance with 6 NYCRR 360-13.1(c)(1). They are therefore liable for violating this regulation for their respective periods of ownership of the site since June 21, 1989, when such letter was due. However this violation, for the purposes of assessing a penalty, is superseded by the violation of storing waste tires without a permit.
Joinder of Additional Parties
Respondents have moved to join the site's former operator, Paul Silsby, and its former owner, Conrail, as co-respondents in this proceeding. The Respondents are disturbed that they are the sole targets of Staff's prosecution of this proceeding, although all the tires were deposited on their site before they acquired it. Moreover, the prior operator, Mr. Silsby, executed a Consent Order in 1981 requiring him to remove the tires, which he never complied with. However, there is no legal basis to join either Silsby or Conrail in this proceeding since the charges here date only from 1989. In addition, even under the most liberal application of the rules of joinder or third-party practice, it would not be proper to join those parties as co-respondents in this proceeding.
This proceeding is governed by 6 NYCRR Part 622 before its recent revision which took effect on January 9, 1994. Under former 622.12(c)(4) the hearing officer is authorized to add or drop parties on motion of any party. 622.12(c)(2) provided that nonjoinder of a necessary party as defined by the CPLR (Civil Practice Law and Rules) is a ground for dismissal of the hearing.
CPLR 1001(a) defines necessary parties as "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action . . ." Neither Silsby nor Conrail are necessary parties under this formulation. The Department Staff seeks penalties and remediation in this proceeding stemming from the Respondents' operation of a waste tire site only since December 31, 1988. The fact that Respondents inherited the tires on the site from Silsby when they bought the site from Conrail in 1981 is not even relevant to the actual charges alleged in the Complaint. Evidence of those circumstances was allowed as relevant to Respondents' defenses and in possible mitigation of penalties. At this point according complete relief between the Department Staff and Respondents cannot inequitably affect either Silsby or Conrail. Therefore this proceeding cannot be dismissed for the nonjoinder of those parties. Joinder of even a necessary party can be excused if jurisdiction over him cannot be obtained (see CPLR 1001[b]).
The joinder provisions in former 622.12(c)(4) can also be read as allowing permissive joinder or third-party practice similar to that provided in the CPLR 1002 and 1007. However, the events that led to Silsby's Consent Order and any past liability of Conrail took place over 12 years ago. There are no common questions of law or fact between those circumstances and Respondent's storage of tires since 1989 that might support permissive joinder under CPLR 1002. Therefore it is not necessary to address Respondent's arguments relating to the solid waste regulations in effect in 1981, and to Real Property Law 231(2), as potential bases for Conrail's liability.
Joining those parties as co-respondents would require creating two whole new causes of action against them, relating to Silsby's consent order and Conrail's involvement or knowledge, if any, of Silsby's illegal activity in 1981. With respect to Conrail, there is absolutely no factual basis to believe it could have been held responsible in 1981 or at any other time for the deposition of the waste tires on this site. The only possible remedy Respondents may have against Conrail, if they can show facts to support it, is for equitable contribution. Such a remedy may be appropriately sought in court, not in a Department administrative enforcement proceeding.
SAPA 301(1) - Hearing Within a Reasonable Time
Respondents also contend that they were not afforded an opportunity for a hearing within a reasonable time, contrary to the requirement of SAPA 301(1). They point out that the tire pile has remained on the site essentially unchanged since 1981. Staff was aware of the site and the need for its remediation continuously from then until the present. Staff at one point, in 1983-1984 began an enforcement proceeding against the Radesis that was later dropped. Respondents claim that if enforcement were pursued earlier on, they would have been in a better position to proceed against the former owner and operator of the site, Conrail and Silsby.
Respondent's SAPA argument is, however, fallacious. It loses sight of the fact that the charges in this proceeding stem only from 1989, when the amended solid waste regulations that eliminated the recycling exemption for waste tire storage facilities took effect. Respondents' storage of tires at the site continues to the present, well within a reasonable time of the commencement of this proceeding.
In addition, Respondents cannot rely solely on the Department Staff to force them or other parties to remediate the site. The Department Staff was apparently unsure whether or how to proceed under the regulations in effect from 1982 to 1988. Staff did in fact obtain an order against Silsby in 1981 under the regulations then in effect. The Radesis were equally well aware of all this in 1981, 1983 and at all other relevant times; yet they did nothing over the past 12 years to try to locate Silsby or negotiate with Conrail to remove the tires. The site is their property and their responsibility -- not the State's.
Penalties and Relief
The Department Staff seeks a civil penalty of $75,000 from Respondents, with $40,000 payable and the remaining $35,000 suspended, provided Respondents satisfactorily complete remediation of the site. Staff points out that this amount is far below the statutory maximum authorized by ECL 71-2703(1), which is $2500 plus $1000 per day for each day the violation continues, in this case since June 21, 1989. The proposed remediation would require Respondents to remove all the waste tires to an authorized facility within 60 days, and provide the Department a financial surety in the amount of $42,000, to secure the estimated cost of removal. Respondents argue that no penalty should be imposed since they did not create the tire piles, and they have cooperated with the Department Staff.
The parties presented little direct evidence on the factors to be considered in determining an appropriate civil penalty, with reference to the Commissioner's Civil Penalty Policy issued June 20, 1990. However, certain of the facts surrounding the history and present condition of the Respondents' waste tire storage site are relevant to the amount of an appropriate civil penalty.
The Respondents are not responsible for the disposal of the tires at this site, and have not received any financial benefit from their storage of tires. Their management of the tires has been totally passive. The presence of the tires is unrelated to Respondents' use of the building on the site. On the other hand, the waste tire piles do present the potential for significant environmental harm stemming from the risk of fire. There is no question that the tires must be removed, and that Respondents have stalled in this at least since early 1992 when they met with Staff after the second fire.
In balancing these factors, I find the amount of the civil penalty sought by Staff to be somewhat high. Respondents will incur substantial costs in remediating the site. A penalty must be assessed for Respondents' failure to remediate the site during the past two years, but it should not greatly exceed the cost of remediation.
Therefore I recommend assessing a civil penalty of $40,000 against Respondents, jointly and severally, with $20,000 payable and $20,000 suspended provided Respondents complete removal of the tires from the site. The violation of 6 NYCRR 360-13.1(b), engaging in the storage of waste tires without a permit, supersedes the other charges, and the entire penalty should be attributed to that violation.
Respondents should also be required to provide financial surety in the amount of $42,000 to further ensure they will properly carry out the remediation and closure of the site. If such surety were not required, Respondents could fail to comply with the order while paying a penalty less than the cost of remediation. Due to winter and spring weather, and likely frozen and wet ground conditions, Respondents should be allowed until June 30, 1994 to complete removal of the tires to an authorized facility and to close the site.
CONCLUSIONS
- Respondents Anthony D. Radesi and Lillie M. Radesi operated a solid waste management facility without a permit in violation of 6 NYCRR 360-1.7(a)(1)(ii), and engaged in the storage of more than 1000 waste tires without a permit in violation of 6 NYCRR 360-13.1(b), from June 21, 1989 until July 18, 1993. The Respondent Depot Mt. Morris, Inc. committed those same violations from July 18, 1993 to the present.
- The Respondents Anthony D. Radesi and Lillie M. Radesi failed to inform the Department Staff of their intention to either apply for a permit or close the site by June 21, 1989, or at any time after that date, in violation of 6 NYCRR 360-13.1(c)(1).
RECOMMENDATION
I recommend the Commissioner issue an order finding the Respondents liable for the above violations, and assessing a civil penalty of $40,000 with $20,000 payable and $20,000 suspended provided Respondents remove all tires from the site to an authorized facility by June 30, 1994. Respondents should also be required to post financial surety in a form acceptable to the Department in the amount of $42,000 to secure remediation of the site.
