Opinion
2011-10-7
In The Matter of Douglas J. GIAMBRONE and Marcon Erectors, Inc., Petitioners,v.Alexander B. GRANNIS, Commissioner, New York State Department of Environmental Conservation, and New York State Department of Environmental Conservation, Respondents.
Jonathan D. Estoff, Buffalo, Magavern Magavern Grimm LLP, for Petitioners.Eric T. Schneiderman, Attorney General, Albany (Adam J. Dobson of Counsel), for Respondents.
Jonathan D. Estoff, Buffalo, Magavern Magavern Grimm LLP, for Petitioners.Eric T. Schneiderman, Attorney General, Albany (Adam J. Dobson of Counsel), for Respondents.
MEMORANDUM:
Petitioners commenced this CPLR article 78 proceeding seeking to annul the determination of respondent New York State Department of Environmental Conservation (DEC) dated March 17, 2010 that, inter alia, imposed a civil penalty of $109,500 for the violation of 12 DEC regulations involving the generation and storage of hazardous waste (see 6 NYCRR parts 372, 373), as well as two statutes involving the discharge of petroleum ( see Navigation Law §§ 173, 175). In the mid–1980s, petitioner Douglas J. Giambrone, the president and chief executive officer of petitioner Marcon Erectors, Inc. (Marcon), directed that the top of a 25,000–gallon storage tank be removed. The tank was located on property owned by Giambrone and leased to Marcon, and the removal exposed the tank's contents to the environment. Those contents were subsequently determined to be sludge laden with polychlorinated biphenyls (PCBs) and other hazardous chemicals. In September 1995, the DEC received a complaint concerning a spill on the property where the tank was located, and petitioners did not begin remediation efforts until 1997. Respondent DEC Commissioner (Commissioner) determined in a subsequent administrative enforcement proceeding that there was no issue of fact concerning petitioners' liability, and on the recommendation of the Administrative Law Judge he granted the DEC's motion in December 2000 for “ order without hearing” pursuant to 6 NYCRR 622.12. In a subsequent CPLR article 78 proceeding, the liability determination was confirmed in a judgment entered March 25, 2002, but Supreme Court vacated the penalty imposed based on the lack of a hearing with respect to the amount. The penalty hearing was ultimately held on November 7, 2007.
Despite the inordinate delays that occurred in the administrative proceedings, we reject petitioners' contention that the proceedings should have been dismissed and the penalty vacated based on the failure to hold a hearing either “immediately” as provided in 6 NYCRR 622.12(f) or “within a reasonable time” as provided in State Administrative Procedure Act § 301(1). Moreover, we reject petitioners' further contention that dismissal of the proceedings is required due to the failure of the Commissioner to issue the decision and order within 60 days “after the close of the record” pursuant to 6 NYCRR 622.18(b)(1). Time limitations imposed upon administrative agencies by their own regulations are not mandatory ( see Matter of Dickinson v. Daines, 15 N.Y.3d 571, 575, 915 N.Y.S.2d 200, 940 N.E.2d 905, affg. 68 A.D.3d 1646, 892 N.Y.S.2d 727), and petitioners failed to establish that they suffered substantial prejudice resulting from the delays ( see id. at 577, 915 N.Y.S.2d 200, 940 N.E.2d 905; Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 178–179, 495 N.Y.S.2d 927, 486 N.E.2d 785, rearg. denied 66 N.Y.2d 1035, 499 N.Y.S.2d 1030, 489 N.E.2d 1304, cert. denied 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655; see also Matter of Corning Glass Works v. Ovsanik, 84 N.Y.2d 619, 625–626, 620 N.Y.S.2d 771, 644 N.E.2d 1327). Additionally, we note that, “[w]here ... legislation providing for an administrative determination explicitly prescribes the time frame for making a determination and provides that the agency is required to act within the specified time frame, there is ‘an unmistakable limitation on the [agency's] authority to act’ beyond that time frame” ( Dickinson, 68 A.D.3d at 1647, 892 N.Y.S.2d 727; see Matter of City of New York v. Novello, 65 A.D.3d 112, 116, 880 N.Y.S.2d 60, lv. denied 14 N.Y.3d 702, 2010 WL 520595; see generally Cortlandt Nursing Home, 66 N.Y.2d at 177–182, 495 N.Y.S.2d 927, 486 N.E.2d 785). Here, the Legislature provided no such time frame.
We agree with petitioners, however, that the civil penalty imposed “ ‘is so disproportionate to the offense as to be shocking to one's sense of fairness' ” ( Matter of Waldren v. Town of Islip, 6 N.Y.3d 735, 736, 810 N.Y.S.2d 408, 843 N.E.2d 1148, quoting Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321). The record establishes that the remediation contractor retained by petitioners to perform cleanup work at the site was approved by the DEC, and the contractor mishandled materials and was partially responsible for the site conditions but was subjected to a substantially lower DEC penalty. We conclude that the maximum civil penalty warranted against petitioners in this case is $25,000, and in the exercise of our discretion we therefore modify the determination by reducing the penalty accordingly ( see generally Matter of Murray v. Ilion Water Commn., 9 A.D.3d 903, 780 N.Y.S.2d 262; Matter of Vito v. Jorling, 197 A.D.2d 822, 824–825, 603 N.Y.S.2d 64). We have considered petitioners' remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the determination is unanimously modified on the law and in the exercise of discretion and the petition is granted in part by reducing the penalty to $25,000, and as modified the determination is confirmed without costs.