Opinion
September 27, 1985
Appeal from the Supreme Court, Herkimer County, Shaheen, J.
Present — Hancock, Jr., J.P., Callahan, Denman, O'Donnell and Schnepp, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: Respondent's determination that petitioner operated its landfill facility in contravention of ECL article 17 and 6 N.Y.CRR part 360 is supported by substantial evidence in the record (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176; Matter of Haz-O-Waste Corp. v Williams, 103 A.D.2d 1001). Engineers employed by respondent testified at the hearing that when they visited the site they observed leachate flowing into an adjacent creek and evidence indicating that petitioner was not providing daily cover of garbage (see, 6 NYCRR 360.8 [a] [3]; [b] [1] [vii] [c]). Moreover, the $1,500 civil penalty and directive that petitioners close the facility within a six-month period were not "`"so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness"'" (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233).