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Giambrone v. Grannis
Citations: 88 A.D.3d 1272; 930 N.Y.2d 735
Court: Appellate Division of the Supreme Court of the State of New York; October 7, 2011; New York; State Appellate Court
Petitioners initiated a CPLR article 78 proceeding to annul a March 17, 2010 determination by the New York State Department of Environmental Conservation (DEC), which imposed a civil penalty of $109,500 for violating DEC regulations related to hazardous waste management and petroleum discharge. The violations stemmed from actions taken by Douglas J. Giambrone, president of Marcon Erectors, Inc., who directed the removal of a storage tank's top in the mid-1980s, exposing its hazardous contents, including PCBs, to the environment. A complaint about a spill was filed in 1995, but remediation efforts did not begin until 1997. An administrative enforcement proceeding led to a determination of liability in December 2000, and although the liability was confirmed in a 2002 judgment, the penalty was vacated due to the absence of a hearing on the amount. A penalty hearing occurred in November 2007. Despite significant delays in the proceedings, the court rejected petitioners' claims that the case should be dismissed due to the lack of timely hearings or decisions, noting that the time frames in the DEC regulations were not mandatory and that petitioners failed to demonstrate substantial prejudice from the delays. The court did find the imposed civil penalty excessive and disproportionate, citing the DEC's approval of the remediation contractor, who was partially responsible for the site conditions but faced a lower penalty. The court modified the determination, reducing the civil penalty to a maximum of $25,000. Remaining contentions from petitioners were deemed without merit. Judges present: Smith, J.P., Fahey, Peradotto, Lindley, and Sconiers.