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Betke, Louis - Decision & Order June 12, 1997

Decision & Order June 12, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Part 650 of Title 6 of the New York Code of Rules and Regulations

- by -

LOUIS BETKE

Respondent.

DECISION AND ORDER

File No. R4-1914-96-10

WHEREAS:

  1. On March 24, 1997, Staff of the Department of Environmental conservation served a motion for order without hearing upon Louis Betke (the Respondent), the operator of the Village of Coxsackie wastewater treatment plant. Such motion requested an order revoking the Respondent's certificate as a wastewater treatment plant operator.
  2. As authorized by the Department's regulations, Mr. Betke by his counsel, Joseph Stanzione, filed a response to the motion, requesting that it be denied.
  3. Administrative Law Judge (ALJ) Edward Buhrmaster determined that the Department's motion for order without hearing should be granted, although he recommended a one-year suspension of the certificate, rather than the revocation requested by Department Staff.
  4. Upon review of the record and the ALJ's hearing report, I hereby adopt the report, including its Findings of Fact, Conclusion of Law, and Recommendation as my own.

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

  1. The Respondent's certificate as a wastewater treatment plant operator is suspended based on his practicing fraud and deceit in the performance of his duties.
  2. The suspension shall be for a one-year period following the effective date of this Order.
  3. This Order shall become effective ten days after service by certified mail of a conformed copy upon the Respondent and his employer, the Village of Coxsackie.
  4. All communications by the Respondent to the Department Staff concerning this Order shall be made to Carl Johnson, Regional Director, NYSDEC Region 4 Headquarters, 1150 North Westcott Road, Schenectady, New York, 12306.

For the New York State Department
of Environmental Conservation

______________/s/______________
By: John P. Cahill, Acting Commissioner

Dated: June 12, 1997
Albany, New York

TO: Louis P. Betke
Superintendent of Wastewater
Village of Coxsackie
Main Street
Coxsackie, New York 12051

Louis P. Betke
62 Sleepy Hollow
Coxsackie, New York 12051

Joseph Stanzione, Esq.
Lewis & Stanzione
287 Main Street
P.O. Box 383
Catskill, New York 12414

Ann Lapinski, Esq.
NYSDEC Region 4 Headquarters - Legal Affairs
1150 North Westcott Road
Schenectady, New York 12306

The Honorable Henry Rausch
Mayor, Village of Coxsackie
38 Mansion Street
Coxsackie, New York 12051

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter of

Alleged Violations of Part 650 of Title 6 of the New York Code of Rules and Regulations by

LOUIS BETKE,

Respondent

File No. R4-1914-96-10

RULING AND REPORT ON

MOTION FOR ORDER WITHOUT HEARING

____________/s/____________
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

On March 24, 1997, Department of Environmental Conservation (DEC) Staff served a motion for order without hearing upon Louis Betke (Respondent), the operator of the Village of Coxsackie wastewater treatment plant. Staff seeks to revoke Mr. Betke's certificate as a wastewater treatment plant operator for alleged fraud and deceit in the performance of his duties, pursuant to Section 650.10(c) of Title 6 of the New York Code of Rules and Regulations [6 NYCRR 650.10(c)].

The motion, dated March 18, 1997, was made consistent with 6 NYCRR 622.12(a), which provides that "in lieu of or in addition to a notice of hearing and complaint, the department staff may serve, in the same manner, a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence." Attached to the motion, prepared by Staff attorney Ann Lapinski, were affidavits of Frederick Sievers, an environmental engineer with the Department's Division of Water, and Stephen Canfield, an investigator with the Department's Division of Public Protection.

As required by 6 NYCRR 622.12(c), the Respondent filed a response to the motion, dated April 14, 1997. The response included Mr. Betke's own affidavit and an affirmation of his attorney, Joseph Stanzione.

On April 28, 1997, I had a conference call with counsel for the parties, during which I requested certain additional documents and written argument. This was provided in subsequent submittals, and a second conference call was held on May 15, 1997. During this call, the parties waived an opportunity to make further responses, and it was agreed that the motion would be decided upon the existing record.

POSITIONS OF THE PARTIES

- - Position of the Department Staff

The Department Staff requests an order revoking the Respondent's certificate as a wastewater treatment plant operator and prohibiting his re-application for five years, after which he would again have to complete all necessary training, education and other requirements of the certification process.

As grounds for certificate revocation, the Department Staff claims the Respondent practiced fraud and deceit in the performance of his duties as operator of the village wastewater treatment plant in Coxsackie, Greene County. More particularly, the Department Staff cites the Respondent's guilty plea to one count of forgery in the second degree, a Class D felony, based on his falsification of a laboratory report of a March 29, 1993, sample of the treatment plant's effluent.

According to the Department Staff, the Respondent's conduct demonstrates that he is unqualified and unsuited to be entrusted with the significant responsibilities of a wastewater treatment plant operator. Furthermore, Staff requests that its motion be granted since there are no material issues of fact which warrant a hearing in this matter.

- - Position of the Respondent

The Respondent requests that the motion to revoke his certificate without a hearing be denied. He claims that revocation or suspension would be unfair and improper under the circumstances, and that, at the least, it would be inappropriate to take any action without a hearing.

The Respondent notes that he has worked for the Village of Coxsackie for 19 years, and continues even now to work hard as its wastewater treatment plant operator. He says that several years ago, it became apparent that the plant was by far exceeding the volume of waste allowed by its Department-issued State Pollutant Discharge Elimination System (SPDES) permit, due primarily to the expansion of the state's Coxsackie Correctional Facility. According to the Respondent, Department Staff was well aware of the expansion as well as the plant's inability to operate within permit limits.

The Respondent claims that he advised both the Department and the Coxsackie Village Board that the plant needed expansion to operate in accordance with its permit, but that more than one year went by without approval to expand the plant. He adds that after he was indicted, DEC, the state's Department of Correctional Services, and the Village of Coxsackie moved swiftly to approve a $2.3-million plant expansion. According to the Respondent, since the date of his sentence (June 25, 1996) to the completion of the plant expansion (March 1997) the Department made no attempt to limit his control of the plant or terminate his certificate.

The Respondent has included with his papers a Certificate of Relief from Disabilities. This certificate was issued by the sentencing judge on April 3, 1997, pursuant to Section 701(3) of the state's Correction Law. The Respondent also notes that in sentencing him, the judge denied the state's request to revoke his certificate.

In summary, the Respondent argues that DEC's revocation demand is arbitrary and inappropriate in light of support he has received from his sentencing judge, the Coxsackie village mayor, his probation officer, and the general public. He claims that the Department's own representatives who oversee the plant are happy with his work and believe he presents no risk to its operation.

RULING ON MOTION FOR ORDER WITHOUT HEARING

A contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action is established sufficiently to warrant granting summary judgment under the New York State Civil Practice Law and Rules (CPLR) [6 NYCRR 622.12(d)]. CPLR Section 3212 addresses motions for summary judgment; such motions are granted where a court finds there is no substantial issue of fact in the case and therefore nothing to try.

Here it is alleged that the Respondent, Louis Betke, practiced fraud and deceit in the performance of his duties as a wastewater treatment plant operator. This allegation does not require a hearing because the Respondent basically admitted it in court. Therefore, the Department Staff's motion is granted.

Furthermore, I find that the Respondent's certificate as a wastewater treatment plant operator should be suspended for one year. Disciplinary action is not precluded by Mr. Betke's Certificate of Relief from Disabilities and is warranted given the circumstances of his conduct. While the Department has authority to revoke the certificate, a one-year suspension is more appropriate, recognizing, as Staff's own papers do, that only one falsification was admitted and that it resulted in no particular documented environmental harm.

Even if true, the various allegations in the Respondent's papers would not support denial of the Department's motion or imposition of anything less than a one-year suspension. Therefore, a hearing on these facts is not necessary.

FINDINGS OF FACT

  1. The Respondent, Louis Betke, was certified by the Department as a wastewater treatment plant operator in August of 1978. He is certified as a Grade 3A operator, certificate number 6397, which expires on January 1, 2000.
  2. Mr. Betke has been employed by the Village of Coxsackie for 19 years, and is the operator of its wastewater treatment plant. The plant has a SPDES permit from the Department (No. 0033545) which expires on April 15, 1999. The permit allows the facility to discharge into the Hudson River within certain limits, and requires the submission of monthly discharge monitoring reports (DMR's) to the Department.
  3. DMR's document the permittee's sampling of required effluent parameters. The Department relies on their accuracy to monitor a facility's permit compliance and, more generally, the state's water quality.
  4. On March 29, 1993, Adirondack Environmental Services, Inc., an analytical research laboratory, tested a sample of the plant's effluent for the parameter "Biological Oxygen Demand 5" (BOD5). The result, as recorded on one of the laboratory's reporting forms, was 14 mg/l.
  5. On or about April 20, 1993, Mr. Betke altered the form by removing the number "1" with white-out so that the reading for BOD5 became "4" instead of "14". Mr. Betke knowingly altered the form to make conditions at the wastewater treatment plant seem better than they were, and submitted the altered form to the Department as part of an inaccurate DMR.
  6. After a Department investigation, Mr. Betke was charged criminally with the form's alteration as part of an indictment dated August 9, 1995. The first count of the indictment, which addressed the alteration, accused Mr. Betke of second-degree forgery in violation of Section 170.10(2) of the state's Penal Law, a Class "D" felony. The count read that "on or about April 20, 1993, at the Village of Coxsackie Sewage Treatment Plant, the defendant did, with intent to defraud, deceive or injure another, falsely make, complete or alter a written instrument which is or purported to be or calculated to become or represent, if completed, a public record or an instrument filed or required or authorized by law to be filed in or with a public office or public servant, to wit: at the aforesaid date, time and place the defendant did, with intent to deceive, defraud or injure another, falsely complete, make or alter a laboratory report from Adirondack Environmental Services, Inc. on a sample taken on March 29, 1993."
  7. On June 4, 1996, Mr. Betke pled guilty to this count in full satisfaction of the indictment, admitting he had done what was charged. The plea was accepted by Greene County Court Judge George Pulver with the understanding that Mr. Betke waived all rights to appeal his conviction. Mr. Betke was subsequently sentenced to five years of probation.
  8. The state Attorney General's office, which prosecuted the matter, requested that as part of the probationary sentence, Mr. Betke be required to surrender his certificate to operate a wastewater treatment plant. However, Judge Pulver declined to do so, noting the following reasons:
    1. Mr. Betke expressed remorse for his actions;
    2. He was 39 years old, remained with the village throughout the court proceedings, and supported himself and his family by means of his licensed employment;
    3. This was Mr. Betke's first involvement with the criminal justice system;
    4. Numerous letters were submitted to the court, attesting to Mr. Betke's character;
    5. Mr. Betke's continuing operation of the sewage treatment plant was and would remain under the Department's scrutiny;
    6. The county probation department's pre-sentencing report did not recommend that Mr. Betke's certificate be revoked; and
    7. Revocation of Mr. Betke's certificate would serve no rehabilitative purpose and accordingly would not be an appropriate condition of probation.
  9. Also, Judge Pulver noted, "There are available to the State administrative forums better equipped than is this Court to determine whether defendant's conduct in operation of the sewage treatment plant warrants license revocation." For that reason, his decision not to revoke Mr. Betke's certificate was made "without prejudice to any administrative proceeding or determination brought in or by any agency of competent jurisdiction affecting defendant's license."
  10. On April 3, 1997, after the Department commenced this action, Judge Pulver issued Mr. Betke a Certificate of Relief from Disabilities, which purported to relieve Mr. Betke of any bars to the right to maintain his certificate as a wastewater treatment plant operator.

DISCUSSION

- - No Need for Hearing

As noted above, the Department's motion for order without hearing should be granted because there is no factual issue whether Mr. Betke practiced fraud and deceit in the performance of his duties. Mr. Betke basically admitted the allegation in the criminal proceeding. He pled guilty to a charge of forgery in which he acknowledged altering a laboratory analysis of his treatment plant's effluent. The charge was that he did this with intent to defraud, deceive or injure.

My findings are supported by the various documents offered by the Department Staff, including copies of the indictment, the plea minutes, the certificate of disposition, and Judge Pulver's written decision of June 25, 1996, addressing certificate revocation. The particular circumstances of the forgery are outlined in the affidavits of Department Staffers Stephen Canfield and Frederick Sievers, as is the connection of the forgery to the Department's mechanisms for water quality monitoring.

The Respondent's papers raise various arguments why the Department Staff's motion should be denied and why its action is "unfair and improper under the circumstances." However, they do not deny the forgery or explain why it happened. Therefore, about the forgery itself, no issue exists to litigate.

- - Departmental Notice of Permit Non-Compliance

The Respondent claims the Department knew for more than a year prior to the forgery that the Coxsackie treatment plant did not and could not operate within permit limits, but now wants to pretend otherwise, scapegoating Mr. Betke for its own delay in addressing the problem. Mr. Betke says that he himself advised both the Department and the Coxsackie village board that the plant needed expansion to comply with its SPDES permit, but that more than one year went by without approval to expand the plant.

Whether or to what extent the Department otherwise knew that the plant could not comply with its SPDES permit - - which is not addressed directly in the Department's own affidavits - - would not excuse the forgery and therefore does not require a hearing. If anything, the plant's chronic non-compliance would seem to make the submittal of accurate DMR's even more important, to reflect the size of the problem and its possible impacts to the river. Regardless of what Mr. Betke had told the Department about the general problem, it would not justify his falsifying supporting data. Also, compliance with permit terms is, in the first instance, a permittee's responsibility, not the Department's. Therefore, blame for non-compliance cannot be shifted entirely to the Department.

- - Departmental Delay of Disciplinary Action

The Respondent also claims that the Department "sat back" for nine full months after his sentencing before initiating this proceeding, and in the meantime acquiesced in his oversight of the $2.3-million treatment plant expansion. Whatever the reason for this delay, it need not be litigated since Mr. Betke does not allege that the delay "substantially prejudiced" his ability to defend in this matter. [See, Cortlandt Nursing Home v. Axelrod, 66 NY2d 169 (1985), addressing the requirement in State Administrative Procedure Act Section 301(1) that an opportunity for hearing be afforded within reasonable time.]

The Respondent suggests that by virtue of its own delay in launching this action, the Department cannot now claim it is urgent to revoke his certificate. However, the appropriate penalty should be determined according to the circumstances of the violation, not by the length of time between the violation and the initiation of disciplinary action.

- - Appropriate Penalty

The Department's regulations provide that in cases of fraud or deceit in the performance of his or her duties, a wastewater treatment plant operator's certificate can be either revoked or suspended. Pursuant to a suspension, the certificate would be invalidated for a period of time fixed by the Department, and then reinstated automatically. Pursuant to a revocation, the certificate would be permanently invalidated unless, upon some subsequent re-application, the Department used its discretion to issue a new one.

Given these options, I recommend a one-year suspension of the Respondent's certificate. This provides adequate punishment for Mr. Betke and sufficient deterrence for him and other wastewater treatment plant operators. A one-year suspension also recognizes that of the many counts in the criminal indictment, Mr. Betke admitted only the one act of forgery which is noted in this report's findings. Staff has not tried to prove any of the other acts alleged in the indictment; in the absence of proof, these other acts cannot be factors in the penalty decision.

A one-year suspension also recognizes that the forgery acknowledged by Mr. Betke did not result in any particular documented environmental harm. However, this does not excuse the violation since, as Staff argues, any forgery of sampling data is, by itself, significant. It undermines the integrity of the self-reporting scheme at the heart of the SPDES program. It also bears directly on the Department's oversight responsibilities.

Staff acknowledges this is Mr. Betke's first offense in the almost 20 years he has been certified as a wastewater treatment plant operator. While Staff attributes no actual environmental harm to this one falsification, it also notes that the treatment plant discharged solids to the Hudson River grossly in excess of permit limits, and that the river downstream from Coxsackie is used as a drinking water supply for the Village of Rhinebeck, City of Poughkeepsie, Hyde Park Fire and Water District, Highland Water District, Port Ewen Water District and the City of New York through its Chelsea pump station. The river's use as a water supply, even though some distance downstream, underlines the importance of this treatment plant's effluent being accurately characterized.

Staff has recommended that Mr. Betke's certificate be revoked and that he not be allowed to re-apply for a period of five years. If that is deemed inappropriate, Staff has proposed a five-year suspension with a requirement that Mr. Betke satisfactorily complete the Grade 3A operator examination to prove his competency.

Staff's brief states that in the course of investigating this matter, Staff felt that Mr. Betke did not have a thorough understanding of plant operation and did not appreciate the serious consequences of his behavior, which indicated the need for further training. However, these points are not addressed in Staff's supporting affidavits, so I do not credit them in making my recommendation. I see no purpose in having Mr. Betke complete an examination or otherwise re-establish his competency at the end of any suspension period.

- - Effect of Certificate of Relief from Disabilities

In his initial papers, the Respondent claimed that the sentencing judge, George Pulver, had relieved him of any bar to his right to maintain his certificate as a wastewater treatment plant operator. I questioned this during my initial conference call with the parties' counsel and asked that they brief the issue of what legal effect should be given to the Respondent's certificate of relief from disabilities.

The briefing confirms my initial conclusion about the certificate's effect. Issued pursuant to Correction Law Section 701, such a certificate relieves Mr. Betke of disabilities "automatically" imposed by reason of his criminal conviction, and prohibits the "automatic" forfeiture of any license held by the eligible offender and covered by its terms. [Correction Law Section 701(1), (2).] However, it does not in any way prevent an administrative, licensing or other body, board or authority from relying upon the conviction as a basis for the exercise of its "discretionary" power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege. [Correction Law Section 701(3).]

The Department's power here is discretionary since Mr. Betke's conviction did not result in an automatic forfeiture of his certificate. The regulations state that the Department "may" suspend or revoke the certificate for fraud or deceit in the performance of the operator's duties [6 NYCRR 650.10(c)], leaving it to the agency whether to act or not. As noted by the Department Staff, Correction Law Section 701 was enacted to encourage the rehabilitation of first offenders by improving employment opportunities, the thrust being to eliminate automatic employment bans which are imposed solely as the result of convictions without regard to whether an offense is related to the character and fitness of the individual involved. [People v. Honeckman, 480 N.Y.S.2d 829, 833 (Sup. Ct. N.Y. Co. 1984)].

In sentencing Mr. Betke, Judge Pulver acknowledged that the Department, as licensing agency, was better equipped than he was to determine whether the Respondent deserved to have his certificate revoked. The Department's power to act in this matter is not affected by the certificate of relief from disabilities, since the certificate carries no greater authority than that accorded by the state's correction law. And that law is very clear in reserving to the Department, as the licensing body, its discretionary power to suspend or revoke Mr. Betke's certificate.

- - Other Considerations

Finally, as Judge Pulver noted, the county probation department did not recommend that Mr. Betke's certificate be revoked, and the court received numerous letters attesting to Mr. Betke's good character, including one from village mayor Henry Rausch. Mr. Betke's probation officer has submitted a letter dated May 7, 1997, saying the Respondent has had no further trouble with the law, acknowledges what he did was wrong, and is paying his debt to society. The probation officer, Wayne Sutherland, argues that to strip him of his license would serve no purpose other than to show Mr. Betke that his good behavior since the forgery incident has been for nothing.

The recommendations of Judge Pulver, Mayor Rausch and Mr. Sutherland are part of the record in this matter and therefore appropriate for the Commissioner's consideration. However, the Commissioner should also consider that regardless of his subsequent good conduct and otherwise good character, Mr. Betke's forgery violated a duty of honest self-reporting that is central to the SPDES program's effectiveness. Also, while the Respondent may now feel remorse, his own affidavit does not show it; it does not accept responsibility for his conduct, or even attempt to explain it. Instead, it tries to shift blame back to the Department, apparently for not acting sooner to approve the treatment plant's expansion.

CONCLUSION OF LAW

The Respondent, Louis Betke, practiced fraud and deceit in the performance of his duties as a wastewater treatment plant operator.

RECOMMENDATION

Mr. Betke's certificate as a wastewater treatment plant operator should be suspended for a one-year period.

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