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Greenman, A. Beecher - Ruling 2, October 22, 1997

Ruling 2, October 22, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Alleged Violations of Environmental Conservation Law Articles 25 and 71 and Part 661 of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

A. BEECHER GREENMAN,

Respondent

October 22, 1997

RULING File No. R1-5787-95-12

Summary

On September 3, 1997, the Department Staff moved to amend the complaint and to dismiss certain affirmative defenses in the above matter. On September 26, 1997, the Respondent submitted an amended answer and a reply in opposition to the motion to dismiss the affirmative defenses. The present ruling denies the motion to dismiss with respect to most of the affirmative defenses, but does dismiss the defense regarding the constitutionality of the Department's prosecution of this matter since this is a matter for review by the courts, rather than in an administrative hearing. The Department Staff's request to reply to the Respondent's reply is denied.

Amendment of the Complaint

The proposed amendment of the complaint would withdraw the second cause of action, pertaining to alleged violation of Environmental Conservation Law (ECL) Article 15 and Part 608 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 608). The proposed amendment would also decrease the requested civil penalty, to reflect deletion of the second cause of action and to reflect lower penalty amounts.

The Respondent did not oppose the amendment of the complaint and submitted an amended answer.

The motion for leave to amend the complaint is granted.

Motion to dismiss affirmative defenses

The Department Staff moved to dismiss affirmative defenses numbers 1 through 9, 11, 12 and 14. This numbering follows the numbering in the original answer. The last three of these now have different numbers in the amended answer: affirmative defense 11 of the original answer is now 10; number 12 is now 11 and number 14 is now 13. The change is due to the omission of affirmative defense 10 of the original answer, which had to do with the cause of action which was withdrawn by the Department Staff. The numbering in the present rulings follows that of the original answer since this was what was used in the motion to dismiss and in the reply to the motion.

Affirmative defenses 1 through 9 allege that the Department Staff does not have jurisdiction over the location at which the alleged violation occurred and/or contest the applicability of the permit requirements or the setback requirements of 6 NYCRR Part 661.

Affirmative defense 11 alleges that the complaint fails to state a cause of action since it fails to allege environmental harm.

Affirmative defense 12 states that, "The Department's prosecution of this matter constitutes a violation of Respondent's Constitutional Equal Protection Rights under the Constitutions of the United States and the State of New York."

Affirmative defense 14 alleges that the actions in certain paragraphs of the complaint would, if true, constitute a single violation, and that the penalty calculation is inflated.

Affirmative Defenses 1 through 9: These affirmative defenses dispute the Department's allegations that the locations where certain activities took place are in the adjacent area of a tidal wetland and/or that the activities are ones which require a permit.

The parties' arguments about the motion to dismiss are based on facts which have not yet been proved by either party. The Department Staff has the burden of proving that it has jurisdiction over the activities in question.

The Department Staff and the Respondent have made assertions, in their pleadings and in the documents concerning the motion to dismiss, about facts which they argue are relevant to whether or not violations occurred. There are disputed questions of fact about the alleged violations. These will need to be resolved through evaluation of evidence presented in a hearing, not through a ruling on a motion to dismiss. The fact that the Department Staff disagrees with the Respondent's assertions or interpretations does not support dismissing the first nine affirmative defenses.

Affirmative defenses 1 through 9 may, in part, be denials rather than affirmative defenses. An affirmative defense is defined as "new matter which, assuming the complaint to be true, constitutes a defense to it." (Black's Law Dictionary, 5th Edition, 1979; see also Civil Practice Law and Rules Section 3018(b)).

Even if certain assertions (particularly the ninth affirmative defense) are more properly denials of allegations in the complaint rather than affirmative defenses, that would not be a reason to dismiss them. In addition, characterizing something as an affirmative defense does not shift the burden of proof (Beece v. Guardian Life Insurance Company of America, 110 A.D. 865, 488 N.Y.S. 2d 422 (2d Dept., 1985)).

In the present case, affirmative defenses 1 through 9 could be seen as denials, in the broader sense of the Department asserting jurisdiction to regulate certain activities and the Respondent denying this and stating reasons for the denial, but could be seen as affirmative defenses in the more narrow sense of asserting specific facts which would put the activities outside of the adjacent area of the wetland even assuming that there are regulated wetlands on the site. Under 6 NYCRR 622.4(c) and (d), affirmative defenses 1 through 9 were properly raised in the answer. Whether or not they have merit will be determined based on the evidence which the parties will present on the various elements relevant to determining jurisdiction (for example, an activity's distance from a tidal wetland, the nature and location of structures which would affect the boundary of the adjacent area, whether an activity was "ordinary maintenance and repair" or "substantial reconstruction," etc.)

Ruling: The motions to dismiss affirmative defenses 1 through 9 are denied.

Affirmative Defense 11: This affirmative defense alleges that the Department Staff's allegations fail to state a claim upon which relief can be granted since they do not allege environmental harm. The Department Staff argues that environmental harm is not one of the elements of a violation of the tidal wetlands act, and that the affirmative defense is not supported by factual material.

This affirmative defense would be relevant not as much to the question of whether violations occurred as to the question of what penalty should be imposed if violations are found. Under the Department's Civil Penalty Policy, issued on June 20, 1990, environmental harm is one of the factors relevant to the calculation of penalties. Environmental effects may also be relevant to paragraphs 34 through 36 of the complaint (the discharge pipes) in terms of the definition of "regulated activity."

Ruling: The motion to dismiss affirmative defense 11 is denied.

Affirmative Defense 12: This affirmative defense asserts that the prosecution of this matter violates the Constitutions of the United States and the State of New York. Unlike most of the affirmative defenses, this one is not accompanied by a statement of facts regarding the affirmative defense, so the nature of the alleged constitutional violation is not clear and can only be inferred from statements in other documents submitted by the Respondent, particularly his reply to the motion to dismiss and the documents about the discovery request from earlier this year. These other documents suggest that the Respondent may be arguing that the Department is engaging in selective prosecution or has not granted a hearing within a reasonable time. Selective prosecution would not be a subject for adjudication in the hearing (In the Matter of the Town of Norfolk, Order dated October 31, 1985).

An argument similar to the latter one (timeliness) is now a new affirmative defense (number 14) in the amended answer, but is stated in terms of a violation of Section 301(1) of the State Administrative Procedure Act rather than a violation of a Constitution. This new affirmative defense number 14 may be adjudicated in the hearing (Cortlandt Nursing Home v. Axelrod, 66 N.Y. 2d 169, 495 N.Y.S.2d 927 (1985); see also In the Matter of Manor Maintenance, Order dated February 12, 1996).

Affirmative defense 12 of the original answer (Constitutional issues) is not a matter for consideration in an adjudicatory hearing and would need to be submitted to a court (DiMaggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161 (1967); 303 West 42nd Street v. Klein, 46 N.Y.2d 686, 416 N.Y.S.2d 219, 389 N.E.2d 815 (1979)).

Ruling: Affirmative defense 12 is dismissed.

Affirmative Defense 14: This affirmative defense disputes the Department Staff's penalty calculation, on the basis that the actions alleged in numerous paragraphs of the complaint would constitute a single violation. The Department Staff contests this based on a court decision regarding another case. The Respondent's reply discusses how prior decisions have dealt with multiple structures and with multiple days on which violations occurred.

It is premature to make a determination on how any penalty might be imposed since there is at present no evidence in the record which would show what activities actually occurred, nor what the relationships were among these activities, nor which of them were in violation of the tidal wetlands regulations. Accordingly, this matter should be addressed after the factual record is compiled.

Ruling: The motion to dismiss affirmative defense 14 is denied.

Request for further reply: On October 5, 1997, the Department Staff requested permission to respond to the Respondent's reply, on the basis that the decision in a case cited by the Respondent was misleading and should be read in conjunction with the plot plans for that project, and that the Respondent had misquoted the relevant regulations.

The regulations speak for themselves. To the extent that the Robinson decision and the plans submitted for that project are relevant to the present case, they would need to be considered in the context of testimony in the hearing.

Ruling: The request for this further response is denied.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge
Albany, New York

Dated: October 22, 1997

TO: Lori J. Riley, Esq.
Robert Gulizia, Esq.
Stephen B. Latham, Esq.
J. Lee Snead, Esq.

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