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Environmental Waste Incineration (Long Beach) - ALJ Ruling, September 27, 1996

ALJ Ruling, September 27, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Articles 17, 19, 27, and 71 of the Environmental Conservation Law of the State of New York, Sections 173, 175 & 176 of the Navigation Law of the State of New York and Title 6, Parts 200, 201, 219 & 360, of the Official Compilation of Codes, Rules and Regulations of the State of New York,

- By-

Environmental Waste Incineration Inc.,
ERD Waste Corp., and
ERD Management Corp.,

Respondents.

RULING OF THE ADMINISTRATIVE LAW JUDGE

Background

By a Notice of Hearing and Complaint dated September 4, 1996, the Department Staff charged the above-named Respondents with various violations stemming from operation of the Long Beach Resource Recovery Facility, an incinerator at 70 Water Street, Long Beach. By papers dated September 18, 1996, Dan Elias, the Respondents' attorney, moved for an order directing the Department Staff to file an amended complaint or provide a more definite statement of the complaint.

The Department's regulations provide that a respondent may move for a more definite statement of a complaint within 10 days of completion of its service [6 NYCRR 622.4(e)]. Because the parties intended to meet to discuss the matter on September 16, the Department Staff agreed to extend the time for the Respondents to make their application until September 18, the day the Respondents' papers were actually received at the Office of Hearings and Mediation Services.

Benjamin Conlon, the Department Staff's attorney, filed a response to the motion on September 19, 1996.

Positions of the Parties

The Respondents contend that the complaint as served is "so vague and ambiguous and/or lacking in details" that the Respondents cannot reasonably be expected to interpose an answer to it. Department Staff responds that the complaint provides ample information concerning the alleged violations to enable the Respondents to formulate a reasonable response.

Discussion

The Department's regulations require that a complaint include "a concise statement of the matters asserted" [6 NYCRR 622.3(a)(1)(iii)]. Furthermore, they allow a respondent to move for a more definite statement on the grounds that the complaint is "so vague or ambiguous that respondent cannot reasonably be required to frame an answer." [6 NYCRR 622.4(e)]

I agree with the Respondents that the violations are alleged in a manner too vague and ambiguous to provide adequate notice. In some instances, the factual bases for assertions are not stated; in other words, it is not alleged how the violations were committed. More important, violations are not specified by date and, where known, time, but merely as having been noted on a number of occasions or in a number of instances over periods of one or two years. For most of the charges it is even unclear how many violations are alleged, since certain events are alleged to have occurred, for example, in at least a certain number of instances, on at least a certain number of occasions, or in excess of a certain number of times. Framing charges in this manner raises doubts about how many violations the Department actually intends to prove, and undermines one of the purposes of a complaint, which is to limit the scope of proceedings.

The failure to explain and specify the dates of violations, and in most cases even to put a ceiling on the number of times certain violations or events are alleged to have occurred, unfairly prejudices the Respondents in their efforts to file an answer and mount a defense. Ensuring an adequate opportunity to defend is especially important here given the relief the Department Staff is seeking: closure of the facility, revocation of the Respondents' permits, and a $500,000 civil penalty.

In a civil court proceeding, the Respondents could request a bill of particulars to amplify the complaint and provide more detail. However, as the Respondents point out, bills of particulars are not permitted in DEC enforcement proceedings, according to 6 NYCRR 622.7(b)(3). Therefore, a motion for a more definite statement is the Respondents' only available remedy.

Having received the Department's complaint, the Respondents are obliged to serve an answer specifying which allegations they admit and deny, and asserting affirmative defenses together with a statement of facts which constitute the grounds of each affirmative defense asserted. To the extent an allegation is vague and ambiguous, an admission or denial of the allegation would likewise be vague and ambiguous. Also, to the extent the allegations lack factual detail, it would be difficult if not impossible for the Respondents to assert facts that might form a defense.

Responding to the motion, Department Staff asserts that the Respondents were consistently provided with copies of inspection reports at or near the time of inspections and are therefore fully capable of discerning for themselves when the alleged violations took place. However, it is Staff's duty in the first instance to explain when (and how) the alleged violations occurred; it is not up to the Respondents to figure this out. Beyond that, inspection reports are not referenced or cited in the Department Staff's complaint, and because most violations are not even referenced to specific dates, the Respondents could only guess which elements of a report are meant to be encompassed by the charges. Finally, a notice may be made sufficient if other documents, read together with the notice, provide enough information. [See, e.g., Ritzel v. Blum, 81 A.D. 2d 1029, 1030, 440 N.Y.S.2d 428, 430 (4th Dep't 1981); Eden Park Health Services, Inc. v. Whalen, 73 A.D.2d 993, 424 N.Y.S.2d 33 (3d Dep't 1980).] But since the inspection reports are not appended either to the complaint or to Staff's response to this motion, I cannot determine that enough information has been provided in this instance.

Department Staff also argues that the Respondents are entitled to a hearing where they can confront the Department and challenge its allegations, and that Staff is not required to try its case in its complaint. All this is true, but before the Respondents get to the hearing, they must first file an answer. Also, while the complaint need not contain the Department's proof, it must provide enough factual detail about the alleged violations to give the Respondents notice that is adequate for them to investigate the circumstances themselves and prepare their defense. That detail is lacking in this instance.

Finally, the Department counsel argues that he did not conduct any of the inspections himself and therefore must assert the allegations based on information and belief. I have no reason to doubt this, but the Department attorney presumably has access to the inspectors and their reports, so that a proper complaint can be developed. At any rate, I do not read the motion as the Respondents objecting to alleged violations being plead upon information and belief. The Respondents object to the complaint's failure to provide relevant facts or circumstances supporting its assertions.

Overall, the Respondents' objections to the complaint, as stated in their motion, are valid, and the complaint must be amended for the hearing to proceed in a fair and orderly manner.

Conclusion

The complaint is so vague and ambiguous that the Respondents cannot reasonably be required to frame an answer.

Ruling

The motion for a more definite statement of the complaint is granted.

The Department Staff shall serve an amended complaint within 15 days of receipt of this ruling, pursuant to 6 NYCRR 622.4(e)(2). A copy of the complaint shall be sent to me when served.

If any party wants to contact me about compliance with this ruling or any other issue about this case, including scheduling and settlement, it may do so by setting up a conference call with my office.

Edward Buhrmaster
Administrative Law Judge
Albany, New York
September 27, 1996

TO: Dan Elias
Elias Goodman Shanks & Zizmor, L.L.P.
444 Madison Avenue (41st Floor)
New York, New York 10022
FAX: 212-421-6027

Benjamin Conlon
New York State Department of Environmental Conservation
Division of Environmental Enforcement
Compliance Assurance Practice Group
50 Wolf Road, Room 627
Albany, New York 12233-5500
FAX: 518-485-8478

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