Kalikow Development Associates, Ltd - Ruling , June 5, 2000
Ruling , June 5, 2000
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Alleged Violation of Articles 19 and 71 of the New York State Environmental Conservation Law
and Part 201 of the Official Compilation of Codes, Rules and Regulations of the State of New York
- by -
KALIKOW DEVELOPMENT ASSOCIATES, LTD.,
RULING ON MOTION
DEC File No.
June 5, 2000
The present ruling concerns a motion for a protective order which was made by the Department Staff in response to paragraphs 5 through 8 of the Respondent's request for production of documents in this matter. As discussed further below, the motion is granted except for a portion of the documents requested in paragraph 5 of the Respondent's request. The Respondent is identified in the Department Staff's papers as "Kalikow Development Associates, Ltd." and in the Respondent's papers as "Kaled Management Corp." This disparity will need to be clarified for the record of this proceeding.
The Department Staff alleges that the Respondent operates a facility which has two boilers and is subject to Title V of the Federal Clean Air Act. The Department Staff alleges that the Respondent did not submit a completed Title V permit application to the Department as required.
The Respondent, in its Answer, states that it was entitled to satisfy the Title V permitting requirements by registering with the Department pursuant to the "cap by rule" program and that it did register on or about September 14, 1999. The Respondent also stated that it had not received the notices and proposed orders on consent which the Department Staff mailed or attempted to mail to it, and that had it been aware of these notices it would have registered the building promptly.
The Respondent made a request for production of documents. The Department Staff moved for a protective order with regard to the documents sought by the Respondent in paragraphs 5 through 8 of the request.
Paragraph 5 requests documents which contain or refer to statistics regarding the number of persons or entities who, since June 9, 1997, have been determined by the DEC to be in violation of the Title V permit application requirements, and the dollar amounts of any penalties for such violations, whether these were imposed before or after service of a formal complaint.
Paragraph 6 requests documents regarding how the DEC calculated the proposed civil penalty for the Respondent's alleged violations which was set forth in the proposed order on consent which accompanied an October 20, 1998 Notice of Violation addressed to the Respondent. Paragraph 7 is a similar request, regarding the proposed civil penalty in a subsequent proposed order on consent which was enclosed with an August 24, 1999 letter from the Department.
Paragraph 8 requests documents relating to statistics on the number of persons who, in or about October 1998, were sent notices of violation of the Title V permit application requirements with proposed orders on consent which would have required the same penalty as proposed in the first proposed order on consent that was sent to the Respondent.
The Department Staff submitted correspondence in support of the motion for a protective order on December 8, 1999. The Respondent submitted an affidavit in opposition to the motion on December 16, 1999. The Department Staff submitted an affirmation in reply on February 2, 2000. Among other things, the February 2, 2000 affirmation stated that the first proposed order on consent (from October, 1998) has been withdrawn by the Department and is no longer being offered to any respondents. The affirmation also stated that there are no responsive documents to paragraph 7 of the request.
The information requested in Paragraphs 6 and 8 is not relevant to the present hearing, for several reasons. It has to do with a penalty in a proposed order on consent that was rejected by the Respondent and withdrawn by the Department Staff, and that was superceded by a later proposed order on consent and then by the Complaint in this matter. Further, the Respondent argued that communications which take place before a "dispute" has arisen between two parties are not excluded from evidence, and that there was not "dispute" at the time of the October 1998 proposed order on consent since the proposed penalty amounts were set forth in a unilateral communication issued by DEC before the Respondent was aware that it had been accused of a violation. If this is so, it actually underlines how different the circumstances were between October, 1998 and August, 1999 when the Complaint was issued.
In addition, the Complaint in this matter does not allege that the Respondent was late in registering its facility, but instead alleges that the Respondent needs to apply for a Title V permit and failed to do so. Whether or not the Respondent would have registered its facility if it had been aware of the October, 1998 correspondence does not appear to be the question.
Of the documents requested in paragraph 5, the only ones which would be relevant would be those relating to the dollar amount of any penalties imposed by the Department since June 9, 1997 for violations of Title V permit application requirements which were found after a hearing and were imposed by an Order of the Commissioner. Such cases might be relevant in comparison to the present case, and the Orders might contain relevant information about why a certain penalty amount was imposed. The varying circumstances in cases which settled, however, would preclude meaningful comparison between them and the present case.
The index of Decisions and Orders in the DEC Office of Hearings and Mediation Services does not include any Orders issued after hearings regarding violations of Title V permit application requirements.
The documents requested in the first part of paragraph 5 (regarding the number of persons or entities who, since June 9, 1997, have been determined by the DEC to be in violation of the Title V permit application requirements) would not be relevant to the issues in this hearing. The existence of a large or small number of violations by others would not affect the issue of whether the Title V permit application requirements are applicable to the Respondent, nor the issue of any penalty amount which may be imposed if a violation is found.
Ruling: The motion for a protective order is granted, except that if the Department Staff is aware of any Orders of the Commissioner regarding violations of Title V permit application requirements, which orders were issued following a hearing, copies of these Orders are to be provided to the Respondent.
The Notice of Hearing makes reference to DEC guidance memoranda related to penalties, although it does not cite any of the program-specific memoranda, and Mr. Byrne's June 2, 2000 affirmation cites the Department's June 20, 1990 Civil Penalty Policy. I am requesting that the Department Staff notify the Respondent and me regarding whether there are any other state or federal enforcement guidance documents, in addition to the Civil Penalty Policy, that relate to penalty amounts in cases involving violations of the requirements which were allegedly violated by the Respondent.
I am also requesting that the parties clarify the name and address of the Respondent. Mr. Mulqueen's affidavit stated that the Respondent was mistakenly named in the caption as "Kalikow Development Associates, Ltd." but is actually Kaled Management Corp. The Department Staff did not contest this assertion, but still identified the Respondent as "Kalikow Development Associates, Ltd." in the caption of Mr. Byrne's February 2, 2000 affidavit.
Susan J. DuBois
Administrative Law Judge
Dated: Albany, New York
June 5, 2000
TO: John F. Byrne, Esq.
Michael A. Mulqueen, Esq.