D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Manor Maintenance - Order, February 12, 1996

Order, February 12, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 33 of the New York State
Environmental Conservation Law (ECL) and
Parts 320-329 of Title 6 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York by

MANOR MAINTENANCE CORPORATION AND RICHARD SCHULTHEIS,
Individually, and in his
capacity as President of Manor Maintenance Corporation

Respondents

ORDER

DEC Nos. 1-2671, 1-2672, 1-2673, 1-2429

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint, dated May 13, 1991, and amended on June 15, 1992, an administrative enforcement hearing was held before Administrative Law Judge ("ALJ") Edward Buhrmaster on June 17, 1992, at the Region 1 office of the New York State Department of Environmental Conservation (the "Department" or "DEC"), SUNY Campus, Building 40, Stony Brook, New York. The Department appeared by Kevin J. Casutto, DEC compliance counsel, 50 Wolf Road, Room 609, Albany, New York. The Respondents appeared by Mark T. Walsh, Esq., of the law firm Gleason, Dunn, Walsh and O'Shea, 11 North Pearl Street, Albany, New York.
  2. The hearing was held under court direction to determine what, if any, prejudice had been caused by the delay in bringing this action. It was necessary to decide this question in the context of the Respondents' motion to dismiss all charges on the ground they were not brought in a timely manner.
  3. The ALJ submitted his Hearing Report for decision in August, 1992. While no decision was issued by my predecessors, I believe the report raises important issues affecting DEC's enforcement process which deserve to be addressed. For the Respondents here, it is also important to resolve this matter with finality.
  4. Upon review of the record of this hearing and the attached Hearing Report prepared by ALJ Buhrmaster, I concur with its Findings of Fact and conclusion that the Respondents have not been afforded a hearing within reasonable time, as is required under State Administrative Procedure Act ("SAPA") Section 301(1).

The delay in this matter cannot to any extent be attributed to the Respondents. Furthermore, the delay has caused them substantial prejudice.

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

  1. All charges in the aforementioned complaint are dismissed, with prejudice.

For the New York State Department
of Environmental Conservation
/s/
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
February 12, 1996

To: Manor Maintenance Corporation
88 Sunnyside Boulevard
Plainview, New York 11803
ATTN: Richard Schultheis, President

Mark Walsh, Esq.
Gleason, Dunn, Walsh and O'Shea
11 North Pearl Street
Albany, New York 12207

NYSDEC Division of Environmental Enforcement
50 Wolf Road
Albany, New York 12233

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter of Alleged Violations of
Article 33 of the New York State
Environmental Conservation Law (ECL) and
Parts 320-329 of Title 6 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York by

MANOR MAINTENANCE CORPORATION AND RICHARD SCHULTHEIS, Individually,
and in his capacity as President of Manor Maintenance Corporation,

Respondents

DEC Nos. 1-2671, 1-2672, 1-2673, 1-2429

HEARING REPORT

(As Originally Submitted in August 1992)

- by -

/s/
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

Pursuant to a Notice of Hearing and Complaint, dated May 13, 1991, and amended on June 15, 1992, an enforcement hearing was held on June 17, 1992, at the Region 1 office of the New York State Department of Environmental Conservation (the "Department", or "DEC"), SUNY Campus, Building 40, Stony Brook, New York. The hearing was held with regard to charges against Manor Maintenance Corporation and Richard Schultheis, individually and as president of Manor Maintenance Corporation, Respondents.

The Department was represented by Kevin J. Casutto, DEC compliance counsel, 50 Wolf Road, Room 609, Albany, New York. The Respondents were represented by Mark T. Walsh, Esq., of the law firm Gleason, Dunn, Walsh and O'Shea, 11 North Pearl Street, Albany, New York.

The Department's complaint stated nine causes of action, all related to pesticide applications which were alleged to have occurred in 1981, 1982, 1984 and 1986. An answer, dated July 26, 1991, was filed by the Respondents, followed by a motion to dismiss the complaint, dated August 19, 1991. The motion to dismiss was predicated upon four grounds: (1) that the complaint was not served within a reasonable time, as required by Section 301 of the State Administrative Procedure Act (SAPA); (2) that the prosecution was in violation of Respondents' constitutional due process rights; (3) that the prosecution violated the common law doctrine of laches; and (4) that the Department was estopped from proceeding, based on a position it had taken in prior litigation.

In a ruling dated March 25, 1992 (a copy of which is attached as Exhibit "A"), I denied the Respondents' motion, but said I would hear, as an affirmative defense, all claims of unreasonable delay in the commencement of this action. These claims, I ruled, would be heard after the Department completed its case, and would be considered both in terms of SAPA 301(1) and general considerations of fairness and due process.

In their motion papers, the Respondents had argued that the delay in commencing this action had prejudiced their ability to defend against the charges. I said I would take evidence and hear argument on this point since it was not clear, from the papers themselves, that any claimed prejudice was so substantial as to warrant the charges' dismissal. I said the degree of any prejudice would have to be established at hearing, with proof in the record, and with an allowance for the Department to contest the Respondents' assertions.

Upon the issuance of my ruling, the Respondents challenged it in court, resulting in a decision, dated June 12, 1992, by Justice John G. Connor of the State Supreme Court, Albany County. Justice Connor declined to enjoin the hearing, as the Respondents had requested, but directed that it address, in the first instance, proof and a final determination of the Respondents' motion to dismiss on grounds of delay. This he ordered be done "in the interest of justice" prior to taking evidence on the charges themselves.

In his decision, Judge Connor wrote that in the administrative context, procedural and substantive motions are generally ruled on prior to the hearing being conducted, citing 6 NYCRR 622.9(a) and (b). Therefore, he said, "it appears prudent that the final disposition of petitioner's motion to dismiss be made after all further evidence as to prejudice, as contemplated by the ALJ's March 25, 1992 decision, is submitted and that this be accomplished at the outset in the hearing process commencing June 17, 1992. This threshold issue should be fully determined before all parties are subject to a full hearing on all other issues - - perhaps needlessly. Such procedure will protect the petitioners from any claimed harm for further delay in the hearing process itself as it is the petitioner Manor Maintenance Corporation itself which has the burden to bring forth the further evidence at the administrative hearing with respect to the prejudice claimed to have resulted from delay and the sooner it acts in doing so, the sooner the ALJ can properly determine the issue of dismissal."

As directed, the hearing went forward on the limited question of what, if any, prejudice had been caused by the delay in bringing this action. The Respondents and the Department both presented witnesses, offered documents to the record, and made oral closings addressing both the factual issue of prejudice, and the larger, related issue of whether the hearing was commenced within a reasonable time, as is required under SAPA 301(1).

Respondent Schultheis testified on his own behalf and on behalf of Respondent Manor Maintenance Corporation, which he operates and for which he serves as corporate president. The Respondents also called as witnesses two of their former pesticide applicators, Frank Schultheis (brother of Richard Schultheis) and Bruce Dumonceau. The Department called one witness, John Meister, its supervising Region 1 pesticide control inspector.

After testimony concluded, the record was held open for receipt of an affidavit related to lab reports that were subpoenaed by the Respondents and furnished at the hearing date. That affidavit, dated June 22, 1992, from Charles Weiss, acting section chief of DEC's pesticide enforcement laboratory, is hereby received as hearing exhibit No. 19. It is received because it adequately identifies the subpoenaed documents, and clarifies that there were no other papers, related to the lab testing, that once existed but, with the passage of time, are not now available due to loss or destruction.

On July 17, 1992, the hearing transcript was received, and the record was closed on all issues arising from the motion to dismiss.

This hearing report was submitted for decision in August, 1992, and is reprinted here in its original form.

Department Charges

According to the Department, the Respondents violated Environmental Conservation Law ("ECL") Article 33 and its supporting regulations (6 NYCRR Parts 320-329), which control the application of pesticides.

  • On two occasions, once in the fall of 1981 and again in the summer of 1982, the Respondents are alleged to have applied "chlordane" for the treatment of termites at premises owned and occupied by Providence Aiossa, at 2468 Bellmore Avenue, Bellmore. These applications are alleged to have been done by spraying wooden beams, not in accordance with label directions, which permitted only subsurface treatment (e.g., treatment by drilling into the soil). For the alleged violation of label directions, the Respondents are charged with having violated 6 NYCRR 325.2(b), once on each named occasion. Also, the Respondents are charged with having violated 6 NYCRR 325.2(a) for using "chlordane" in a manner which caused contamination of the Aiossa residence.
  • On April 3, 1984, the Respondents are alleged to have applied "chlordane" for the treatment of termites at premises owned and occupied by Michael Biancardi, at 88 Weeks Road, North Babylon. As in the prior situation, the Respondents are alleged to have treated the surface structure, not in accordance with label directions, which permitted only subsurface treatment. This is addressed as a violation of 6 NYCRR 326.2(d)(1). Other alleged violations are failure to provide a written copy of the "chlordane" label, prior to the application, to Mr. Biancardi [ECL Section 33-0905(5)]; and application of the "chlordane" within 100 feet of a well [6 NYCRR 326.2(d)(6)(i)].
  • On February 4, 1986, the Respondents are alleged to have applied "bendiocarb" for the treatment of termites at premises owned and occupied by Bruce Badger, at 27 Lincoln Place, Glen Cove. The Respondents are alleged to have sprayed the exterior foundation of the premises, contrary to the label directions, which require indoor use only. This is addressed as a violation of 6 NYCRR 325.2(b). Other alleged violations are failure to provide a written copy of the "bendiocarb" label, prior to the application, to Mr. Badger [ECL Section 33-0905(5)]; and contamination of the building structure, related to misuse of the pesticide [6 NYCRR 325.2(a)].

Overall, nine violations are alleged, three each for the three different premises. For the Aiossa violations, a total penalty of $600 is sought ($200 for each violation). A $5,000 penalty is sought for each of the remaining six violations. The total penalty sought is $30,600.

Position of the Respondents

The Respondents filed an answer basically denying the Department's charges and raising various affirmative defenses, including those also raised in their motion to dismiss. All parts of this motion were addressed in my prior ruling (attached to this report) and there is no need to consider them further, except with regard to the issue of delay, on which the hearing was convened. As to this issue, the Respondents contend the delay in bringing the hearing substantially prejudiced their ability to mount a defense. Respondent Schultheis contends that he himself did none of the applications in question and that the only two people who did or could have performed them lack any recollection of the alleged incidents, and do not even recall having been to the premises in question. The Respondents attribute their applicators' lack of recall to the passage of time between the incidents alleged by the Department and the date the hearing was conducted. According to the Respondents, the prejudice to them is significant (because, with the dulling of memories, they cannot secure testimony from those people who, if anyone, would have performed the applications) and irreparable (because these people's recollections cannot be refreshed, despite attempts made before and at the hearing).

The Respondents assert they were not afforded an opportunity for hearing within a reasonable time, in violation of SAPA 301(1), and in violation of their due process rights. (The Respondents' claim of laches, also related to delay, was dismissed in my prior ruling, and is not considered in this report.)

Position of the Department Staff

According to the Department Staff, the Respondents have been afforded a hearing within a reasonable time and have not suffered prejudice such that the charges should be dismissed.

The Department notes that in their initial motion, the Respondents claimed they did not know where to locate the former employees who might have done the applications; whereas, at the hearing, these former employees were produced, if only to say they did not recall the events in question. The Department characterizes the applicators' denials of recollection as "self-serving" for the Respondents, and adds that if there was a loss of memory, the Respondents, with their witnesses, did not try hard enough to revive it.

The Department asserts that it gave the Respondents an extensive discovery packet, including statements from the complainants (in each case, the affected property owner) and, as to two of the four cases, statements of Respondent Schultheis himself. The Department concludes that with this packet, and with lab documents provided at the hearing (and related to on-premise sampling), the Respondents still have sufficient information to mount a defense if in fact they have one.

The Department admits a delay between its receipt of consumer complaints (which occurred, with one exception, well after the alleged incidents) and the issuance of charges. But it argues that, if anything, this delay has served, as opposed to prejudiced, the Respondents. Assuming the violations occurred, as alleged in the complaint, the Department argues that the delay in bringing this action has forestalled the assessment of penalties for which the Respondents may be liable.

While conceding delay, the Department claims the Respondents failed to request a hearing at any time prior to the actual service of charges, even though Respondent Schultheis was spoken to, and made aware of the allegations, during the course of investigations. According to the Department, this failure, in the first instance, to ask for a hearing precludes the Respondents' complaint that a hearing wasn't scheduled within a reasonable time.

FINDINGS OF FACT

  1. Manor Maintenance Corporation ("Manor") is a commercial pesticide applicator, with offices in Plainview, Long Island.
  2. Richard Schultheis is president of Manor and has operated the business since it was incorporated in February, 1979.
  3. Richard Schultheis made none of the applications alleged in the Department's complaint. He was not at the premises named in the complaint on the dates these applications are alleged to have occurred. If the applications were made, as alleged by the Department, they were done by Frank Schultheis or Bruce Dumonceau, both of whom are former Manor employees.
  4. Frank Schultheis worked for Manor between 1979 and 1982. He is the brother of Richard Schultheis. In the fall of 1981 he did a termite job at property owned by Providence Aiossa, 2468 Bellmore Avenue, Plainview.
  5. Bruce Dumonceau worked for Manor between 1982 and 1985, and returned briefly in 1986. In the summer of 1982 he or Frank Schultheis did a termite job at the Aiossa property. On April 4, 1984, Dumonceau did a termite job at the property of Michael Biancardi, 88 Weeks Road, North Babylon. On February 4, 1986, he did work at the property of Bruce Badger, 27 Lincoln Place, Glen Cove.
  6. With the passage of time, Frank Schultheis and Bruce Dumonceau no longer recall having been to the premises named in the prior two paragraphs. They do not recall meeting or speaking with the property owners. Their memories are not refreshed by the parties' questioning before and at the hearing. Their memories are not refreshed by the property owners' complaints or by any of the other documents which are relevant to the charges and still maintained by either party. These documents include no statements which were written by the applicators themselves, either for the Respondents or the Department.
  7. During the periods of their employment, Frank Schultheis and Bruce Dumonceau performed, on the average, at least one and usually two termite jobs per day. This was a regular part of their work routine.
  8. Upon leaving Manor's employment, Frank Schultheis took a job with a machine shop in Manhasset. Bruce Dumonceau became a policeman with the New York City Transit Authority.
  9. The Department was first made aware of the incidents alleged in this action from telephone complaints of the property owners. Providence Aiossa called the Department on April 17, 1983, regarding applications she alleged to have occurred on two unspecified dates, one in the fall of 1981 and the other in the summer of 1982. Michael Biancardi called the Department on April 16, 1985, regarding an application he alleged to have occurred on April 4, 1984. (In the complaint, the date is April 3.) Bruce Badger called the Department on February 4, 1986, regarding an incident alleged to have occurred on the same day as his call.
  10. The Department did on-site sampling at all three premises: at the Aiossa residence on April 26, 1983, and at the Biancardi and Badger residences on February 6, 1986. No split sampling was done, although, where contamination is alleged, the Respondents were given lab results and all supporting documentation.
  11. The Department spoke to Richard Schultheis about two of the incidents: the Biancardi matter (on March 7, 1986), and the Badger matter (on February 12, 1986). As to both of these matters, he gave voluntary statements, and produced whatever records he had at the time of the interviews. These statements and all records he produced were preserved by the Department and returned to the Respondents as part of a discovery packet, furnished at or about the time that charges were served.

DISCUSSION

As a ground for dismissal, the Respondents allege that this action was not brought in a timely manner, and that the delay has substantially prejudiced their ability to defend. The main legal basis for this claim is SAPA 301(1), which states that "[in] an adjudicatory proceeding, all parties shall be afforded an opportunity for hearing within reasonable time."

The statute does not define what time period should be measured and the courts, in applying the statute, have used different gauges, depending on how the hearing right accrues. In this case, the time to be measured is that period between (1) when the Department received each property owner's complaint and (2) when the complaint was served upon the Respondents. [See Liberty Lines Express, Inc. v. New York City Environmental Control Board, 160 AD2d 295 (1st Dept., 1990), discussed in my prior ruling.] The Department's complaint was served in May, 1991, but the property owners' complaints were made as early as April, 1983 (Aiossa), April, 1985 (Biancardi) and April, 1986 (Badger). Of these complaints, only the Badger one was made close in time to the incident alleged by the property owner. Even so, the Department was on notice of the incidents for between five and eight years of its bringing charges.

Whether this was a "reasonable" time must be considered in light of case law, as there is no fixed period after which delay becomes unreasonable as a matter of law. The leading Court of Appeals case, Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, 495 NYS2d 927 (1985), states that "an administrative body in the first instance, and the judiciary in review, must weigh . . . (1) the nature of the private interest allegedly compromised by delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by governmental regulation" [66 NY2d 169, at 178]. As this hearing was principally concerned with the second factor, that being the actual prejudice to the Respondents, it is considered first in my deliberations.

Actual Prejudice

The Respondents claim the delay in bringing charges has hindered them in mounting a defense, and has therefore caused them actual prejudice. This prejudice is related mainly to the loss of testimony they might otherwise have secured from their pesticide applicators, had the case been brought in a more timely manner.

In an affidavit, filed with the motion to dismiss, Respondent Schultheis said that since 1981, several people had been employed by Manor Maintenance Corporation. He said that with the exception of himself, none of the applicators employed on the dates of the alleged violations were still working for Manor, and that he himself had not performed the applications in question. He said that, having left Manor, none of his former employees were within his custody or control. He said that he did not how to find them, and that even if they were found, their memories would certainly have dulled with the passage of time.

In denying the motion to dismiss, I wrote that while there may have been actual prejudice, it was not clear the Respondents had made all reasonable efforts to find their former applicators. Absent such proof, one could not conclude that any prejudice was irreparable, and therefore the motion could not be granted.

At the hearing, the Respondents presented who they said were the applicators in question, which seemed to refute their position, taken previously, that the applicators could not be found. This was noted by the Department in its cross-examination of Richard Schultheis. Responding to counsel's questions, Schultheis said that, up until just before the hearing, he had not considered Frank, his brother, to have done any of the work at issue. He said that only by speaking to him, after writing the affidavit, did he realize that Frank had stayed with the business up until 1982, and therefore could have been to the Aiossa property. He conceded he had seen his brother regularly, and had always known how to reach him, but said that was not the case with Bruce Dumonceau, the other applicator. He said Dumonceau had not worked for him since the mid-1980's and was found, just before the hearing, through a customer who Dumonceau had referred.

Richard Schultheis testified that, for the four incidents in question, the properties had been visited by either Frank Schultheis or Bruce Dumonceau. This was based on records he had kept or reasonable conclusions he could draw based on the dates of their employment, the lack of other applicators employed by him, and his firm belief, as to the Aiossa incidents, that he had not used a subcontractor, which he had done on occasion up until the early 1980's.

Who, in fact, had done the applications is an important consideration, given the basis for prejudice alleged by the Respondents. In light of the testimony of Richard Schultheis, which is corroborated, to some extent, by his own business records, I conclude that all work at issue here was performed either by Frank Schultheis or Bruce Dumonceau. I also conclude that with the passage of time, their recollections have been lost and cannot be revived despite the parties' best efforts both before and at the hearing. Each of them said they could not recall having been to the premises, having spoken to the property owners, or having performed those acts alleged in the complaint. They said that while working for Manor, they had done about two termite jobs per day (which was consistent with the testimony of Richard Schultheis) and that they had long ago left for jobs in other fields.

Frank Schultheis and Bruce Dumonceau were cross-examined based on documents still maintained by the parties as part of a discovery packet. They had reviewed it prior to testifying, and had been asked by Respondents' counsel what, if anything, they knew. Nothing in the discovery packet, or in the conversations had prior to taking the stand, revived the applicators' recollections. Their memories were not refreshed by their direct examination or by the Department's vigorous cross-examination. One of the men, Mr. Dumonceau, said, "I hear names, I see pictures, I see addresses, they mean nothing to me." He was exasperated, but understandably so. It was apparent he had no memory for the incidents, although he was trying to be helpful.

The Department submits that, to a certain extent, the applicators' testimony is self-serving, apparently on the theory that they do remember what happened, but deny it because it would implicate them and their former employer (who is, in the case of Frank Schultheis, his own brother). I understand this assertion but, having heard the testimony, I do not accept it. To me, both men seemed honest, forthright, and sincerely frustrated by their lack of recollection. They were asked about events which occurred between six and eleven years ago, events that, when they happened, were likely not remarkable, but rather only a part of their general work routine. In evaluating their testimony, one must consider whether they might reasonably have forgotten. This must be done in context of facts, as developed in the record, notably the number of jobs they performed (up to two termite jobs each working day, for a period of several years), the repetitious nature of their work, their long ago having left the business, and (for Aiossa and Biancardi) the long periods (almost a year and more) between the alleged incidents and the time complaints were first registered with DEC. There is no record of the Department having spoken to either of the applicators prior to the hearing, or of the applicators having been asked for, or having given, written statements either to DEC or to the Respondents. It's not even clear when they knew for the first time what was really at issue in the complaints that were made to the Department.

Had the applicators made statements of their own, these statements would be most likely to revive a recollection, more so than the statements of others, or other records maintained by the parties. Presumably, such statements don't exist; if they had, they would be part of the discovery packet, and the Department would be expected to have used them at the hearing.

Concluding, as I do, that the applicators have lost their recollections, one must also decide if this is due to the delay in bringing the charges. I conclude it is since the passage of time would be expected to dull, or even erase, any memory the applicators had for these incidents. Apart from that, has the delay, then, prejudiced the Respondents? I conclude that it has since it has deprived them of the ability (1) to review events with people who were actually there and (2) to present testimony which might be favorable to their defense.

The Cortlandt decision states that, in assessing a claim under SAPA 301(1), it is "critical" to consider whether delay has caused "substantial prejudice" to the private party, or, put another way, whether it has "significantly and irreparably handicapped" its ability to mount a defense [66 NY2d 169, at 180]. The question is one of degree, and where the prejudice is sufficiently severe, the proceeding may be dismissed either by the agency in the first instance, or by the courts on review of a final determination.

As noted above, the Respondents have been prejudiced, and therefore handicapped, by the delay in bringing this matter. Is this handicap significant and irreparable? Yes, it is both, as argued by the Respondents. It is significant because of the weight one might have given to the first-hand accounts of the applicators, had this hearing been held at an earlier date. It is irreparable because memories, now lost, will not be revived, all reasonable attempts having failed.

The Respondents have incurred substantial prejudice even though there is some remaining evidence they could offer. The Respondents still have those business records that they gave to the Department, which were preserved by DEC and returned in its discovery packet. There may be evidence one could take regarding an established business routine that was developed by Manor, and used by its employees, in regard to its termite work.

The Respondents may still be able to mount some kind of defense, but that is not the point. The point is not what the Respondents have left, but the importance of what they have lost, irretrievably, with the passage of time. What the Respondents have lost is the memory of their applicators, and therefore their testimony as to what actually happened on the dates in question. This is a substantial loss because of the weight such testimony might have had. It is a prejudice that is shown by the hearing record, unlike other prejudice alleged by the Respondents and discussed here briefly:

  • Unavailability of Business Records. The Respondents assert they are only required to keep pesticide application records for three years [see 6 NYCRR 325.25(a)] and that, if charges are brought more than three years after an application, there is prejudice as a matter of law. I disagree with this contention and note further that this an administrative action, for which there is no applicable statute of limitations. The Respondents failed to show there were records they once had which are no longer available, and that these records would have been relevant to the charges. In the absence of this proof, no prejudice was apparent.
  • Failure to provide inspection samples. The Respondents assert they are prejudiced by the Department's failure to provide them with "splits" of samples taken from the named premises. This sampling was done many years ago, at the time of the initial investigations, apparently to corroborate the property owners' claims as to how pesticides were applied, and to document pesticide contamination. The Department has provided the sampling results and all supporting lab documents, but it did not provide "splits" (apparently this is impossible, given the sampling technique used) nor did it give the Respondents other samples taken contemporaneously with their own (which the Respondents could have tested for themselves). The Respondents claim that, with the passage of time, this has prejudiced their ability to defend. They did not show this prejudice was irreparable; perhaps even now, further sampling could be done, and the results received as probative of the issues in this matter. It is unknown, for instance, whether pesticides applied many years ago might still be detected, or whether site conditions have changed, perhaps by applications done since the Department's testing.

Other Factors

Resolution of the Respondent's motion depends on a number of factors in addition to actual prejudice. One such factor, the cause of delay, was put at issue in the hearing, and therefore deserves attention beyond what was given in my prior ruling.

Cause of Delay

The Department is the sole cause for delay in this matter. Nothing but its own conduct, after it first received the complaints, prevented its bringing charges in a more timely fashion. There is no indication that the Respondents delayed or "stonewalled" the Department's investigation. Also, the Respondents had no duty to ask for a hearing; whether to bring charges, and therefore commence a hearing, was wholly within the Department's prerogative.

Accepting, for the sake of argument, that the Department is underfunded, it should re-direct staff to its enforcement efforts and, if this is not possible, better prioritize among its pending cases, and even abandon those that are least important to its overall enforcement scheme. Whatever the Department's problems, they cannot be an excuse when delay has caused prejudice to the extent demonstrated by this record.

Nature of the Parties' Interests

The Cortlandt decision contemplates a consideration and weighing of the Respondents' interests allegedly compromised by delay, and the underlying public policy advanced by the pesticide regulations. These matters required no factual litigation and were not argued at the hearing by the parties. They were evaluated in my prior ruling and there is no need to address them further, except to note that they are not significant to my conclusion and recommendation.

Summary

Overall, there are two important considerations:

  1. The Respondents have been substantially prejudiced by the delay in bringing this action.
  2. This delay between the receipt of consumer complaints and the issuance of formal charges was caused solely by the Department.

CONCLUSION

The Respondents have not been afforded a hearing within a reasonable time, as required by SAPA 301(1).

RECOMMENDATION

The charges in this matter should be dismissed with prejudice.

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions