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Riverhead, Town of - Interim Decision, November 20, 2000

Interim Decision, November 20, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
Alleged Violations of Articles 17 and 71 of the Environmental Conservation Law and Part 750 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

TOWN OF RIVERHEAD ,
RESPONDENT

RULING ON MOTION OF AN EXPEDITED APPEAL

November 20, 2000

File No. R1-20000-0112-5

Introduction

This Decision relates to appeals to the Ruling of Administrative Law Judge (ALJ) Susan J. DuBois issued April 10, 2000, granting a petition by the Peconic BayKeeper to intervene in an administrative enforcement proceeding. Region One Staff with the New York State Department of Environmental Conservation ("Department Staff") sought leave to file an appeal of the ALJ Ruling on or about April 17, 2000. The Town of Riverhead ("Town") joined Department Staff's motion for leave to appeal or about April 17, 2000. Both Department Staff and the Town seek to reverse the Ruling on a variety of grounds.

Background

April 10, 2000 Ruling

The Ruling memorializes a ruling made by the ALJ on the record during the administrative enforcement proceeding held on April 5, 2000. The proceeding concerned alleged violations by the Town of its State Pollutant Discharge Elimination System ("SPDES") permit related to effluent discharges from its Sewer District Sewage Treatment Plant. The complaint alleged that the Town exceeded various effluent limitations in the permit on various dates between November 1998 and November 1999, and discharged untreated sewage on December 20 and 21, 1999. The complaint sought as relief an order prohibiting further violations and requiring compliance with a schedule for improving facility operation and an administrative penalty in the amount of $100,000.

In her ruling granting intervention, the ALJ relied on, inter alia, correspondence and submissions by the BayKeeper:

The correspondence submitted by the BayKeeper identified the BayKeeper's role with regard to the natural resources of Peconic Bay and the resource-based aspects of the local economy. The correspondence also identified intended evidence and argument including water quality data, information on the water quality's impacts on the estuary's habitat and natural resources including shellfish populations, and data about economic impacts on the baymen due to alleged habitat decline and due to the December 20 and 21, 1999 events.

The correspondence submitted by the BayKeeper proposed that the Town of Riverhead be required to commit to a $10,000 shellfish restocking effort. In support of the petition, the BayKeeper submitted a letter from the Southampton Town Baymen's Association which stated that the December, 1999 event caused the baymen to be unable to clam in the area of Reeves Bay and to lose large amounts of income. The BayKeeper also argued that if the matter is not resolved as he proposes, this will irreparably damage his ability to gain cooperation of baymen and other water-related industries in improving their practices so as to limit pollution. (Ruling, p. 2).

The ALJ also noted Department Staff's arguments that the BayKeeper has no legal entitlement to restocking and that civil court represented the best forum to achieve that type of relief. The ALJ also acknowledged the prospect that a settlement which included restocking as an environmental benefit project might be an option.

While the ALJ's Ruling does not articulate the exact reasons for granting BayKeeper's motion to intervene, it appears the ALJ relied on the alleged harm BayKeeper would suffer if its restocking request was not included in the relief obtained from the Respondent and her belief that the relief Staff sought, either through settlement or administrative resolution of the complaint, would not "adequately represent the BayKeeper's interest in re-stocking of shellfish." Ruling, p. 2.

Post April 10, 2000 Proceedings

ALJ Rulings dated May 2, 2000, June 6, 2000, June 20, 2000, July 27, 2000, and August 18, 2000 indicate that efforts to resolve this matter without further litigation and in a manner satisfactory to all interested parties, proved unsuccessful. Status reports received on or about September 8, 2000 at the ALJ's request and correspondence since that time confirm stalled settlement discussions and the unlikelihood of an amicable resolution of this matter. On October 3, 2000, DEC Staff made a written request to resolve this dispute through mediation by DEC's Office of Mediation and Hearing Services. A prerequisite to a mediation is that all parties must consent to that dispute resolution mechanism. Here, Staff's offer of mediation was accepted by the Town but was rejected by the BayKeeper.

Discussion

Preliminarily, the Town errs in its assertion that the regulatory provision allowing intervention in the Department's administrative enforcement hearings is ultra vires and thus unconstitutional. Although reviewing the constitutionality of a final rule is a determination usually reserved to the courts (See, e.g., Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation, 260 A.D.2d 920, 922 [3rd Dep't 1999]), the ECL states that the Commissioner has the power to promulgate, adopt, amend or repeal rules. ECL §3-0301(2)(a). In addition, judicial review of rules may not occur "unless the petitioner has first requested the agency to pass upon the validity or applicability of the rule in question." SAPA §205.

Here, I find 6 NYCRR 622.10(f), the provision allowing for intervention in an enforcement hearing, to be a valid final rule. It falls within the proper scope of the Department's powers to promulgate rules for the efficient conduct of administrative enforcement hearings and ample statutory authority exists for this provision. See, e.g., ECL §§3-0301, 17-0303, 17-1709, 19-0301, 23-0305 and 71-0301. The general powers, duties and functions of the Department and the Commissioner enumerated in these provisions are broad and do not reflect, in my view, a disinterest in public participation. Part 622.10(f) is carefully crafted to allow, in certain instances, a person to intervene in the Department's administrative enforcement proceeding. It does not undermine the enforcement authority delegated to the Department and the Commissioner by the Legislature, as implied by the Town.

Turning now to the crux of this appeal, 6 NYCRR Part 622 sets forth the Uniform Enforcement Hearing Procedures. The regulatory provision at issue, 6 NYCRR 622.10(f), articulates the requirements for intervention in an administrative enforcement proceeding(1):

  1. At any time after the institution of a proceeding, the commissioner or ALJ upon receipt of a verified petition in writing and for good cause shown may permit a person to intervene as a party.
  2. The petition of any person desiring to intervene as a party must state with preciseness and particularity:
    1. the petitioner's relationship to the matters involved;
    2. the nature of the material petitioner intends to present into evidence;
    3. the nature of the argument petitioner intends to make; and
    4. any other reason the petitioner should be allowed to intervene.
  3. Intervention will only be granted where it is demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested and that those rights cannot be adequately represented by the parties at the hearing. (Emphasis added).

A plain reading of 6 NYCRR 622.10(f)(3) indicates that persons seeking to intervene in an enforcement proceeding must satisfy three requirements: (1) that they have private rights, (2) that such rights would be substantially adversely affected by the relief requested, and (3) that such rights cannot be adequately represented by the parties at the hearing.(2) While this standard for intervention is stringent, it is not unreasonable in light of the primary enforcement role charged by statute to the Department and the Commissioner. See, ECL §3-0301 (listing of the general functions, powers and duties of the Department and the Commissioner which include, inter alia, protection, management and preservation of fish, aquatic life and wildlife [ECL §3-0301(1)(c)]; protection and management of marine and coastal resources and of wetlands, estuaries and shorelines [ECL §3-0301(1)(e)]; and prevention and abatement of water, land and air pollution [ECL §3-0101(1)(i)]; see also, ECL §71-0301 (grants Commissioner authority to order the immediate abatement of any condition or activity imminently endangering public health or welfare or likely to irreversibly or irreparably damage natural resources; ECL §71-2727 (1),(3)(grants Commissioner authority to enforce violations of any provision of ECL Article 71); ECL §1-0101 (declares that the policy of the State of New York "to conserve, improve and protect its natural resources and environment and control water, land and air pollution"). This statutory scheme patently reflects an intent that primacy as to enforcement of the State's environmental laws rests with the Commissioner and the Department. See e.g., Flacke v. NL Industries, 228 AD2d 888 (3d Dept. 1996) (court acknowledges plaintiff [the Commissioner and the State] acting in its governmental capacity as "gatekeeper of the environment" when bringing an enforcement proceeding).

New York case law on intervention in enforcement proceedings is sparse. The decisions relied on by the parties in their submissions are, in large part, irrelevant as the decisions were rendered prior to the 1993 amendments to Part 622, which included the addition of 6 NYCRR 622.10(f)(3), the more rigorous requirement for intervention. Since the 1993 amendment, intervention in an enforcement proceeding has been rare and limited. See, e.g., Matter of Terminix, Ruling on Petition to Intervene, February 9, 1999 (in an enforcement case involving improper pesticide applications to a private residence, the ALJ granted intervention to the homeowners on the ground that the remedial relief to be ordered by the Department might adversely affect the homeowners in ways the Department or respondent might not anticipate).

In responding to public comments on the standard for intervention in enforcement proceedings stated in 622.10(f)(3), the Department properly recognized the sharp distinction between intervening in an enforcement hearing and participating as an active party in a permit hearing:

Staff, however, has the primary legal obligation to prosecute violators of the ECL. Public participation is available through interaction with DEC Staff. Citizens, municipalities and citizens may pursue their objectives by registering complaints with Staff, volunteering to be witnesses and otherwise assisting in Staff's prosecution.

See, Public Comment Responsiveness Documents, Parts 622 and 624, p. 8, December 1993; see also, Matter of Danny Fortune & Co., Ruling on Motion for Intervention, December 12, 1999 (in denying Town's request to intervene in enforcement hearing on ground that Town did not assert private right that would be affected by enforcement action, ALJ notes that Town may accomplish its objectives by assisting DEC in a variety of other ways).

Upon a review of the applicable case law, statutes and regulations, I am compelled to disagree with the ALJ's finding granting BayKeeper intervention in this enforcement proceeding. The ECL, its implementing regulations and the few decisions on this issue clearly establish a more exacting standard for third party intervention in the Department's administrative enforcement hearings. The rationale for the narrower standard is consistent with the statutory framework and the nature of the proceeding, namely enforcement, which is a responsibility that rests principally with the State.

I find unpersuasive BayKeeper's assertion that it possesses private rights at issue in this proceeding. Submissions from BayKeeper, including its petition, do not articulate how it will suffer an environmental impact that is in some way different from that of the public at large. BayKeeper's petition and subsequent correspondence describe, in my view, an organization that represents a number of different constituencies and pursues goals and objectives not particular to any private person, but aims the public as a whole would embrace and support.

The BayKeeper serves as the public's "eyes and ears" by identifying and investigating problems that may adversely impact the estuary. Further, I work diligently to resolve environmental conflicts in the best interest of the estuary and the community that shares this precious resource. Petition, February 10, 2000, paragraph 1.

As the Peconic BayKeeper, I am the citizen's voice for the bays. The Peconic BayKeeper represents the local baymen, fisherman and other citizens effected by these violations. I work closely with the many effected citizens that are connected to the waters and have a vested interest in protecting the long-term health of the estuary. Id., paragraph 9.

As the Peconic BayKeeper, I have a responsibility to protect the resource and to ensure that the baymen's. interests are well represented. Protecting the resource and the economic viability of the baymen who rely on that resource are my priorities. Id., paragraph 10.

As the Peconic BayKeeper, I make a full-time professional commitment to protecting the environmental and economic health of the Peconic Estuary. I patrol the bay, prevent pollution, conduct investigations, provide public education and represent the interests of the 120,000 year-round citizens who are concerned about the future health and conservation of this nationally recognized estuary. Letter, February 22, 2000, p. 1.

As the citizen's voice, I call into question the inaction on the part of the DEC to take appropriate enforcement action for the 1,178 documented violations for the period beginning November 1, 1998 through November 1999. Id., p. 2.

Moreover, it is difficult to accept BayKeeper's contention that such rights - even if they did exist - cannot be adequately represented by the Department.

There is no question that the goal of protecting the Peconic Estuary is shared by the Department and by BayKeeper. The latter's submissions in this proceeding reflect a genuine and profound appreciation of this resource. However, the ECL statutory and regulatory scheme clearly place the Department in the lead role on matters of environmental enforcement and the Department's prosecutorial enforcement arm plainly serves the public interest. Accordingly, based on these facts, I cannot agree that BayKeeper has private rights which cannot be adequately represented by the Department.

Finally, even assuming such private rights did exist, BayKeeper's petition and supporting papers do not demonstrate how "the petitioner's private rights would be substantially adversely affected by the relief requested." 6 NYCRR 622.10(f)(3). (Emphasis added). DEC Staff's complaint sought (1) a Commissioner's Order demanding that Respondent cease and desist from any further violations of the Environmental Conservation Law and comply with a proposed schedule of compliance, and (2) a Commissioner's Order demanding a $100,000 penalty for the violations. See, Complaint, January 14, 2000. There is no showing by BayKeeper that the relief requested by the Department would adversely affect its alleged private rights.(3)

Conclusion

For the above stated reasons, the ALJ's Ruling rendered April 10, 2000 is reversed, and the petition of BayKeeper to intervene in the instant enforcement proceeding is denied.

_____________/s/_____________
John P. Cahill,
Commissioner
Albany, New York

Dated: November 20, 2000

1 The requirements for intervention in a permit hearing are completely different. Permit hearing procedures are promulgated in 6 NYCRR Part 624. In a permit hearing, persons interested in obtaining "party status" are required to raise a "substantive and significant" issue. See, 6 NYCRR 624.4(b),(c). Here, in an enforcement context, a proposed intervenor must show not only a specific and particular relationship with the matters involved, but demonstrate, inter alia, how the intervenor's private right's would be adversely affected by the relief requested and how those rights cannot be adequately represented by the parties in the proceeding. See, 6 NYCRR 621.10(f)(2),(3). Accordingly, BayKeeper's reliance on a July 1, 1996 ALJ ruling granting "intervention" to the Group for the South Fork is misplaced as that matter, while it involved modifying the Town's SPDES permit for its sewage treatment plant, concerned granting party status and the existence of adjudicable issues under the Department's permit hearing regulations. See, Affirmation in Opposition to Respondents' Motions for Leave to Appeal, May 1, 2000, Paragraphs 4, 5.

2 BayKeeper states that it seeks the following: immediate compliance with the permit, penalties commensurate with the violation, penalties in the form of "mitigation that will directly benefit the resource," and "appropriate restitution to the baymen." Letter, February 22, 2000, p. 3. The first three items are certainly within the Department's discretion to seek, and the fourth, restitution, is a remedy more properly sought in civil court.

3 Contrary to the statements of counsel for BayKeeper, the Town and DEC Staff do not have the burden of showing that they will be prejudiced or incur harm by allowing intervention. See, Affirmation, May 1, 2000, paragraph 7.

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