NY.gov Portal State Agency Listing Search all of NY.gov
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.

Saddle Mountain Corp Inc. - Ruling 2, April 25, 2002

Ruling 2, April 25, 2002

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Alleged Violations of Article 17 of the Environmental Conservation Law by:

Saddle Mountain Corporation, Inc.

DBA Camp Timber Lake,

Respondent.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

File No. R4-2001-1022-132

Background

These rulings address two pending motions in this matter: one, by Department Staff, to dismiss the Respondent's second affirmative defense, and the other, by the Respondent, renewing and rearguing claims addressed in portions of my March 6, 2002 rulings, particularly my ruling dismissing its third affirmative defense.

Staff's Motion

Department Staff's complaint alleges, among other things, various violations of the daily limits for various parameters in the Respondent's State Pollutant Discharge Elimination System (SPDES) permit. The Respondent's answer, dated January 11, 2002, included 11 affirmative defenses, the second being that to the extent that any SPDES permit limits were exceeded, "such exceedences are due to an Act of God and beyond the reasonable control of the Respondent."

By papers dated January 25, 2002, Department Staff moved for a ruling either dismissing all the affirmative defenses or requiring that they be clarified. In response, on March 6, 2002, I ruled that the second affirmative defense required clarification because it was vague and lacked a supporting statement of facts.

Clarification was provided in a supplemental answer submitted, pursuant to my directive, on March 15, 2002. According to the answer, any exceedences that may have occurred in the year 2000 (12 of the 18 charged by Department Staff) were beyond the Respondent's control and were due solely and directly to exceptionally heavy rainfall that submerged the surface of the sand beds at the Respondent's facility both before and during the operating season of its summer camp. According to the answer, the beds need to dry out periodically in order to function properly, but the weather conditions prevented this from occurring. The answer states that the Respondent employed all reasonably available means to clean and dry out the sand filters, but due to the continuing heavy rains in the 2000 season, it was impossible to bring them to the point that they could function properly.

By papers dated March 22, 2002, Department Staff moved to dismiss the now-clarified second affirmative defense.

- - Position of Department Staff

Department Staff assert that, despite its clarification, the second affirmative defense should be dismissed because it sets forth no legal basis in the permit, regulations or statute that provides a defense to liability for a permit limit violation because of weather conditions.

- - Position of the Respondent

The Respondent claims that DEC regulations do not require either that in pleading an affirmative defense, the legal basis of the defense be set forth, or that the absence of citation to legal authority warrants dismissal. In any event, the Respondent says, its answer now adequately states an affirmative defense, namely, that alleged violations were caused by an act of God beyond the Respondent's reasonable control.

Discussion

The Department's enforcement hearing procedures require that an answer explicitly state any affirmative defenses together with a statement of facts which constitute the grounds of each one. [6 NYCRR 622.4(c).] While, as the Respondent argues, there is no explicit requirement that, in pleading such a defense, the legal basis of the defense be set forth, Department Staff may move for clarification on the ground that an affirmative defense pled in an answer is vague or ambiguous and that Department Staff is not thereby placed on notice of the facts or legal theory upon which the defense is based. [6 NYCRR 622.4(f)]. Therefore, it is understood that in raising the defense in its answer, the Respondent must reveal the legal theory under which it is proceeding.

The apparent legal theory of the second affirmative defense remains that certain of the violations alleged in the complaint are solely and directly due to an act of God, that being heavy rainfall which overwhelmed the Respondent's treatment facility. Generally speaking, something is considered caused by an "act of God" when it happens by direct, immediate, and exclusive operation of forces of nature, uncontrolled or uninfluenced by the power of man and without human intervention, and is of such character that it could not have been prevented or escaped from by any amount of foresight or prudence, or by any reasonable degree of care or diligence. For weather conditions to be considered an act of God, they must be so extraordinarily harsh as to not be anticipated by reasonable design engineers. [See Pickersgill v. City of New York, 168 Misc.2d 768 (N.Y. City Civil Court, 1996), concerning a homeowner's negligence action against the city for property damages received after water from a city sewer backed up into his basement.]

Pickersgill and Canagialosi v. Hallen Construction Corp., 282 AD2d 565 (2d Dept., 2001), both cited by the Respondent, involved negligence suits brought in civil court to address property damage attributed to heavy rainfall. In each case, the act of God defense was raised and discussed in the court's decision.

The difference between those cases and this one is that the Department is not alleging negligence on the part of the Respondent; therefore, act of God, as a defense to negligence, has no bearing on liability for the charged violations. The violations as to which the Respondent has raised this defense carry strict liability; in other words, the Department need not prove negligence or other culpable mental state in order to make out a prima facie case. It is enough to show that the Respondent did not comply with the established limits of its SPDES permit, and the reasons for non-compliance are relevant only to the issue of the Department's requested relief, which in this case involves imposition of civil penalties and development of a corrective action plan.

The highest civil penalties assessed by the Department tend to be reserved for violations attributable to intentional, reckless or grossly negligent conduct, but where a violation has occurred despite a respondent taking all reasonable precautions, the Commissioner has held a penalty to be inappropriate. [See In the Matter of Town of LeRay, Commissioner's Order, March 24, 1989; and In the Matter of Theodore P. Smith, Commissioner's Decision and Order, November 1, 1988.]

The Respondent also cites the Commissioner's March 25, 1991 decision In the Matter of Berman Enterprises, Inc. et. al. as evidence that acts of God have been recognized as a defense in DEC administrative decisions. The Berman decision confirmed and extended a summary abatement order effectively shutting down the operations of a large barge company hauling sludge and petroleum products in New York City harbor. The order had been issued in light of the company's chronic non-compliance with state and federal regulations designed to protect the environment, public health and safety, as well as documented incidents that resulted in harbor pollution. In his decision, the Commissioner wrote that while the hearing record did not reflect a cause for all the alleged legal violations or pollution incidents, "there are no incidents that are fully explained by acts of God or other circumstances where the happening was affirmatively shown to be beyond the reasonable control of the Respondents." This was a factor in his conclusion that the continued operation of the company's barges would constitute an imminent danger to public welfare. [Berman, pages 4 and 5.]

While Berman, as cited above, mentions the act of God concept, this concept was not advanced as a defense by the barge company (which challenged the summary abatement order on other grounds), nor was it considered as a defense by the Commissioner. The Berman matter was not an enforcement hearing under Part 622 of the Department's regulations, but a summary abatement proceeding under 6 NYCRR Part 620. The legal violations cited by Department Staff as a basis for its summary abatement order had already been established in other forums, and the Respondent did not try to disprove them in the Department's hearing. Department Staff brought the violations into its hearing merely to show "a pervasive and unabated pattern of illegal conduct" that warranted shutting down the company and revoking the licenses under it which it operated.

Berman reflects the general principle that, on the issue of relief, one should consider whether a pollution incident was beyond the reasonable control of the party to which it has been ascribed. I agree with that principle, and it can be carried out here by considering the Respondent's argument not as a defense to the violations charged by Department Staff, but as a consideration with regard to the amount of civil penalties that may be assessed.

Ruling: The Respondent's second affirmative defense is dismissed, but the claims raised in the defense may be pursued to the extent they bear on culpability as a penalty factor. No further clarification of the defense is needed, but the Department is entitled to discovery with regard to the Respondent's assertions.

Respondent's Motion

Upon papers dated March 19, 2002, the Respondent moved to reargue portions of my March 6 rulings, particularly my ruling dismissing its third affirmative defense. According to that defense, in the course of constructing extensive renovations of its wastewater treatment plant in 1994, the Respondent proposed a design involving overland flow, and such design was rejected by the New York City Department of Environmental Protection (NYCDEP). The Respondent claims that NYCDEP compelled it to implement a different design that did not conform to the Respondent's consulting engineer's best professional judgment, and that to the extent any exceedences of the Respondent's SPDES permit occurred, they were due in whole or in part to the defective design that was allegedly imposed on the Respondent by NYCDEP.

My rulings of March 6 included a dismissal of this defense. I ruled that the Respondent's objections were waived once it accepted the SPDES permit and began operating its wastewater treatment plan under the new design. I ruled that design defect issues were no longer timely and were beyond the scope of this enforcement proceeding.

Department Staff answered the Respondent's motion in papers dated April 5, 2002. By letter dated April 8, 2002, the Respondent sought permission to make an additional filing on what it considered new issues introduced by Staff. I find that the record is already adequate to decide the pending motion.

- - Position of the Respondent

The Respondent contends that its third affirmative defense should be sustained, and that dismissal of the defense violates its rights under the State Administrative Procedure Act to present evidence and argument, as well as its constitutional right to due process. The Respondent claims it did not waive its right to raise NYCDEP's actions with respect to the treatment system design. In fact, it says that, under duress, it was effectively coerced into foregoing the design it judged would best achieve compliance with SPDES limits and to implement a design forced on it by NYCDEP, a design to which it never dropped its objections, though there was no legal forum where these objections could be heard. In the event that evidence regarding NYCDEP's refusal to consider the Respondent's proposed design is deemed inadmissible as part of an affirmative defense, the Respondent claims that such evidence must at least be admitted in mitigation of any penalty that may be imposed in this proceeding.

- - Position of Department Staff

Department Staff maintain that the design issues raised by the Respondent's third affirmative defense should not be heard within the context of an enforcement action. According to Department Staff, the Respondent could have applied to the Department at any time to modify its SPDES permit to allow for a groundwater discharge necessary to authorize an overland flow system. By way of information, Department Staff says the record does not support the Respondent's claim of coercion. Staff claims that the Respondent of its own free will withdrew its request for consideration of an overland flow system.

Discussion

The thrust of the Respondent's third affirmative defense is that, in the course of renovating its wastewater treatment plant, NYCDEP compelled it to implement a design different from the one the Respondent had proposed. However, an April 18, 1994 letter of the Respondent's engineer, attached as Exhibit "H" to the Respondent's motion, states that since NYCDEP would not give the Respondent any credit for installing the overland flow system for effluent polishing, the Respondent "has elected to eliminate that part of the process." In other words, the elimination of overland flow was ultimately a choice that the Respondent made, not something imposed on the Respondent by NYCDEP. Once overland flow was eliminated, the Respondent's engineering plans were approved by NYCDEP, with the Department's concurrence, and the improvements to the wastewater treatment system were made. The Respondent's decision to eliminate overland flow was apparently made to secure an agreement with NYCDEP allowing improvements to go forward, and thereby protect against any disruption of its business. But that does not mean the decision was coerced or the result of duress, as alleged in the Respondent's papers.

As Staff argue, the SPDES permitting authority for this facility rests with the Department, not NYCDEP. Though no such application was made, the Respondent could have applied to the Department at any time to modify its permit to authorize a groundwater discharge consistent with an overland flow treatment scheme. If the Department had denied such a request for modification, the Respondent would have had a right under 6 NYCRR 621.13(d) to request a hearing.

Ruling: I hereby reaffirm my prior dismissal of the Respondent's third affirmative defense. The factual allegation of compulsion is not demonstrated by the Respondent's own papers, so there is no prejudice or deprivation of due process rights in not pursuing it further. The Respondent's objections to the system it ultimately implemented were waived once it elected to go with that system and eliminate the overland flow component. To find otherwise would tend to shift responsibility for the Respondent's decision to NYCDEP, which would be a perverse result.

Even if its third affirmative defense is not recognized, the Respondent seeks credit in mitigation of any penalty for its good faith cooperation to improve its wastewater treatment system in 1994, cooperation which was acknowledged at the time in a letter from NYCDEP (Exhibit I to Respondent's motion). Such cooperation with regulatory authorities shall be a relevant penalty consideration with regard to violations of permit limits, but not an affirmative defense.

The Respondent also proposes that evidence related to its sixth affirmative defense (which I have previously dismissed) be admitted in mitigation of penalties. This request is denied. The sixth affirmative defense concerns Department Staff's charge that, at the time of an August 1, 2001 inspection, the Respondent's facility was not under the supervision of a certified wastewater treatment plant operator. The Respondent claims that the Department is estopped from pursuing this cause of action because it gave permission for the Respondent to operate during the 2001 season without a certified operator on the condition that the existing operator be certified by the start of the 2002 season. The Respondent asserts that it readily accepted this condition and relied on the permission in good faith.

By the same reasoning that I previously dismissed this argument as a defense, I hereby now dismiss it as a penalty mitigation factor. No estoppel can be based on representations which, by the Respondent's own admission, postdate the charged violation, as more fully explained in my March 6, 2002 rulings. However, I will consider in mitigation the Respondent's efforts to correct the violation, including availing itself of Department Staff's assistance.

Order of Disposition

The Respondent requested that the hearing in this matter be adjourned based on its request to the Department Commissioner for leave to appeal a portion of my March 6 rulings. By letter of March 28, 2002, from Jo Anne W. Di Stefano, assistant commissioner for hearings and mediation services, the request for an expedited appeal was denied. As a result, there is no basis to delay further action in this matter.

By letter of April 5, 2002, Department Staff said it would be filing a motion for order without hearing once these rulings are issued. Staff is correct that no statement of readiness is required with such a motion. I will await receipt of the motion, after which the Respondent will have the 20 days afforded by regulation to respond. If the Respondent wants more time than that, it shall attempt to secure an extension from Department Staff or, if necessary, from me.

/s/
Edward Buhrmaster
Administrative Law Judge

Dated: April 25, 2002
Albany, New York

TO: Robert Feller, Esq.
Feller & Ferrentino
488 Broadway, Suite 512
The Broadway Arcade
Albany, New York 12207

Richard E. Ostrov, Esq.
NYS Department of Environmental Conservation
Division of Legal Affairs, Region 4
1150 North Westcott Road
Schenectady, New York 12306-2014

  • 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