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Terminix International Company, LP - Ruling, February 9, 1999

Ruling, February 9, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 33
of the New York State Environmental Conservation Law, and
6 NYCRR Part 325 et seq. by The Terminix International
Company, L.P.
Respondent

Petition to Intervene

Case No. R4-1977-97-05

Proceedings

The New York State Department of Environmental Conservation ("Department") Region 4 Staff ("Staff") commenced the instant civil administrative enforcement proceeding against. The Terminix International Company, L.P. ("Respondent"), for alleged violations of Article 33 of the New York State Environmental Conservation Law ("ECL"), and 6 NYCRR Part 325 et seq., related to applications of pesticide at a residence. Pursuant to a Verified Petition dated January 27, 1999, Bruce Trimper and Karen Trimper ("Petitioners"), through their attorney, Carl G. Dworkin, Esq., seek to intervene. Respondent, through its attorneys McElroy, Deutsch & Mulvaney (Robert Muilenberg, Esq., of counsel), filed a statement in opposition dated February 2, 1999. The Department Staff did not respond to the Petitioners' request.

Summary of the Parties' Positions

The Petitioners

The Petitioners seek to intervene to protect their private rights as the owners of the residence where the actions that are the subject of this proceeding are alleged to have taken place. The Petitioners propose to offer witnesses to identify the chemical allegedly used at their residence, show that it was misapplied, establish the remediation and costs they believe are required, and put into evidence proof of any element of alleged violations of Federal or State law or regulations to the extent that Staff cannot or does not offer such evidence.

The Petitioners claim that their interests may be significantly affected by the outcome of this proceeding because the Staff seek remediation of the Petitioners' property as part of the relief. The Petitioners want to prove that removal of a cinder block wall and soil must take place before they may safely return to their home.

Asserting that they have personal knowledge of the events that occurred in their residence, and noting that numerous contacts have been made with witnesses and experts, the Petitioners claim that their private rights will be substantially adversely affected by not being permitted to present their information. The Petitioners further assert that the Staff cannot adequately represent the Petitioners' interests since the Staff are not residents of the allegedly contaminated house.

The Respondent

Claiming that the Petitioners' rights will not be substantially adversely affected and that such rights will be adequately represented by the parties to the hearing, the Respondent wants the petition denied.

The Respondent points out that the Department seeks the same relief as the Petitioners - the remediation of the Petitioners' home; and that the Department has been involved with inspecting and sampling the site since April 1997. Thus, the Respondent argues, the Department is fully capable of prosecuting the claim for remediation and will adequately protect the Petitioners' interest in such. Furthermore, the Respondent points out that the Petitioners will have an opportunity to comment on any remediation plan before it is approved by the Department.

The Respondent argues that the Petitioners would expand the scope of the proceeding beyond the Department's claims to reach matters to be addressed in arbitration pending between the Respondent and the Petitioners. To the extent the Petitioners or their witnesses have relevant information, the Respondent argues that the Department may, in its discretion, call them as witnesses.

Discussion and Ruling

Under 6 NYCRR §622.10(f), an ALJ is allowed to permit a petitioner to intervene in a Department enforcement case for good cause, but only "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 to the hearing." See §622.10(f)(3), emphasis supplied.

The Department initiates cases such as this for the purpose of enforcing its own regulations. It is in the agency's discretion to determine which alleged violations will be pursued and what remedies will be sought. There is no authority to allow third parties to take on the role of prosecutor (as the petition seems to suggest), even when they have been directly affected by the alleged wrong doing. If alleged acts give third parties a private cause of action against a respondent, the third parties must pursue their remedies elsewhere, since there is no jurisdiction to do so here.

This does not mean that there is no way for persons without party status to participate in the Department's enforcement cases. Such persons may have valuable information that should be placed on the record. To the extent that individuals have information relevant to the case (whether from experts they have hired or from eyewitnesses), they are encouraged to make it available for the Staff's use as the Staff shall deem appropriate. Party status is not required to do this.

Sometimes, as here, the Department will seek remedial action as relief for alleged wrong doing. The owner of the property where such action is proposed would be directly affected. Usually remedial action is viewed as a benefit, but that is not always the case. The property owner may be affected in ways that the Department or a respondent could not anticipate. Of course, the property owner can always protect its private rights by refusing to consent to remedial work it does not like. However, there is no reason why the Department should wait until that point in time to learn that the property owner's needs are not being met.

Although a property owner may make its views on remediation known to Staff without having party status, party status would ensure an open channel for these views to the ultimate decision maker.

At this point in time it is too soon to know whether or not a hearing will take place. Hopefully the parties will be able to settle this matter. The Petitioners should be a party to any settlement on the issue of remediation. In the event they are not satisfied, they may request a hearing on that issue to make their concerns known.

For the reasons discussed above, the Petitioners' request for party status is granted, but only for the purpose of addressing remediation of their property. To the extent the Petitioners have information relevant to the Department's case in chief, they are encouraged to make it available to the Department Staff.

February 9, 1999
Albany, NY

__________________________
Frank Montecalvo
Administrative Law Judge

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