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Weil, Jeffrey - Decision and Order, January 14, 2003

Decision and Order, January 14, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
Alleged Violations of Article 17 of the Environmental Conservation Law of the
State of New York and Section 650.10(c) of Title 6
of the Official Compilation of Codes, Rules and Regulations,

-by-

Jeffrey Weil
90-12 103rd Avenue
Ozone Park, NY 11417
Respondent.

DECISION AND ORDER

DEC File No. CO-2-19991918-763

WHEREAS:

Pursuant to a Notice of Hearing and Complaint dated May 30, 2001, and duly served upon respondent Jeffrey Weil, an enforcement hearing was held before Administrative Law Judge Helene G. Goldberger (ALJ) on January 29, 2002, and April 4, 2002. The record was closed on May 6, 2002 upon the receipt of the last transcript. The Department of Environmental Conservation (DEC) staff was represented by attorney Scott Crisafulli, Water Compliance Counsel and Mitchell B. Craner, Esq. represented the respondent.

Upon review of the ALJ's hearing report (copy attached) and the record of the proceeding, I adopt the ALJ's findings of fact, conclusions, and recommendations.

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

  1. The respondent, Jeffrey Weil, is liable for two violations of 6 NYCRR § 650.10(c) for acting fraudulently and deceitfully in performing his duties as a DEC-certified Grade 4A Wastewater Treatment Plant operator.
  2. Respondent is assessed a penalty of ONE THOUSAND DOLLARS ($1,000).
  3. Respondent's Wastewater Treatment Plant Operator's certification(s) (Grades 3A and 4A) are suspended for a period of one year from the date of this Decision and Order.
  4. All communications between respondent and DEC concerning this Decision and Order shall be made to the Department's Region 2 Director, 47-40 21st Street, Long Island City, New York 11101.
  5. The provisions, terms, and conditions of this Decision and Order shall bind respondent and anyone acting on his behalf.

For the New York State Department
of Environmental Conservation
/s/
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
January 14, 2003

TO: Scott Crisafulli
Water Compliance Counsel
NYSDEC - Division of Environmental Enforcement
625 Broadway
Albany, New York 12233-5500

Mitchell B. Craner, Esq.
1 Rockefeller Plaza
New York, New York 10020

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

In the Matter of
the Alleged Violations of Article 17 of the Environmental Conservation Law
of the State of New York and of Section 650.10(c) of the Official
Compilation of Codes, Rules and Regulations of the State of New York by

JEFFREY WEIL
Respondent

File No. CO-2-19991918-763

Hearing Report

-by-

/s/
Helene G. Goldberger
Administrative Law Judge

Proceedings

On May 30, 2001, the Department of Environmental Conservation (DEC) staff served a notice of hearing and complaint upon respondent, Jeffrey Weil. Staff seeks to revoke Mr. Weil's Grade 3A and 4A Wastewater Treatment Plant Operator Certificates and to obtain payable penalties for alleged negligence, fraud, and deceit committed by the respondent in the performance of his duties pursuant to § 650.10(c) of Title 6 of the New York Compilation of Codes, Rules and Regulations (NYCRR).

The respondent, by his attorney, Mitchell B. Craner, filed an answer dated July 16, 2001. On October 23, 2001, DEC Water Compliance Counsel, Scott Crisafulli, filed a Statement of Readiness with the Office of Hearings and Mediation Services (OHMS). Administrative Law Judge (ALJ) Helene G. Goldberger was assigned to this matter and convened a conference call with the parties on November 9, 2001. The parties agreed to a hearing date of January 29, 2002. The hearing was held on that date at DEC's Region 2 offices in Long Island City.

On January 31, 2002, ALJ Goldberger received a motion made by staff to reopen the hearing record to admit certain additional evidence. Staff stated in these motion papers that one of the Department's witnesses, Timothy Miller, unintentionally provided inaccurate testimony with respect to the qualifications required for the New York City Department of Environmental Protection (DEP) title of Assistant Plant Chief. With the submission of an affidavit of Mr. Miller and two attachments as additional exhibits, staff sought to correct this misinformation that it deemed important to its case. Due to a misunderstanding as to the date the response was due to the motion, the respondent submitted a late response. By ruling dated February 14, 2002, ALJ Goldberger granted staff's motion and allowed into the record the affidavit of Timothy J. Miller dated January 31, 2002, and the attachments A and B thereto as Exhibits 8, 9, and 10, respectively. However, after receipt of Mr. Weil's objections on February 15, 2002, the ALJ convened a conference call and it was agreed that the hearing would continue to allow for Mr. Miller's testimony, any response by Mr. Weil, as well as cross-examination by the parties. This second and last day of hearing occurred on April 4, 2002 at 10:00 a.m. in the DEC Region 2 offices. The record of this hearing concluded on May 6, 2002 with the receipt of the transcript of the second day of hearing.

Positions of the Parties

Department Charges

The Department staff requests an order (1) revoking the respondent's certificates as a wastewater treatment plant operator; (2) directing that he be prohibited from reapplying for his wastewater treatment plant certificate for seven (7) years from the date of the hearing, (3) directing him to pay a penalty of $10,000 (ten thousand dollars), and (4) directing that he pay the costs incurred by the Department in bringing this administrative proceeding.

As grounds for certificate revocation, the Department staff alleges that respondent Weil, with knowledge, signed the fraudulent Grade 1 Wastewater Treatment Plant Operator Certificate applications of two subordinates, Anthony Firriolo and Michael Kalberer. In its opening statement, staff stressed that the Department relies upon the information contained in these applications to determine whether certification is appropriate. Attorney Crisafulli and DEC witness Smith also emphasized that the treatment equipment these certified individuals operate and maintain is key to protection of public health and safety as well as the environment. Staff also noted that the public funds these facilities at great cost and that only capable individuals should be permitted to operate them.(1)

Respondent's Position

Fundamentally, the respondent does not challenge the staff's position insofar as he admits having signed, as the supervisor of Firriolo and Kalberer, their wastewater treatment plant operator applications. The main argument put forward by counsel Craner is that Mr. Weil was not acting in his capacity as a Grade 3A or 4A Wastewater Treatment Plant Operator when he signed the applications knowing that the employees had provided inaccurate information about their respective experience. Counsel also argued that 6 NYCRR § 650.10(c) states that "the operator (was negligent, or practiced fraud or deceit, in the performance of his/her duties") [emphasis added] and maintained that this means the principal individual responsible for the sewage treatment plant which Mr. Weil was not. Rather, Mr. Craner contends that Mr. Weil signed the forms in the capacity of supervisor of these two individuals. In support of these arguments, counsel maintains that because the facility that Messrs. Weil, Firriolo and Kalberer were working at when the applications were signed - the Tallman Island Collection Facility - is not a wastewater treatment plant but rather a pumping station, 6 NYCRR § 650.10(c) was not implicated nor violated.

With respect to staff's additional testimony and evidence regarding the requirements for Mr. Weil's job title, Mr. Craner maintained that these credentials were irrelevant because the respondent was not acting as a certified operator when he signed the applications. Another individual, Roland or Ron Fesel, was the individual in charge of the facility - Mr. Weil was acting solely as an Assistant Plant Chief. Accordingly, respondent's position is that the complaint should be dismissed because it fails to meet the requirements for revocation in 6 NYCRR § 650.10(c) - that he was "negligent, practiced fraud or deceit in the performance of his duties."

Hearing

Witnesses for the Parties

Staff appeared by its counsel Scott Crisafulli and Kevin Quinn and presented the following witnesses: Phillip T. Smith, Section Chief for the Department's Training and Certification for Wastewater Treatment Operators; Timothy J. Miller, Environmental Project Specialist 2 in DEC's Division of Water; Michael Kalberer and Anthony Firriolo, the two New York City Department of Environmental Protection (DEP) employees; Ed Zinser and Marc J. Herman, two investigators with the New York City Department of Investigation (DOI).

On behalf of the respondent, Mitchell Craner, Esq. appeared and Mr. Weil testified.

Exhibits

The staff offered seven exhibits at the January 29, 2002 hearing and I accepted all of these into evidence. I also accepted as Exhibits 8, 9, and 10, the additional submissions the staff submitted with their motion to reopen the record of January 31, 2002 as well as Exhibits 11-13 offered by staff at the second day of the hearing. These exhibits are as follows:

The notice of hearing and complaint
The answer
Staff's statement of readiness
Anthony Firriolo's Application for Wastewater Treatment Plant Operator - Grade 1

Certification
  • Michael Kalberer's Application for Wastewater Treatment Plant Operator - Grade 1 Certification
  • Letter dated January 19, 1999 from NYC DEP Deputy Commissioner/Director Bureau of Wastewater Pollution Control Robert E. Adamski, P.E. to Tim Miller, DEC Facilities Operations Assistance Section, Bureau of Watershed Compliance Programs
  • Memorandum dated June 11, 1999 from NYC DOI Special Investigator Edward Zinser to the File re: Jeffrey Weil Interview
  • Affidavit of Timothy Miller dated January 31, 2002
  • Notice of Examination - Promotion Stationary Engineer (Electric)
  • Notice of Examination - Promotion to Senior Stationary Engineer (Electric)
  • Letter dated April 21, 1975 from Richard Newman to Edward Wagner
  • Notice of Examination - Promotion to Stationary Engineer - September 1986
  • Notice of Examination - Promotion to Stationary Engineer (Electric) - February 1993

The respondent did not offer any exhibits into evidence.

Findings of Fact

  1. Respondent Jeffrey Weil is employed as a Senior Stationary Engineer Electric C+, with the title of Deputy Chief Operator of the Hunt's Point Water Treatment Plant by the NYC DEP at the Hunts Point Wastewater Treatment Plant. Prior to this classification, respondent was a Stationary Engineer Electric.
  2. On August 15, 1994 and October 27, 1997, the Department issued respondent Grades 3A and 4A Wastewater Treatment Plant Operator Certificates, numbered 7371 and 9964, respectively. A Grade 4A operator may oversee operation of a sewage treatment plant and can also do any of the jobs associated with the lower certifications 1-3.
  3. Respondent Weil has worked for DEP since 1978. In addition to Hunt's Point and Tallman Island, he has also has worked at Coney Island, Astoria - Bowery Bay, and, Ward's Island treatment facilities. In October 1998, respondent served as the Deputy Chief Operator - also known as the Assistant Plant Superintendent - at the Tallman Island Collection Facilities North Pumping Station. The Chief Operator or Plant Superintendent was Ron Fesel who spent most of his time at the associated Ward's Island wastewater treatment plant. Among other duties, in his position as Deputy Chief, Mr. Weil supervised indirectly two employees, Michael Kalberer and Anthony Firriolo. In the chain of command at the facility there were two other employees between Weil and these two employees. When Mr. Fesel was at Ward's Island, Mr. Weil was in charge at Tallman Island.
  4. City of New York Department of Citywide Services requires that individuals seeking employment as a Stationary Electric Engineer in a wastewater treatment plant obtain certification as a Grade 3A Operator of Public Sewage Treatment Plants by DEC prior to the completion of the one year probationary period in that position. Those seeking employment as a Senior Electric Engineer may obtain preferential selection if at the time of appointment the individual maintains certification as a wastewater treatment operator by DEC. In the mid-70's, the Department used a different identification system for the certification program and a Grade IIA then would be equivalent to the current 3A. At the time the respondent was promoted to these titles, the certification requirement was in effect.
  5. On or about October 28, 1998, Messrs. Kalberer and Firriolo presented to the respondent their respective applications for certification as Grade 1 Wastewater Treatment Plant Operators. It is standard procedure for supervisors certified as Grade 3 or Grade 4 operators to sign off on these applications based upon their supervisory role at these facilities. In these applications, Kalberer and Firriolo misrepresented their work experience by stating they had served as sewage treatment operators at the Ward's Island Treatment Plant for over one year. Mr. Weil signed the applications as the supervisor of these individuals knowing that this work experience information was false. Kalberer and Firriolo worked at Tallman Island which is not a treatment facility but rather a pumping station. The Grade 1 certification process requires that applicants have at least 6 months experience at a wastewater treatment facility to qualify for certification.
  6. These false applications were forwarded to DEP and DEC. As a result of an investigation by NYC DOI, Weil, Kalberer and Firriolo were arrested and charged for these actions. The District Attorney entered into plea bargains with them. In addition, Kalberer and Firriolo were suspended from their positions and prohibited from taking the examination for wastewater treatment operator certification for two years. Kalberer and Firriolo are now re-employed by DEP at wastewater treatment plants. Based upon an examination he took in August 2001, Mr. Firriolo has achieved a Grade 2A certification.
  7. Collection Facilities North at Tallman Island is a pumping station that conveys sewage to the Ward's Island wastewater treatment plant. Ward's Island is an activated sludge sewage treatment plant. A person working at the Ward's Island sewage treatment plant could obtain sufficient experience to qualify for a Grade I certification.

Discussion

Liability

During the hearing on January 29, 2001, respondent Weil testified that he did not dispute the testimony of the DOI investigators who found that he had signed the applications of the two employees knowing that their statements of experience were overstated. Accordingly, there is no dispute about the essential facts that provide the bases for staff's complaint. What is in dispute is whether 6 NYCRR § 650.10(c) is applicable to these circumstances. This regulation provides for suspension or revocation of a certificate of a wastewater treatment plant operator on the following grounds:

"the operator was negligent, or practiced fraud or deceit, in the performance of his/her duties."

Respondent maintains that while he knowingly signed the fraudulent applications as the supervisor of Kalberer and Firriolo, he did not do so in his role as a certified wastewater treatment operator. I do not agree with this interpretation of this straightforward regulation.

The regulation does not restrict suspension or revocation to those circumstances directly involving the physical operation of a sewage treatment plant. Rather, it speaks to the use of fraud or deceit in the performance of his duties. Respondent signed the applications as part of his supervisory duties as Deputy Chief of the facility in question. DEP requires that in order to hold the title of Deputy Chief, respondent is required to have a minimum 3A Wastewater Treatment Plant Operator Certification by DEC. As the Chief of the Tallman Island facility was often away from this station because he had duties as the associated Ward's Island sewage treatment plant, Mr. Weil was the next in charge. Therefore, I conclude that Mr. Weil committed these acts in the performance of his duties as Deputy Chief at Tallman Island.

The proper functioning of these facilities hinges largely upon the competence of the individuals who are operating them. Thus, the respondent's misconduct in signing these applications that misrepresented the experience of the two subordinate DEP employees meets the regulation's bases for revocation. Had DOI not discovered the fraudulent applications, these individuals may have been certified as wastewater treatment operators prior to obtaining sufficient experience. This in turn could have led to improper operation of a sewage treatment plant resulting in misuse of equipment, discharges to the State's waterways that violated water quality standards, and harmful effects to public health. And, certainly, individuals who would present fraudulent qualifications may also have no qualms in falsifying documents related to the operation of a sewage treatment plant such as laboratory reports or discharge monitoring reports based on sampling of the facility's effluent. See, e.g., Matter of Louis Betke 1997 WL 51827 (Commissioner's Decision, June 12, 1997) (respondent altered discharge monitoring reports resulting in DEC's suspension of wastewater operator's certification). As stated by the administrative law judge in Betke, such fraud undermines DEC's oversight responsibilities. Mr. Weil should have taken every precaution to ensure that these fraudulent applications were not passed on and processed to ensure that only competent individuals would have responsibility for these important facilities.

Relief

The staff requested a penalty of ten thousand dollars at the hearing - $5,000 for each fraudulent action. In addition, staff requested that respondent's certification be revoked and that he not be permitted to reapply for seven years. Staff also asked that it be awarded the costs of bringing this proceeding.

The Department's regulations provide for revocation or suspension in circumstances of fraud or deceit. There is no provision supporting staff's request to prevent the respondent from reapplying for certification. Rather, for the infractions listed, the penalty choices are revocation or suspension. In the case of revocation, if the individual reapplies to the Department, the staff will have to examine the credentials in light of the requirements set forth in 6 NYCRR §§ 650.7, 650.8, and 650.9.

Respondent's actions took place over three years ago and staff has not alleged that Mr. Weil has committed additional actions of this nature. There is no allegation that his actions resulted in environmental harm. Moreover, the subordinates who directly lied on their applications have already been reinstated and permitted to take the wastewater treatment certification examinations. And, like his subordinates, Mr. Weil has been subjected to punishment based upon the actions taken by the District Attorney. Thus, staff's request for a $10,000 penalty is disproportionate to the acts committed by the respondent particularly because there was no environmental harm that resulted from his actions. In addition, the period of seven years that respondent would be prevented from reapplying for his certification is not consistent with the applicable regulations nor with the facts. The regulations specify revocation or suspension but do not provide for a prohibition against re-application. See, 6 NYCRR § 650.10. Also, given DEC's certification of Mr. Firriolo and the re-employment of both Kalberer and Firriolo by DEP, this penalty is not equitable.

However, as stated above, the respondent's actions had the potential for environmental harm and were directly contrary to the State's permitting system that relies upon self-reporting for wastewater plant discharges.

Part 650 does not specifically address the use of a payable penalty for such violations. Section 71-1929 of Article 17 of the Environmental Conservation Law (ECL) provides for a civil penalty of up to twenty-five thousand dollars per day for each violation of titles 1 through 11 and title 19 of Article 17 and the regulations promulgated pursuant to those sections of law. The Department promulgated Part 650 pursuant to ECL § 17-0303 and therefore, violations of these regulations are subject to these penalties.

With respect to DEC staff's request for costs, I can find no authority for such relief in the ECL or implementing regulations. In addition, staff has not provided any bases for calculating costs even if there were such support.

Recommendation and Conclusion

Based upon the conclusions I have made regarding the nature of the violations in terms of an appropriate penalty, I recommend that the respondent be found liable for his violations of 6 NYCRR § 650.10(c) and Mr. Weil's certification be suspended for one year and that he pay a fine of one thousand dollars - $500.00 for each fraudulent act. Staff's request for costs should be denied.

TO: Scott Crisafulli,
Water Compliance Counsel
NYSDEC - Division of Environmental Enforcement
625 Broadway
Albany, New York 12233-5500

Mitchell B. Craner, Esq.
1 Rockefeller Plaza
New York, New York 10020

1 Section 650.4(a) of 6 NYCRR provides that "[a] wastewater treatment plant must at all times be under the responsible supervision of a chief operator or assistant/shift operator certified pursuant to this Part."

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