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Larkin, Timothy - Ruling, April 2, 2003

Ruling, April 2, 2003


In the Matter of the Alleged Violation of Article 17 of the Environmental Conservation Law of the State of New York and Article 12 of the Navigation Law

-- By --

Timothy Larkin



April 2, 2003

Case No. R5-20010215-148


This Ruling denies the motion of the Staff of the Department of Environmental Conservation ("DEC Staff") for an order without hearing and denies the motion of Timothy Larkin ("Respondent") to dismiss the complaint. A hearing in this matter will be scheduled upon receipt of a statement of readiness from DEC Staff.


DEC Staff commenced this action with service of a Notice of Hearing and Complaint on November 3, 2001. The Complaint alleged four causes of action relating to a discharge of petroleum on or about September 28, 2000. The discharge allegedly occurred at a residence of Respondent at 230 Park Street, Tupper Lake, Franklin County. The discharge allegedly flowed down Respondent's driveway, across the street, into a storm drain and then entered Raquette Pond. The four causes of action allege Respondent: 1) discharged petroleum in violation of Environmental Conservation Law ("ECL") .17-0501; 2) discharged petroleum in violation of Navigation Law ("NL") .173; 3) failed to take immediate action to contain the discharge in violation of NL .176; and 4) failed to immediately notify DEC Staff of the discharge in violation of NL .175.

Respondent's counsel, John T. Ellis II, Esq., submitted an Answer dated November 14, 2001 which denied the allegations and raised a number of affirmative defenses, including an allegation that the discharge was attributable to ongoing construction at a Municipal Park and that Respondent was not responsible for the discharge.

By papers dated January 30, 2003, DEC Staff moved for an Order Without Hearing. DEC Staff seeks an Order finding Respondent in violation of ECL .17-0501, NL .173, NL .176, and NL .175. In addition, DEC Staff seeks a payment from Respondent of $3,555.55 to reimburse the Spill Fund and a civil penalty of $53,555.55.

Respondent submitted an Affirmation in Opposition to DEC Staff's motion and cross moved for dismissal of the complaint. This Affirmation was mailed to DEC Staff on March 10, 2003. An unsigned copy was provided to the DEC Office of Hearings and Mediation Services ("OHMS") on March 19, 2003, following a telephone call from the ALJ. An executed Affirmation was received on March 24, 2003.

In the Affirmation, Respondent again denies the allegations in the complaint and asserts that another construction crew working at the park may be responsible for the discharge. Respondent also asserts that two of DEC Staff's most important witnesses have passed away since the action was commenced.

Respondent asserts: 1) that a material fact is in dispute; 2) that the doctrine of laches is applicable and the enforcement matter should be dismissed; 3) that the instant enforcement action suffers from procedural defects; and 4) that the penalty sought is too great. Each of these contentions is discussed below.


DEC Staff's Motion for Order without Hearing

In support of its motion, DEC Staff submitted a cover letter, a Notice of Motion for Order Without Hearing, the motion, an affirmation by DEC Staff counsel with exhibits A-K, and the affidavits of Linda Millious and Charles Valadez. DEC Staff's moving papers are somewhat confusing and contain contradictory facts. Respondent's Affirmation in Opposition and In Support of Cross Motion to Dismiss is also problematic. Respondent's counsel does not assert knowledge of the facts in this case and he has not attached any documentary evidence, affidavits or other evidence to rebut DEC Staff's motion. Accordingly, this Affirmation is insufficient to raise a fact question sufficient to preclude summary judgment (South Bay Center, Inc. v. Butler, Herrick & Marshall, 250 N.Y.S.2d 863, 43 Misc.2d 269).

DEC's enforcement hearing regulations provide that a contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR to any party (6 NYCRR 622.12(d)). CPLR .3212(b) provides that a motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. A motion for summary judgment shall be denied if any party shall show facts sufficient to require a trial on any issue of fact. Summary judgment is a drastic remedy that will not be granted if there is any doubt as to the existence of a triable issue of fact.

DEC Staff's papers include the following problems. DEC Staff's cover letter refers to a motion for default as well as the motion for order without hearing, however attached as Exhibit B is the Respondent's timely answer. There is no motion for default included in the moving papers nor is the default mentioned in DEC Staff attorney's affirmation. Next, as discussed in Ruling 3, below, DEC Staff's motion does not contain the information required by DEC's enforcement hearing regulations. In addition, DEC Staff attorney provides a 75 paragraph Affirmation reciting the alleged facts of the case, however, the attorney does not state that he has personal knowledge of the facts or otherwise state the basis of his knowledge. Therefore, these statements are of no probative value and must be disregarded for purposes of determining whether DEC Staff has demonstrated entitlement to summary judgment. The affirmation also seems to argue in favor of striking the Respondent's affirmative defenses, however, no such motion has been made.

The exhibits also appear to be inconsistent regarding the time of the discharge, the location of the discharge and the amount of the discharge. Regarding the time of the discharge, Exhibit E is a "NYSDEC Spill Report Form" for spill number 0045087 which states a spill occurred at 11:00 a.m. on September 28, 2000 and was reported by the police department at 11:20 a.m that same day. However, Exhibit J, the Supporting Deposition of Craig Trudeau, states that Respondent told him that at 8:00 a.m. on September 28, 2000 that he had spilled off-road diesel at his house from his pickup truck and that the Respondent would notify the appropriate authorities. Mr. Trudeau is now reportedly deceased. Exhibit J seems to be consistent with Exhibit K, the supporting deposition of Armon Hollingsworth, who reports seeing oil on the surface of Raquette Lake at 7:30 a.m. on September 28, 2000. Regarding the location of the discharge, the affidavit of Linda Millious, a DEC Staff Petroleum Spill Specialist who responded to the spill states she tracked the spill back to Respondent's residence. However, the affidavit of Mr. Hollingsworth states he tracked the spill back to Mill Street. Regarding the amount of the spill, Exhibit C is a copy of DEC's "Penalty Matrix for Oil Spill Cases" and Exhibit D is a "Penalty Matrix Score Summary" which scores the spill at 30 points and meriting a penalty of between $50,000 and $150,000. However, as the penalty matrix states, it is only to be used for spills greater than 100 gallons or in cases of negligence or intentional misconduct. However, Exhibit I states the spill was 100 gallons. In any event, it is unclear how much petroleum was discharged and whether the penalty matrix applies in this case.

Given the questions of fact remaining regarding the time of the discharge, the location of the discharge and the amount of the discharge, DEC Staff failed to demonstrate its entitlement to judgment as a matter of law. This conclusion is compelled notwithstanding the circumstance that Respondent's papers do not include any evidence to contradict DEC Staff's asserted facts.

DEC Staff's first cause of action, that Respondent violated .17-0501, requires DEC Staff to prove a discharge to waters of the state. The affidavit of Ms. Millious that she tracked the spill back to the Respondent's home and the deposition of Mr. Trudeau that the Respondent had a spill at his home seem to support the first cause of action. However, the Spill Report Form reports the spill at the Respondent's residence occurred three and one half hours after Mr. Hollingsworth reported seeing the spill on Raquette Lake and that Mr. Hollingsworth tracked the spill to Mill Street. Therefore, DEC Staff has failed to establish entitlement to judgment on the first cause of action.

DEC Staff's second cause of action, that Respondent violated NL .173, requires DEC Staff to prove a discharge of petroleum occurred and that the Respondent does not have a permit. Apart from the factual problems stated in the preceding paragraph, DEC Staff has not shown that Respondent does not have a permit. Therefore, DEC Staff has failed to establish entitlement to judgment on the second cause of action.

DEC Staff's third cause of action, that Respondent violated NL .176, requires DEC Staff to prove that a discharger did not immediately undertake to contain a discharge. DEC Staff offers no proof or statement that the Respondent did or did not take steps to contain the discharge. The affidavit of Ms. Millious is silent as to whether she observed any containment efforts or not. Therefore, DEC Staff has failed to establish entitlement to judgment on the third cause of action.

DEC Staff's fourth cause of action, that the Respondent violated NL .175, requires a discharger to notify DEC Staff within two hours of a discharge. A question of fact remains regarding the time of the spill and DEC Staff has offered no proof that a report was not filed by Respondent. Therefore, DEC Staff has failed to establish entitlement to judgment on the fourth cause of action.

Ruling 1: DEC Staff's motion for order without hearing is denied because DEC Staff failed to establish entitlement to summary judgment as a matter of law and material issues of fact remain in dispute. An enforcement hearing will be scheduled following receipt of a statement of readiness from DEC Staff.

Respondent's Cross Motion for Dismissal: Laches

Respondent cross-moves to dismiss the complaint based upon the delay in bringing this action by DEC Staff. Respondent asserts that two important witnesses to support DEC Staff's assertions have died, Mr. Craig Trudeau and Environmental Conservation Officer Flynn (who conducted the investigation to the spill). Respondent asserts that lack of availability of these witnesses and DEC Staff's delay, without explanation, amounts to neglect to promptly assert a claim for relief. This delay has caused prejudice to Respondent and his ability to defend himself. Accordingly, Respondent seeks a ruling dismissing the complaint and denying the remedy sought on the basis of the doctrine of laches. In support of the cross motion, Respondent cites a number of cases, none of which include a fact pattern in which a government agency seeks a civil penalty for alleged infractions in an administrative forum. Consequently, none of the cases cited by the Respondent are on point.

The common law doctrine of laches protects a party from an unreasonable or negligent delay in asserting a right. It involves two elements: delay and prejudice resulting from the delay. However, it is well established that a claim of laches cannot be asserted against a state agency in an adjudicatory hearing when it acts in its governmental enforcement capacity for the benefit of the public interest (Matter of Cortlandt Nursing Home v. Axelrod, 66 NY2d 169). Section 301 of the State Administrative Procedures Act, discussed in Cortlandt, states that all parties shall be afforded an opportunity for an adjudicatory hearing within a reasonable time.

Ruling 2: Respondent's motion to dismiss is denied.

Respondent's Allegations of Procedural Defects

Respondent also complains that DEC Staff has failed to follow the appropriate legal procedures. Specifically, Respondent contends that the motion for order without hearing did not include a return date and did not set a time or place for oral argument.

DEC's enforcement hearing regulations require that a motion for order without hearing must include a statement that a response must be filed with the Chief ALJ within twenty days after receipt of the motion and that failure to answer constitutes a default (6 NYCRR 622.12(b)). In this case, DEC Staff failed to include such a statement in its motion. So, technically DEC Staff erred. However, the error is merely a procedural one that did not prejudice Respondent. Respondent provided the Affirmation within twenty days to DEC Staff, and upon inquiry from the ALJ, also provided an original to the OHMS. Moreover, no default has been declared. The procedural problem is noted and in the future, DEC Staff should take care to follow relevant provisions of the enforcement hearing regulations.

Ruling 3: Respondent's claim of a procedural defect is correct, however, Respondent suffered no prejudice from DEC Staff's failure to include a statement in its motion that a response must be filed with the Chief ALJ.

Respondent's Comments on DEC Staff's Proposed penalty

Respondent also comments in the Affirmation that the $53,555.55 civil penalty sought by DEC Staff is shocking and disproportionate to the alleged offense. It is premature at this time to consider the appropriate penalty, as Respondent's liability for the alleged discharge has not been determined. At the hearing, both parties may make arguments and introduce evidence regarding the appropriate penalty, should liability be found.

Ruling 4: Respondent's comments on the DEC Staff's proposed penalty will be considered at the hearing.

P. Nicholas Garlick
Administrative Law Judge
Albany, New York
April 2, 2003


Christopher LaCombe, Esq.
Regional Attorney
NYSDEC Region 5
P.O. Box 296
Ray Brook, NY 12977

John T. Ellis II, Esq.
44 Park Street
Tupper Lake, NY 12986-1617

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