Opinion
02759-19
08-22-2019
In the Matter of the Application of Edward GALLAGHER, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
Pro Se Petitioner: EDWARD GALLAGHER, redacted, Deansboro, New York 13328 For Respondent: HON. LETITA JAMES, Attorney General for the State of New York, (MEREDITH G. LEE-CLARK, ESQ.), Assistant Attorney General
Pro Se Petitioner: EDWARD GALLAGHER, redacted, Deansboro, New York 13328
For Respondent: HON. LETITA JAMES, Attorney General for the State of New York, (MEREDITH G. LEE-CLARK, ESQ.), Assistant Attorney General
Raymond J. Elliott III, J.
In June 2015, Respondent issued 130 notices of violations (hereinafter NOV) to Concentrated Animal Feeding Operations (hereinafter CAFOs) for failure to complete all required Best Management Practices (hereinafter BMPs) as required in their site-specific Comprehensive Nutrient Management Plan (hereinafter CNMP) to contain all generated waste water and contaminated runoff. Under the relevant permit, compliance with BMPs was required to be completed by June 30, 2009. In December 2015, Petitioner, owner of a medium CAFO (a large dairy farm), responded to the NOV with a schedule of compliance for implementation of a silage leachate collection system and a vegetated treatment area. The schedule indicated that the vegetated treatment area would be completed in 2016 and the silage leachate collection system would be completed "in 2016 if possible or 2017 at the latest." In February 2016, Respondent sent a proposed consent order to Petitioner; however, Petitioner refused the mail. In March, April, and September 2016, Respondent and Petitioner discussed resolution of the matter but were unable to agree to terms.
In July 2016, Respondent issued a complaint against Petitioner with a notice of hearing. In a letter dated August 15, 2016, Petitioner contended that expectation of compliance was "naïve" and the farm had undergone "dramatic growth in the last twenty (20) years, requiring constant updating and expansion of facilities which will lead to times of incompliance." Further, Petitioner stated divorce litigation prevented him from accessing bank financing from August 2007, through February 2012. Additionally, he asserted that there had been no complaints or evidence of pollution nor on-site inspections.
On August 15, 2017, Respondent served Petitioner with a notice of motion (dated January 2017) that sought an Order without Hearing finding Petitioner in violation of Article 17 of the Environmental Conservation Law as well as other related regulations and sought a civil penalty of $48,000, and an order directing implementation of the BMPs. Petitioner answered the complaint admitting every allegation except asserting that these facts did not constitute a violation. Further, Petitioner contended that all violations were remedied by July 2017. Petitioner asserted that due to declining dairy prices and the inability to access funding, he was unable to complete the required pollution control measures despite, "to the best of his ability, continually and faithfully work[ing] toward [Respondent's] goal."
By a ruling of an administrative law judge (hereinafter ALJ) without a hearing, Petitioner was found in violation of ECL 17-0803 and 6 NYCRR 750-2.1 (e). In relevant part, the ALJ noted that "[Petitioner] argues that due to financial hardship, he was prevented from constructing and implementing the CNMP practices until recently. Respondent argues that due to ongoing litigation, banking financing was unavailable to him from 2007 to 2012. Once financing was available, [Petitioner] argues he prioritized the farm's needs and relocated the manure storage in 2012 and 2013 and relocated the feed storage in 2013 and 2014. Feed storage expansion continued in 2015, and according to [Petitioner], in 2016, [Petitioner] began construction of the [BMPs] and completed the [BMPs] in 2017. [Petitioner] states that, as of July 20, 2017, he is in compliance with his CNMP. [Petitioner] argues that he spent hundreds of thousands of dollars bringing the farm into compliance and that the penalty requested by staff appears to be more vindictive than fair. Although inability to pay, or in this instance inability to fund compliance, is not an affirmative defense for noncompliance, it may be considered in determining an appropriate penalty." The ALJ, therefore, ordered a hearing solely on the question of the appropriateness of the penalty.
After a hearing where both parties presented multiple witnesses and several exhibits, the ALJ issued a detailed hearing report accepting the base penalty calculation of $6,000 and rejecting Respondent's request for multiplies that would have raised the penalty to $48,000. The ALJ considered the significant investment made by Petitioner, three years of low milk prices and their impact on Petitioner's finances, and weather events that delayed implementation." Due to the totality of the circumstances, [the ALJ] recommend[ed] reducing the base penalty to $5,000." By Order dated January 31, 2019, Commissioner of Respondent accepted the recommendation of the ALJ that reduced the penalty to the base of $6,000; however, he rejected reducing the penalty below that amount as the considerations identified by the ALJ supported why the multipliers should not be used in the calculation of the penalty above the base amount but did not justify a reduction below that amount.
Petitioner commenced this proceeding by filing a Petitioner asserting that Respondent's determination was arbitrary and capricious and has no foundation in law or reason. Respondent joined issue requesting this Court confirm the Commissioner's order and dismiss the Petition.
Petitioner does not contest the lawfulness of the underlying regulation or the underlying facts that establish his violation, but solely asserts that under the circumstances where his personal economic situation and then the broader industry financial situation made compliance difficult, it would be unfair to impose the established penalty.
The reduction of a penalty by a trial court is improper if the penalty does not shock the conscience (see generally Matter of Kelly v. Safir , 96 NY2d 32, 38 [2001] ; Matter of RGLL, Inc. v. Grannis, 90 AD3d 1221, 1222 [3d Dept 2011] ). Good faith attempts to comply and the lack of an economic benefit are not enough to render a penalty arbitrary or capricious when there is a repeated failure to comply with DEC mandates in a timely fashion (see Matter of Howard v. Cahill , 290 AD2d 712, 716 [3d Dept 2002] ). Furthermore, a lower settlement offer is not a basis on which to reduce a penalty (see Matter of Longwood Assoc., LLC v. New York State Dept. of Envtl. Conservation , 71 AD3d 534, 535 [1st Dept 2010] ).
This Court recognizes the difficulties that face modern dairy farmers including dairy pricing. However, "[c]ourts should be wary of substituting their economic and business judgment for that of legislative bodies, and should avoid the temptation, however attractive, to sit as a ‘super-legislature to weigh the wisdom of legislation’ " ( Kaufman v. O'Hagan , 64 AD2d 46, 59 [1st Dept 1978], affd 46 NY2d 808 [1978], quoting Day-Brite Light. v. Missouri , 342 US 421, 423 [1952] ). Petitioner contends that he made business decisions that delayed compliance and cites his significant expenditures and the difficult economic situation as rendering the imposition of a penalty unjust. Economic difficulty is not an affirmative defense to delayed compliance with a lawful regulation and "[t]he mere fact that the law cannot be enforced without causing expense to the citizen who comes within its provisions, furnishes no constitutional obstacle to such enforcement" ( Kaufman v. O'Hagan , 64 AD2d at 59 [citation omitted] ).
As Respondent properly considered the record, there is no contention that Petitioner did not commit the violations for which it is now being fined, and the fine does not shock the conscience, the petition must be dismissed (see Matter of RGLL, Inc. v. Grannis , 90 AD3d at 1222 ; Matter of Longwood Assoc., LLC v. New York State Dept. of Envtl. Conservation, 71 AD3d at 535 ; Matter of Howard v. Cahill , 290 AD2d at 716 ).
Accordingly, the petition is hereby denied and dismissed .
This shall constitute the Decision, Order and Judgment of the Court. All papers, including this Decision, Order and Judgment are being returned to the attorney for the Respondent. All original supporting documentation is being filed with the Albany County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.
SO ORDERED AND ADJUDGED
Papers Considered:
1. Petitioner's Verified Petition sworn May 2, 2019; Annexed Exhibits A-B.
2. Respondent's Verified Answer sworn July 24, 2019; Annexed Three Volume Administrative Record; Memorandum of Law in Opposition to the Petition.