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Office of Administrative Trials and Hearings/Environmental Control Board

Proposed Rules: Open to Comments

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Agency:
Comment By: 
Friday, September 12, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

The Department of Environmental Protection (DEP) has requested that the Environmental Control Board (ECB) amend the Air Asbestos and Air Code Penalty Schedules. Some of these proposed changes have been requested to address evolving industry practices that raise safety concerns, while other changes are being introduced in response to revisions of the Rules of City of New York (RCNY).  Cure periods are not included in the proposed provisions, because the governing statutes mandate the imposition of minimum penalties.

 

Requested Changes to the Air Asbestos Penalty Schedule

 

Ad. Code § 24-1002(c)

On February 4, 2014, Mayor de Blasio signed Local Law 3 of 2014, which amends Title 24 of the Administrative Code by adding a new Chapter 10. The amendment requires the DEP to establish a program to provide for the registration of practicing Master Environmental Hazard Remediation Technicians. Since the registration program will be administered by the Asbestos Control Program, ECB proposes to add the following penalty for this provision to the Air Asbestos Penalty Schedule.

 

Section 24-1003 specifies a minimum penalty of $1000 for any violation of Chapter 10. No maximum penalty is set forth. A review of section 24-1002(c) makes it unlawful to identify oneself as a Master Hazard Remediation Technician without being registered by the DEP.

 

15 RCNY 1-91(n)

ECB is also adding a penalty to the Air Asbestos Penalty Schedule for section 15 RCNY 1-91(n), a provision of the subchapter on engineering controls. This section requires contractors to carefully install ducting for negative pressure units because improper installation threatens the release of asbestos fibers into uncontaminated building areas.

 

 

Requested Changes to the Air Code Penalty Schedule

15 RCNY 12-18(a), 12-18(b), 12-18(c), and 12-18(d)

15 RCNY 12-18 provides for the posting of notices by dry cleaning facilities. The notices address the use of chemicals in the dry cleaning process. 

 

Penalties for the section are governed by the Air Code Table of Civil Penalties. This table is found at 24-178(b)(5). The Air Code Penalty Schedule currently provides a penalty for failure to post a required notice in an easily visible location in dry cleaning facilities. This notice is required by New York State. ECB proposes to retain the existing penalty for 12-18(a) with an amended description.

 

Additionally, ECB proposes to add penalties for subdivisions (b), (c) and (d). Section 12-18(b) requires dry cleaners using perc (also known as PCE and perchloroethylene) to post a notice informing customers that the chemical is used in its dry cleaning process. The notice must include a web address where the Material Safety Data Sheet can be viewed. The sign required by 12-18(b) differs from the sign required by 12-18(a); 12-18(a) complies with New York State law and thus its penalty is higher than the penalties for 12-18(b), (c) and (d). Section 12-18(c) requires dry cleaners using alternatives to perc, known as non-perchloroethlene (non-perc) to post a sign identifying the chemical being used along with a web address where the Material Safety Data Sheet for the chemical can be viewed.  Section 12-18(d) requires dry cleaners using perc and non-perc to post notices as required by subdivisions (a), (b), and (c).

 

15 RCNY 2-09 and 15 RCNY 40-02(b)

15 RCNY Chapter 2 sets forth performance standards and engineering criteria for boilers and water heaters. Specifically, Section 2-09 states that boilers requiring a certificate of operation undergo an annual tune-up and combustion efficiency test. These results must be kept and submitted to DEP upon request.

 

15 RCNY Chapter 40 states that emergency generators (defined in 15 RCNY 40-01) must be registered and pass a smoke test. Specifically, section 40-02(b) requires the owner or operator of an emergency generator to maintain records documenting the generator’s hours of operation and provide these records to the DEP upon request.

 

Currently, there are no existing penalties for 15 RCNY 2-09 and 15 RCNY 40-02(b). Since these sections are most similar to the recordkeeping provisions of 24-177(b) and (c), it is proposed that the penalties for 24-177 are adopted for these two new charges.

 

Ad. Code § 24-168.1

Paragraph (1) of subdivision (b) of section 24-168.1 of the Air Pollution Control Code prohibits the use or delivery of heating oil that contains less than two per cent biodiesel by volume. Local Law 43 of 2010 added two penalties related to these provisions to the Air Code Table of Civil Penalties found in Administrative Code section 24-178(b)(5). The first provision states that the minimum and maximum penalties for a violation of 24-168.1 of using noncompliant heating oil are “as per schedule E.” The second provision sets a minimum penalty of $1000 and a maximum of $10,000 for the delivery of noncompliant heating oil, in addition to “twice the amount of money saved for failure to comply.”

 

 

Subject: 

ECB Propoed Rule concerning amendments to its Asbestos and Air Code Penalty Schedules.

Location: 
NYC Environmental Control Board
66 John Street 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan-Marino at (212) 436-0708 and Jim Macron at (212) 436-0602.

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

On October 2, 2013, Mayor Bloomberg signed into law Intro 1107-A, which became Local Law 77 of 2013 (Local Law 77), in relation to the collection of food waste. Specifically, this law codified the Department of Sanitation’s (DSNY) organic waste collection pilot program and made several technical amendments to section16-308 of the New York City Administrative Code. 

The ECB held a public hearing on June 11, 2014 regarding amendments to its Sanitation Penalty Schedule found in Section 3-122 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York relating to organic waste recycling.   Neither written comments nor oral testimony were presented at the June 11, 2014 public hearing concerning the proposed rule regarding amendments to its Sanitation Penalty Schedule.

Several subdivisions of section 16-308 that DSNY currently enforces were relettered.  These sections relate to a city yard waste collection program. The rule amends ECB’s Sanitation Penalty Schedule to reflect the relettering of subdivisions of section 16-308 by Local Law 77. The penalties for these violations remain unchanged.

The former subdivision (e) of section 16-308 of the Administrative Code establishes requirements related to the manner in which yard waste should be set out for collection by DSNY. Local Law 77 relettered subdivision (e) as subdivision (f).

The former subdivision (f) of section 16-308 of the Administrative Code, establishes requirements applicable to business that generate yard waste. Local Law 77 relettered subdivision (f) as subdivision (g).

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 08/10/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

 

On August 12, 2013, Mayor Bloomberg signed into law Intro. No. 893-A, also referred to as Local Law No. 57 of 2013. This law created a new chapter in Title 16 of the Administrative Code of the City of New York, Chapter 4-D, which establishes several new violations related to the bulk collection of recyclable containers using motor vehicles.

The ECB held a public hearing on April 22, 2014 regarding amendments to its Sanitation Penalty Schedule found in Section 3-122 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. A representative from the NYC Department of Health and Mental Hygiene (“DOHMH”) attended the April 22, 2014 public hearing. Neither written comments nor oral testimony were presented at the April 22, 2014 public hearing concerning the Proposed Rule regarding amendments to ECB’s Sanitation Penalty Schedule.

 

The law prohibits the use of a motor vehicle to accept, receive, or collect recyclable containers in bulk from more than one person on streets and in public areas, except for by authorized city employees or agents or private carters licensed or registered pursuant to section 16-505 of the Administrative Code. It also restricts the transfer of recyclable containers in bulk from one vehicle to another on or in any street where one or more of the vehicles involved in the transfer has a commercial license plate. The use of city streets for this activity creates significant health and safety risks for pedestrians and drivers.Any owner of a motor vehicle used in violation of this law is also liable unless he or she can show that the vehicle was used without his or her knowledge. 

On private property, if individuals wish to accept, receive, or otherwise collect recyclable containers in bulk from more than two persons, or to transfer recyclable containers in bulk from one motor vehicle to another, they must register with the Department of Sanitation. They must also ensure that they do not create nuisances or hazardous conditions by maintaining clean sidewalks and roadways around their sites. They also must satisfy annual reporting requirements, as specified in Administrative Code 16-473.

Pursuant to Sections 1048 and 1049-a of the New York City Charter and Chapter 3 of Title 48 of the RCNY, the New York City Environmental Control Board (ECB) hears and decides notices of violation issued for violations of the Administrative Code requirements pertaining to the acceptance of recyclable containers in bulk using motor vehicles. These requirements can be found in Chapter 4-D of Title 16 of the Administrative Code, enacted by Local Law 57 of 2013. The rule sets forth the penalties for these violations, which can result in fines of $250 to $1000 and/or an owner’s vehicle being impounded.

 

ECB’s authority for these rules is found in Chapter 4-D of Title 16 of the Administrative Code of the City of New York and Sections 1043(a) and 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 07/13/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

ECB has amended its penalty schedule to allow for enforcement of new laws and rules that set limits on volatile organic compound (VOC) emissions in carpets and carpet cushions. Local Law 2 of 2012 added a new Chapter 13 to Title 17 of the Administrative Code, effective July 1, 2013.  After the law was passed, DOHMH enacted rules implementing this new chapter. Those rules became effective on August 23, 2013.

 

The ECB held a public hearing on April 22, 2014 regarding amendments to its Health Code and Miscellaneous Food Vendor Violations Penalty Schedule found in Section 3-110 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. A representative from the NYC Department of Health and Mental Hygiene (“DOHMH”) attended the April 22, 2014 public hearing. Neither written comments nor oral testimony were presented at the April 22, 2014 public hearing concerning the Proposed Rule regarding amendments to ECB’s  Health Code and Miscellaneous Food Vendor Violations Penalty Schedule.

 

VOCs are common chemical contaminants that easily evaporate into the air. Some VOCs may have short- or long-term adverse health effects. U.S. Environmental Protection Agency studies have consistently found that VOC levels can be two to five times higher indoors than outdoors. Their presence can be noticed as an odor from new building materials including carpet, carpet backing, carpet cushion and adhesives. Carpet products that limit VOC emissions protect public health by improving the indoor air quality in homes and workplaces.

 

The rule sets seven penalties, ranging from $150 to $500, related to VOC emissions:

1.      Non-compliant carpet or carpet cushion sold, offered for sale or installed, first violation.

2.      Non-compliant carpet or carpet cushion sold, offered for sale or installed, second violation.

3.      Required notice not posted in a conspicuous location, or not provided in written or electronic form.

4.      Required documentation not provided within three business days of request.

5.      Receipt not provided to consumer.

6.      Posted sign does not meet required specifications.

7.      Notice text does not conform to wording requirement.

 

The penalties are within the limits of the penalty amounts authorized in Administrative Code section 17-1409. For violations issued under section 17-1402, a second and subsequent violation is a violation by the same respondent of the same section of law.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 07/13/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

On December 20, 2013, Mayor Bloomberg signed Intro. 1213-A of 2013, which became Local Law 153 of 2013 (LL 153/13). This law amended the Administrative Code (Ad. Code) to give respondents receiving a first violation for certain provisions the opportunity to avoid paying a civil penalty if they cure the violations within a specific time period. The proposed rule has added a $0 mitigated penalty to three ECB penalty schedules upon a showing that the underlying violations have been cured.

 

The ECB held a public hearing on May 5, 2014 regarding amendments to its Sanitation, Air, and Noise Codes Penalty Schedules.  The Sanitation Penalty Schedule is found in Section 3-122 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York; the Air Code Penalty Schedule is found in Section 3-102 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York; and the Noise Code Penalty Schedule is found in Section 3-115 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. Neither written comments nor oral testimony were presented at the May 5, 2014 public hearing concerning the Proposed Rule regarding amendments to ECB’s Sanitation, Air, and Noise Codes Penalty Schedules.

 

Ad. Code § 16-116(d)(i)

Paragraph (i) of subdivision d of section 16-116 of the Administrative Code provides the penalty for violations of subdivisions a and b of this section. LL 153/13 amended paragraph (i) of subdivision d of section 16-116 to provide for a cure period for a respondent who received a notice of violation (“NOV”) of subdivision b of section 16-116 for the first time. A respondent may receive a mitigated penalty of $0 if he or she provides proof to ECB that the violation was corrected before the date of the initial hearing. Such proof may include a copy of the actual decal, written receipts or an agreement from the private carter. 

 

Ad. Code §§ 24-165 and 24-166 (Air Code)

Section 24-165 sets forth requirements for air contaminant detectors. Section 24-166 sets forth requirements for combustion shutoffs, which are installed to automatically shut down oil-burning equipment when an emission which exceeds the prescribed opacity or density is detected. LL 153/13 added a new subdivision (g) to section 24-165 and a new subdivision (c) to section 24-166. The new subdivisions are identical and provide that the DEP Commissioner can recommend the imposition of a zero penalty to the Board for a first offense of section 24-165 or 24-166 if, within 45 days of the return date indicated on the notice of violation (NOV), respondent admits the violation and submits evidence satisfactory to DEP that work has been performed to permanently correct the violation.

 

 

Ad. Code § 24-227 (Noise Code)

This section prohibits excessive noise from circulation devices. LL 153/13 added a new subdivision (d) to section 24-227. It provides that the DEP Commissioner can recommend to ECB that no civil penalty be imposed for a first violation of this section if, within 45 days of the return date on the NOV, the respondent admits liability for the violation and files a certification with DEP that improvements have been made to the establishment and that measurements substantiate that the establishment is in full compliance with the sound levels described in section 24-227. The violation may nevertheless serve as a basis for imposing penalties for subsequent violations of section 24-227.

 

ECB has included these changes and accompanying head notes in its penalty schedule to comply with the requirements of the new law.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Effective Date: 
Wed, 07/02/2014

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, June 11, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

On October 2, 2013, Mayor Bloomberg signed into law Intro 1107-A, which became Local Law 77 of 2013 (Local Law 77), in relation to the collection of food waste. Specifically, this law codified the Department of Sanitation’s (DSNY) organic waste collection pilot program and made several technical amendments to section16-308 of the New York City Administrative Code. 

Several subdivisions of section 16-308 that DSNY currently enforces were relettered.  These sections relate to a city yard waste collection program. This proposed rule amends ECB’s Sanitation Penalty Schedule to reflect the relettering of subdivisions of section 16-308 by Local Law 77. The penalties for these violations remain unchanged.

The former subdivision (e) of section 16-308 of the Administrative Code establishes requirements related to the manner in which yard waste should be set out for collection by DSNY. Local Law 77 relettered subdivision (e) as subdivision (f).

The former subdivision (f) of section 16-308 of the Administrative Code, establishes requirements applicable to business that generate yard waste. Local Law 77 relettered subdivision (f) as subdivision (g).

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Subject: 

ECB Proposed Rule regarding amendments to its Sanitation Penalty Schedule concerning organic waste recycling. The proposed rule amends ECB's sanitation Penalty Schedule to reflect the relettering of certain subdivisions of section 16-308 of the New York City Administrative Code by Local Law 77 of 2013.

Location: 
NYC Environmental Control Board
66 John Street 10th Floor Conference Room
New York , NY 10038
Contact: 

James Macron at (212) 436-0594 and Elizabeth Nolan at (212) 436-0592

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, May 5, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

On December 20, 2013, Mayor Bloomberg signed Intro. 1213-A of 2013,which became Local Law 153 of 2013 (LL 153/13). This law amends the Administrative Code (Ad. Code) to give respondents receiving a first violation for certain provisions the opportunity to avoid paying a civil penalty if they cure the violations within a specific time period. This proposed rule adds a $0 mitigated penalty to three ECB penalty schedules upon a showing that the underlying violations have been cured.

 

Ad. Code § 16-116(d)(i)

Paragraph (i) of subdivision d of section 16-116 of the Administrative Code provides the penalty for violations of subdivisions a and b of this section. LL 153/13 amends paragraph (i) of subdivision d of section 16-116 to provide for a cure period for a respondent who received a notice of violation (“NOV”) of subdivision b of section 16-116 for the first time. A respondent may receive a mitigated penalty of $0 if he or she provides proof to ECB that the violation was corrected before the date of the initial hearing. Such proof may include a copy of the actual decal, written receipts or an agreement from the private carter. 

 

Ad. Code §§ 24-165 and 24-166 (Air Code)

Section 24-165 sets forth requirements for air contaminant detectors. Section 24-166 sets forth requirements for combustion shutoffs, which are installed to automatically shut down oil-burning equipment when an emission which exceeds the prescribed opacity or density is detected. LL 153/13 adds a new subdivision (g) to section 24-165 and a new subdivision (c) to section 24-166. The new subdivisions are identical and provide that the DEP Commissioner can recommend the imposition of a zero penalty to the Board for a first offense of section 24-165 or 24-166 if, within 45 days of the return date indicated on the notice of violation (NOV), respondent admits the violation and submits evidence satisfactory to DEP that work has been performed to permanently correct the violation.

 

 

Ad. Code § 24-227 (Noise Code)

This section prohibits excessive noise from circulation devices. LL 153/13 adds a new subdivision (d) to section 24-227. It provides that the DEP Commissioner can recommend to ECB that no civil penalty be imposed for a first violation of this section if, within 45 days of the return date on the NOV, the respondent admits liability for the violation and files a certification with DEP that improvements have been made to the establishment and that measurements substantiate that the establishment is in full compliance with the sound levels described in section 24-227. The violation may nevertheless serve as a basis for imposing penalties for subsequent violations of section 24-227.

 

ECB is including these changes and accompanying head notes in its penalty schedule to comply with the requirements of the new law.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

 

Subject: 

Proposed Rule regarding Cure Period for Certain Violations concerning ECB's Sanitation, Air Code and Noise Code Penalty Schedules.

Location: 
Environmental Control Board
66 John Street 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0592 and Jim Macron at (212) 436-0594

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, April 22, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

 

On August 12, 2013, Mayor Bloomberg signed into law Intro. No. 893-A, also referred to as Local Law No. 57 of 2013. This law created a new chapter in Title 16 of the Administrative Code of the City of New York, Chapter 4-D, which establishes several new violations related to the bulk collection of recyclable containers using motor vehicles.

The law prohibits the use of a motor vehicle to accept, receive, or collect recyclable containers in bulk from more than one person on streets and in public areas, except for by authorized city employees or agents or private carters licensed or registered pursuant to section 16-505 of the Administrative Code. It also restricts the transfer of recyclable containers in bulk from one vehicle to another on or in any street where one or more of the vehicles involved in the transfer has a commercial license plate. The use of city streets for this activity creates significant health and safety risks for pedestrians and drivers. Any owner of a motor vehicle used in violation of this law is also liable unless he or she can show that the vehicle was used without his or her knowledge. 

On private property, if individuals wish to accept, receive, or otherwise collect recyclable containers in bulk from more than two persons, or to transfer recyclable containers in bulk from one motor vehicle to another, they must register with the Department of Sanitation. They must also ensure that they do not create nuisances or hazardous conditions by maintaining clean sidewalks and roadways around their sites. They also must satisfy annual reporting requirements, as specified in Administrative Code 16-473.

Pursuant to Sections 1048 and 1049-a of the New York City Charter and Chapter 3 of Title 48 of the RCNY, the New York City Environmental Control Board (ECB) hears and decides notices of violation issued for violations of the Administrative Code requirements pertaining to the acceptance of recyclable containers in bulk using motor vehicles. These requirements can be found in Chapter 4-D of Title 16 of the Administrative Code, enacted by Local Law 57 of 2013. The proposed rule sets forth the penalties for these violations, which can result in fines of $250 to $1000 and/or an owner’s vehicle being impounded.

 

ECB’s authority for these rules is found in Chapter 4-D of Title 16 of the Administrative Code of the City of New York and Sections 1043(a) and 1049-a of the New York City Charter.

 

 

 

Subject: 

Proposed Rule concerning the amendment of ECB's Sanitation Penalty Schedule pertaining to the bulk collection of recyclable containers.

Location: 
Environmental Control Board
66 John Street 10th Floor Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0592 or James Macron at (212) 436-0594

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, April 22, 2014
Proposed Rules Content: 

Statement of Basis and Purpose

 

ECB is amending its penalty schedule to allow for enforcement of new laws and rules that set limits on volatile organic compound (VOC) emissions in carpets and carpet cushions. Local Law 2 of 2012 added a new Chapter 13 to Title 17 of the Administrative Code, effective July 1, 2013.  After the law was passed, DOHMH enacted rules implementing this new chapter. Those rules became effective on August 23, 2013.

 

VOCs are common chemical contaminants that easily evaporate into the air. Some VOCs may have short- or long-term adverse health effects. U.S. Environmental Protection Agency studies have consistently found that VOC levels can be two to five times higher indoors than outdoors. Their presence can be noticed as an odor from new building materials including carpet, carpet backing, carpet cushion and adhesives. Carpet products that limit VOC emissions protect public health by improving the indoor air quality in homes and workplaces.

 

The proposed rule sets seven new penalties, ranging from $150 to $500, related to VOC emissions:

1.      Non-compliant carpet or carpet cushion sold, offered for sale or installed, first violation.

2.      Non-compliant carpet or carpet cushion sold, offered for sale or installed, second violation.

3.      Required notice not posted in a conspicuous location, or not provided in written or electronic form.

4.      Required documentation not provided within three business days of request.

5.      Receipt not provided to consumer.

6.      Posted sign does not meet required specifications.

7.      Notice text does not conform to wording requirement.

 

The proposed penalties are within the limits of the penalty amounts authorized in Administrative Code section 17-1409. For violations issued under section 17-1402, a second and subsequent violation is a violation by the same respondent of the same section of law.

 

ECB’s authority for these rules is also found in section 1049-a of the New York City Charter.

 

 

Subject: 

Proposed Rule concerning the amendment to ECB's Health Code and Miscellaneous Food Vendor Violations Penalty Schedule regarding carpet emissions.

Location: 
Environmental Control Board
66 John Street 10th Floor, Conference Room
New York, NY 10038
Contact: 

Elizabeth Nolan at (212) 436-0592 or James Macron at (212) 436-0594

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Final Rule

 

The Environmental Control Board (ECB) held a public hearing on January 8, 2014, regarding amendments to section 48 RCNY 3-31(c) of its rules of procedure.  The rule clarifies that a single attempt at service of a notice of violation may be sufficient to constitute “a reasonable attempt” under Section 1049-a(d)(2)(b) of the New York City Charter (“Charter”).  Section 1049-a does not contain a definition of “reasonable attempt,” but ECB decisions have long held that a single attempt is sufficient.  However, recent court decisions have created some confusion as to the correct standard.  Therefore, ECB has codified its decisions via rulemaking. Four (4) members of the public attended the January 8, 2014, public hearing and two (2) members of the public testified on the proposed rule. Two written comments were received. The Board has considered the testimony from the 2 members of the public and the 2 written comments.
 
The Current Rule
 
ECB’s rules of procedure, as found in 48 RCNY 3-31(c), regulate the service of certain notices of violation (NOV).  A person accused of violating a provision of the Charter or the City’s Administrative Code under ECB’s jurisdiction is known as a respondent.  
 
Under Charter Section 1049-a(d)(2)(a), an agency typically must serve a NOV to a respondent in the same manner as is prescribed by article three of the Civil Practice Law and Rules (CPLR) or article three of the Business Corporation Law (BCL).  However, the Charter also includes a number of exceptions.  Section 1049-a(d)(2)(a)(i) allows for service of a NOV by delivering the notice to a person employed by the respondent on or in connection with the premises where the violation occurred.  Section 1049-a(d)(2)(a)(ii) allows for service of a NOV issued by the Department of Sanitation, the Department of Buildings, or the Fire Department by affixing such notice in a conspicuous place to the premises where the violation occurred.
 
Charter Section 1049-a(d)(2)(b) provides that these exceptions only apply after “a reasonable attempt” has been made to serve the NOV in a manner permitted by article three of the CPLR or article three of the BCL.  The Charter does not contain a definition of “reasonable attempt,” but ECB has long interpreted the language so that a single attempt could satisfy the requirement.  ECB’s interpretation is based on the plain language of section 1049-a(d)(2)(b), which requires “a reasonable attempt” (emphasis added), and also the section’s legislative history.  The State Legislature added section 1049-a(d)(2)(b) to the Charter with the intent that the new language would “eliminate the time-consuming, costly and often unrewarding process now entailed in identifying and locating the person responsible for the violation.”  Governor’s Memorandum on Approval, Bill Jacket, L. 1979, ch. 623.  The rule ensures that the legislative intent behind the creation of section 1049-a(d)(2)(b) is codified in ECB’s rules of procedure. 
 

ECB’s authority to implement this rule is found in Section 1049-a of the New York City Charter.

 

 

Effective Date: 
Sun, 03/16/2014

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