Rule status: Adopted
Effective date: April 26, 2023
Proposed Rule Full Text
Adopted Rule Full Text
Adopted rule summary:
The Department of Environmental Protection is promulgating rules changing and clarifying the criteria for second and third offenses of certain violations, including vehicular idling violations, and providing that such violations can be admitted without going through the stipulation process.
Comments are now closed.
Online comments: 5
CHRISTOPHER GAWARECKI - HUB TRUCK RENTAL CORP.
There needs to be a transfer of liability option as well as an exemption for certified clean idle vehicles.Comment attachment
I support the change but additional work is required in order to improve the overall submission process and processing time improvement. As a resident, I attempted two submit two idling complaints. The amount of paperwork and red tape to accomplish that was unrealistic for such a simple desk. In addition, the reporting site was broken and I received no response from support team at NYCIdling@dep.nyc.gov after multiple attempts.
It’s as if the complaint submission process was clearly designed not to use it!
I am generally supportive of this rule change, with caveats.
Repeat offenses should be calculated at the respondent-level, not at the level of individual vehicles. It should not be necessary for OATH to separately warn a company not to idle each and every vehicle in that company’s fleet. One or two warnings should suffice to put the company on notice that higher penalties will be applicable going forward.
Additionally, the penalties at each level should be adjusted upward, in view of the urgency of the climate and health crisis, as well as in view of the fines having effectively been decreased over time due to inflation. The DEP has been repeatedly requested to increase these fines, including on several occasions unanimously by Manhattan Community Board 4, but has so far failed to do so.
I disagree with the extension of time for subsequent violations, because DEP’s justification is illogical and does not fix the alleged issue (which is a true prejudice against Respondents). Rather DEP’s proposal creates further exposure for the respondents without addressing the actual issue.
The actual issue is the prejudice against respondents who commit a subsequent violation before even receiving notice of the initial violation due to DEP’s admitted failure to issue violations sometimes until more than a year after the date of occurrence (“DOO”). For example, DOO #1 occurs January 1. DOO #2 occurs June 1. However, due to procedural backlog, DEP issues the first summons for DOO #1 on August 1 and then a “subsequent violation” summons for DOO#2 on December 1. However, Respondent had no knowledge of the initial alleged violation at the time of the subsequent violation. What justifies a stepped-up penalty in that scenario without Respondent being notified of the first violation? This is especially true since most Respondents are companies with various employees driving the vehicle. Without the initial summons, how can it be put on notice qualifying it for a higher penalty? These are the issues that should be addressed by DEP. Instead, DEP’s proposed solution is to ignore the true issue and to simply extend the subsequent violation timeline another year. DEP’s proposal does not rectify any issue it cites (which is of its own making); rather it is using this as a false justification to extend the subsequent violation deadline.
I agree with the proposed change to remove stipulations for the same reasons as stated by the DEP. This will enable parties to more efficiently remove non-contested violations from the docket.
I am an attorney who has worked for many years with the trucking industry. I have represented and advised many firms, large and small in connection with summonses issued under Administrative Code §24-163. DEP has not demonstrated that the proposed changes are “necessary to effectuate the purposes..” of the Air Pollution Control Code, as required by Administrative Code §24-105. In fact, as discussed, below, the proposed changes will likely do nothing to alter behavior concerning air pollution and will unfairly burden an industry that has made substantial investments in clean emissions technology.Comment attachment
While I am glad to see a provision to require that each summons issued provide an opportunity to stipulate to the fine, the language as written does not go far enough. It should clearly indicate what the specific fine would be and, in fact, settlement might get a higher acceptance rate if the settlement fine was lower than the base fine at a hearing. People generally react more favorably to a savings .
But tweaking the stipulated settlement issue ignores the broader problem. The current administration of this program is unwieldy, violative of due process, and unnecessarily traps respondents in higher fine situations. Accordingly, neither the rates for repeat offenders nor the time periods for when something is deemed a repeat should be increased unless and until the administration of this program is made more fair.
Specifically, service of process and identification of the responsible respondents is, to put it mildly, slipshod. I have seen respondents identified simply by a logo on the vehicle or a DOT number. Each vehicle has a license plate and DEP has its own law enforcement unit. There’s no reason why the DEP should permit a summons to go out to a company because the operator of a vehicle has a logo that says we use this company’s product.
Then, a significant number of summonses are “served” via dropping them off at the NYS Secretary of State. While such service is permitted under City and State Rules, that should only be used in a situation of last resort, where DEP cannot identify the registered owner of the vehicle involved. Again, DEP has its own internal law enforcement unit. There’s no reason why DEP cannot secure the identities of the owners.
The Secretary of State, when it sends out notices, often sends them to the name it has on file for a registered agent for a company. That could be a lawyer who handled the incorporation years ago or some general corporate office.
Also, summonses are issued months and years after the alleged violation date. There is little opportunity to go back to the driver to correct the behavior and, for leasing companies, it is frequently too late to transfer the liability to the lessee.
The end result of these service issues is that many respondents do not get these summonses at all or on a timely basis. If the summonses go into default, they miss the opportunity to stipulate to a settlement. Worse, if they are in default, the next summons then becomes a second or third offense… all without notice and an opportunity to be heard.
If respondents do not get the summonses on a timely basis, and if the correct violators are not identified, if at all, how will raising the fines and extending the time encourage better behavior?
Additionally, as mentioned, many firms have invested in certified clean idling technology. Those that spend thousands of dollars per vehicle to reduce emissions, should not be treated the same as those who do not. There must be a carve out for vehicles that are certified to be non or reduced polluters. The Agency misses a huge opportunity to induce better practices.
I would be happy to work with the Agency to tweak the existing program so that it truly serves its objectives and operates in a more fair and sustainable manner. However, as proposed, I strongly protest the proposed changes.