Gallagher v. N.Y.S. Dep't of Envtl. Conservation, 02759-19

• Decision Date: 22 August 2019
• Docket Number: 02759-19
• Parties: 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.
• Court: New York Supreme Court

64 Misc.3d 1237 (A)
118 N.Y.S.3d 365 (Table)

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.

02759-19

Supreme Court, Albany County, New York.

Decided on August 22, 2019

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...