People v. Kelley

Decision Date17 September 1991
Citation152 Misc.2d 178,575 N.Y.S.2d 640
PartiesPEOPLE of the State of New York, v. Timothy J. KELLEY and Vincent B. Brock, Sr., Defendants.
CourtNew York Town Court

Howard R. Relin, Monroe County Dist. Atty., John A. Falk, Asst. Dist. Atty., for the People.

Alan J. Knauf & Associates, P.C. (Robert L. Beck, of counsel) for Timothy J. Kelley.

STEVEN E. MALONE, Judge Presiding.

The within matters, originally commenced in the Village of Honeoye Falls Justice Court were transferred to the Mendon Town Court as the Court of proper jurisdiction. No jurisdictional issues have been raised.

The Defendants in this case have been charged by Informations issued from the New York State Department of Environmental Conservation which said Informations alleged violations of Title 6 New York Code of Rules and Regulations §§ 364.2(a)(1) and 364.2(a)(2). The Informations allege that the Defendants transported a "regulated waste" without a valid permit. The regulated waste allegedly transported was in the form of old motor vehicle tires.

By Notice of Motion dated July 16, 1991, Defendant Kelley moves, by his attorneys, for various forms of relief as well as for an Order dismissing the Informations on the ground that waste tires were not a regulated waste at the time and date of the occurrence.

The People of the State of New York, by Cross-Motion dated August 12, 1991 seek, among other things, an Order allowing the People to amend the accusatory instruments to allege a violation of Environmental Conservation Law (ECL) § 27-0305. (The People's papers erroneously cite § 27-0303). The Court grants that portion of the People's Cross-Motion seeking an amendment of the filed Information in accordance with Criminal Procedure Law § 100.45(3) and the charge now pending before this Court is the alleged violation of ECL § 27-0305(1).

Squarely before this Court now is the issue of whether waste tires were a "regulated waste" as of February 19, 1991, the date of the alleged violation. The determination of this issue requires an analysis of ECL § 27-0303, subdivisions 4 and 12, ECL § 27-0305, subdivisions 1 and 4 and the Rules and Regulations promulgated thereunder as are contained in 6 NYCRR, Part 364.

The Court's analysis starts with the underlying premise that environmental issues are almost always complex and the statutes, rules and regulations designed to control and monitor these important issues are exceedingly complex as well. Neither the statutes nor the rules and regulations can be read alone inasmuch as both sources must be consulted in order to formulate an opinion as to the application or nonapplication of the law to a particular set of circumstances.

The current ECL § 27-0305 goes back to at least 1978 and said Section requires a person to have a permit in order to engage in the transportation of "regulated waste". Up until April 1, 1989, subdivision 4 of this Section provided in part that "the Department may make rules and regulations implementing this section in order to carry out and enforce the intent and purposes thereof" (emphasis added). Such rules and regulations were in fact promulgated and are now contained in 6 NYCRR Part 364. It must be presumed that the Department of Environmental Conservation felt it necessary to make such rules and regulations so as to properly implement ECL § 27-0305. Indeed, in order to make sense of the statutory provisions, the rules and regulations must be consulted.

The Defendant argues that the current rules and regulations exempt from any permit requirements all vehicles transporting "scraps, including but not limited to plastic, rubber, paper, cardboard, wood chips, glass and metal" (6 NYCRR 364.1[e][2][vi] arguing that scrap tires are composed of materials such as plastic, rubber, glass and metal. The Court agrees with this reasoning based, in part, upon the Legislature's amendment of ECL § 27-0303 which added waste tires to...

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