Many construction projects within the City of New York will encounter violations for environmental control board (ECB) violations at one time or another. Many of the violations are minor but some can shut your project down. The key is not to ignore them. Ignoring the violations will not make them go away: it will lead to more severe penalties.
There are generally three levels of violations. There are class 3 (least severe), class 2 (moderate) and class 1(most severe). Ignoring violations can lead to additional violations that are more severe. Fines can range from a few hundred dollars to a few thousand dollars and your project being shut down.
Often, class 2 or class 3 violations can be “stipulated” to with the Department of Environmental Protection. You may even receive an offer to stipulate in the mail before your hearing date. Generally the stipulation provides that you admit the violation, agree to cure it within 75 days and will pay a fine. If you cure the violation within the period of time and file a certificate of correction then that is it and you are done with the violation.
However, if you do not agree to the stipulation, or if the violation is a class 1 violation, then you will have to appear for a hearing before an administrative law judge (ALJ). The ALJ will hear your defense to the violations and will then generally issue a recommendation to the ECB. The ECB will then issue its determination with regards to the violation. The ECB could fine you or could order you to shut down the offending condition or stop using it until it is remedied.
The ECB hearing before the ALJ is essentially a mini trial. You will present evidence in your defense and the DEP will present evidence of the violation. If you dispute the violation, you will need to provide evidence as to why the violation is improper. If you do not dispute the violation but, rather, need time to carry out the corrective efforts then it is a very good idea to show up to the hearing with a written timeline showing exactly how and when you will correct the violation.
Perhaps the most drastic remedy that the ECB can hand down is a cease and desist order. The cease and desist order will require you to stop the offending condition and can lead to equipment being “sealed” by the DEP.
In order to avoid having the ECB hammer dropped on your job site or your building, make sure you immediately speak to your attorney about the alleged violation and formulate a plan to handle the violation.
Vincent T. Pallaci is an attorney at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on construction law including defending against ECB violations. He can be reached at (631) 752-7100 or firstname.lastname@example.org