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Court overturns DEP Noise Violation

Court overturns DEP Noise Violation

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Matter of 2589 Westside Mkt., LLC v New York City Dept. of Envtl. Protection

Decided November 17, 2015 at App. Div. 1st Dept.

The Court reviewed a determination by the Environmental Control Board of the City of New York (the “Board”), which reversed the decision of an Administrative Law Judge (“ALJ”) regarding a violation issued by the New York City Department of Environmental Protection (“DEP”) against the Petitioner for a noise violation pursuant to an administrative code.

The administrative code at issue required sound level measurements be taken with Lmax with the sound level meter set to slow response.  Thus, Lmax is established as the standard and uniform metric of sound level in determining noise violations.

Here, the Court found that the DEP’s inspector did not establish compliance with the administrative code requirements.  The inspector admitted that there was no Lmax on the meter used to measure the sound.  Pursuant to the code, Lmax is defined as “the maximum measured sound level at any instant in time.”  The inspector failed to establish that his readings measured or that his results reflected the maximum measured sound level.  Thus, the Court found the “quality and quantity” of the evidence to be insufficient to warrant a finding that the Board’s determination was supported by substantial evidence.

 

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