Testimony of Angela Licata Deputy Commissioner, Sustainability NYC DEP before the NYC Council Committee on Environmental Protection, Resiliency, and Waterfronts on DEP Enforcement of the City’s Noise Code and Related Legislation
October 16, 2023
Good afternoon, Chairman Gennaro and members of the Environmental Protection Committee. I am Angela Licata, Deputy Commissioner of Sustainability at the New York City Department of Environmental Protection (DEP). Thank you for the opportunity to testify today.
To begin, I will provide a quick overview of DEP’s noise enforcement work, including the citizen complaint program, and then speak to each of the bills being considered today.
Noise Enforcement
DEP is proud of its work to improve the quality of life for all New Yorkers by enforcing the City’s noise code. The noise code ensures that the city that never sleeps remains vibrant and active while meeting the needs of those who live in, work in, and visit the city by reducing noise pollution and protecting public health.
DEP and the New York City Police Department (NYPD) share the responsibility of enforcing the noise code. DEP’s responsibility focuses on commercial music, construction noise, and noise from buildings’ heating and air conditioning equipment. DEP noise inspectors pro-actively approve and inspect noise mitigation systems and respond to approximately 50,000 noise complaints annually.
The noise code has been updated twice in recent years: first with Local Law 113 of 2005 and then with Local Law 53 of 2018. The 2005 overhaul was first major update to the noise code since the 1970s. These critical updates standardized commercial music regulations, required noise mitigation measures for construction activities, and created a section that prohibits excessive noise from motor vehicles. Since the 2018 changes, DEP has been required to respond to after-hours noise complaints in specific time frames and required that all noise mitigation plans be filed electronically. These changes have strengthened DEP’s enforcement.
In addition to our proactive enforcement, DEP inspectors focus enforcement in areas where complaints are received. They have specific training and can use discretion to determine whether there is a violation or not. If an inspector determines a complaint is justified under the noise code, the inspector informs the business of the alleged violation and what can be done to correct it. Depending on the severity of the alleged violation, inspectors can give the business a warning and time to correct the issues or can issue a summons. In all situations, the business is informed about the issue at the time of the inspection and are instructed about what actions need to be taken to correct it. The goal of DEP’s enforcement is to bring all businesses into compliance with the noise code to reduce noise pollution. The goal is not to be punitive or to get as much money as possible from well-intentioned businesses.
Of course, DEP’s inspectors will never be able to address all of the city’s noise issues as they are happening. We simply cannot be everywhere all the time. This is why citizen enforcement can be a useful complement to DEP’s work. Local law allows anyone to provide evidence of potential violations of certain sections of the noise code to DEP. DEP, or the reporter, can then bring this evidence to the Office of Administrative Trials and Hearings (OATH) for a hearing to determine whether a violation has taken place. We believe citizen enforcement is valuable, but it needs to be fair. Citizen enforcement of the noise code should pursue the same goal as DEP-led enforcement: encouraging compliance and reducing noise pollution. Unfortunately, that has not been the case recently. Citizen noise enforcement has been a significant problem for many businesses this year—with businesses receiving multiple violations by citizen enforcers all at once without warning and racking up thousands of dollars in fines for minor infractions. We do not think this has been fair and we thank the Chair for his attention to this real issue, and to protecting the livelihood of businesses unfairly targeted by a select few citizen enforcers.
About the Citizen Complaint Program
Citizen enforcement is supposed to be a tool to reduce genuine noise pollution in circumstances where DEP inspectors cannot respond in real time. The program is also used for our vehicle idling program—a program that has been largely successful and that is playing an important role in improving air quality in the city and helping communities protect themselves from pollutions.
The idling program allows citizens to film a vehicle idling and submit the video with a description of the incident through the DEP website. DEP inspectors then review the evidence and issue a summons, if warranted. If the vehicle owner is found in violation at the subsequent OATH hearing, the citizen who submitted the evidence is entitled to receive 25% of the collected fine. If DEP does not issue a summons and the citizen decides to self-pursue the case with OATH, then the citizen is entitled to receive 50% of the collected fine.
Some citizens have realized the money-making potential of the idling enforcement program and begun to patrol neighborhoods looking for idling vehicles. Overall, the diligence of idling enforcement has been a positive thing for communities and our air quality; however, there are some overzealous, opportunistic citizen idle enforcers who have abused the program. Some participants have been egregiously aggressive toward our staff and some have tried to defraud the system by doing things like filing fake videos or resubmitting the same video repeatedly. Our staff has thwarted their attempts to submit falsified evidence. They are so successful, in fact, that a few participants started looking for new ways to profit from the Citizens Enforcement Program.
About a year ago, these few participants realized they could file noise complaints against businesses who were playing music outdoors. Because noise videos do not have time minimums, they could make money more easily. A small number of people abused this enforcement option and have been targeting—harassing—several businesses.
In fact, about 90% of the approximately 6,000 noise complaints filed in 2023 by citizens were filed by only two people.
As you can see in this map, these citizens have been targeting specific areas of Queens and Manhattan. These are mostly commercial areas, where they can walk down the street and record sound from multiple businesses in a few minutes.
The enforcement being done through citizen enforcement is hurting businesses and is not helping communities. Citizen enforcement is happening in areas where we do not receive 311 noise complaints. No one is complaining about noise from Times Square in the middle of the day, but more than 1,000 citizen complaint reports have been focused there. The participants are not using enforcement to achieve compliance and reduce noise pollution; they are using it for personal profit.
Legislation
Overall, the legislation being considered today complements DEP’s work and we generally support these bills. We do want to recommend a few specific changes to the introduced legislation and would like to postpone consideration of Intro. 1194.
Intro. 1194
Currently, if a business pays a fine from a noise summons by a citizen enforcer, the citizen enforcer can receive as much as $660. Subsequent violations have heavier fines than first ones, so enforcers are incentivized to stack a series of complaints against one business and deliver many at once. Before a business has received one summons, they have already racked up several more.
Intro. 1194 would reduce the payout collected by citizen noise enforcers from a percentage of the penalty to a flat rate of $5 or $10. This reduction would make it harder for bad actors to use these violations as a source of significant income. This reduced incentive could reduce the volume of summonses that business receive, addressing one of the challenges small businesses are facing.
We share the goal of reducing undue burden on small businesses, so we would like to work with the Council to enact broader reforms to the citizen complaint program. DEP has been working with other agencies, including Small Business Services (SBS), on comprehensive reforms to improve the citizen enforcement program. These reforms will make the program a more effective tool to combat noise pollution and protect businesses from program abuse. Using penalty reduction to reduce the volume of complaints that a business receives only resolves one of the challenges that businesses are facing. Even if this bill were enacted as it is currently drafted, businesses could still receive summonses long after the alleged violation date, receive many summonses at once, have to take the time to defend themselves at an adjudication hearing, and have to pay a significant fine.
In addition to these changes to protect businesses, we want to reform the program to protect City staff from repeated harassment and abuse that they have experienced. As I alluded to earlier, a small number of citizen enforcers have harassed staff at multiple agencies and the companies they provide evidence against. Some specific issues we have dealt with include:
- Several instances of aggressive citizen complainants attempting to access secure government office spaces looking for specific individuals, including an instance of a complainant attempting to assault a staff member;
- Aggressive verbal harassment targeted at specific employees; and
- Instances the same piece of evidence being submitted with different allegations, with the intent to generate multiple summons based on intentionally fraudulent evidence.
I understand that some of your colleagues’ staffs have received similar aggressive communications. If any Council Member has further questions regarding abusive behavior, please feel free to reach out to the administration for more details. We welcome continuing this conversation. The administration wants to enact holistic reform legislation that would establish a fixed monetary payment for citizen enforcers, as this bill does, but would also:
- Ensure that businesses receive a summons in a timely manner and do not receive too many at once;
- Limit citizen noise enforcement to overnight hours, when noise violations have greater negative impacts;
- Create a cure mechanism so that businesses can work with DEP to resolve an issue, avoiding the need to appear at a hearing and eliminating any potential fine;
- Authorizing DEP to establish clear rules for evidence required with reports;
- Authorize the City to disqualify citizens from participating in the program if they are found to submit fraudulent evidence or exhibit abusive behavior.
Further, we would like to update the type of violations that can be reported by citizens. Noise complaints through 311 about ice cream trucks playing music is one of the top five 311 noise complaint categories. Ice cream trucks are not supposed to play music continuously while they are parked. DEP inspectors cannot regularly respond to these calls immediately, so we want to expand citizen enforcement to include this noise.
These changes are designed to benefit small business owners, protect City employees, and strengthen the program. We have been working closely with partner agencies, including Small Business Services, to create this reform package. We do not want to eliminate the citizen complaint program, but we need to fix it.
We would like to postpone considering any citizen complaint program bill until we present the members with a holistic reform package to consider. We look forward to continuing to work with the Chair on this issue.
Intro. 160
Intro. 160 would amend the noise code relating to interior noise at commercial establishments, so that noise that is generated inside but can be heard from the sidewalk is no longer treated the same as noise that is generated outside. This would include removing interior noise from citizen enforcement eligibility. We think this clear delineation to the Citizen Enforcement Program makes sense and makes the code more understandable for businesses, so we support this bill.
Intro. 774
Intro. 774 would require DEP to measure construction-related sound levels inside homes whenever asked to. DEP follows this practice currently, so we support this requirement since it is already codified in 24-223(d) for after-hours work. DEP recommends amending sections 228 and 229 to allow for readings to be taken from a dwelling during the day with limits warranting a summons set to an increment of 10 dBA above the ambient during the day instead of a limit of 85 dBA and retain the 7 dBA standard for after-hours work.
Intro. 775
Intro. 775 would require DEP to post the results of all noise inspections online within 24 hours of the inspection being completed. We request that this bill be amended to extend the time window. Each inspection report must be reviewed and approved by a supervisor, and there are extra considerations when we expect a summons to be issued. We prefer to delay posting information to ensure that the information is accurate, so we would like to work with the sponsor to determine a more workable timeline.
Intro. 776
Intro. 776 would require DEP to provide any noise inspection report that was generated in response to a 311 call to be provided to anyone who requests the report and has the 311 tracking number. Currently, FOIL requests are required to obtain these reports. We support the goal of this bill, but would like to discuss it in more detail with the sponsor and our colleagues at the police department.
Intro. 777
Intro. 777 would add debris removal to the definition of construction work that requires a variance for after-hours noise generation. DEP already considers debris removal in noise permit requirements, as removal of material is part of the construction process. DEP supports the inclusion of debris removal in the definition of construction work.
Intro. 778
Intro. 778 would require DEP to establish a noise camera program for motor vehicles and lays out the specifications of how the program should work and how OATH should process violations. DEP began piloting a vehicle noise camera program in 2021. After a successful pilot period, we launched the program officially in March 2022. The program has led to more than 300 violations being issued. The use of the cameras is an effective and efficient complement to boots-on-the-ground or field patrol enforcement efforts. We continue to learn and evolve the program, including adopting new technologies and increasing the number of camera locations. If a noise program is required by local law, we support many of the proposed requirements, including the reporting and certification requirements: however, we would like it to complement the program that we have developed over the last few years and be flexible enough to allow the program to evolve as new technology emerges. We are happy to work with the sponsor on this legislation.
Thank you for your consideration of these matters. We look forward to engaging in thoughtful discussion with the Chair and bill sponsors to work towards our shared goal of reducing noise pollution to protect the health of all New Yorkers. My colleagues and I are happy to answer any questions that you have.