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Adelman, Richard H. - Ruling, July 30, 1998

Ruling, July 30, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Article 24 of
the New York State Environmental Conservation Law (ECL),
and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR)

- by -

H. RICHARD ADELMAN
526 Sinclair Avenue
Staten Island, New York 10312-2731

Respondent

Ruling on Respondent's Motion for a More Definite Statement of Complaint

DEC No. R2-0021-98-06

July 30, 1998

By certified mail, the Department duly served a Notice of Hearing, Pre-Hearing Conference, and Complaint dated June 24, 1998 upon the Respondent. With a cover letter dated July 13, 1998, Udo Drescher, Esq., Assistant Regional Attorney, from the Department's Region 2 Office, asked Chief Administrative Law Judge Louis to assign an administrative law judge to decide the Respondent's request for a more definite statement. This matter was assigned to me on July 21, 1998.

The following were included with Mr. Drescher's July 13, 1998 cover letter: (1) a copy of the Department's Notice of Hearing, Pre-Hearing Conference, and Complaint dated June 24, 1998, (2) a signed copy of the Domestic Return Receipt attached to the copy of the Notice and Complaint that was sent to Mr. Adelman, (3) a letter dated July 13, 1998 from Mr. Adelman requesting a more definite statement, and (4) a response dated July 13, 1998 from Mr. Drescher to Mr. Adelman.

The June 24, 1998 Complaint alleges that the Respondent violated ECL 24-0701 and 6 NYCRR 663.4 six times on May 2 and 3, 1998 by undertaking regulated activities in or adjacent to Freshwater Wetland AR-29 without a permit from the Department. The site of the alleged violations is located at 526 Sinclair Avenue, Staten Island (Richmond County).

According to the Complaint, the Respondent allegedly: (1) removed wetland vegetation, (2) excavated material from the wetland, (3) installed a pipe 10 feet long and 2 feet in diameter, (4) filled in around the pipe, (5) regraded the site, and (6) covered the regraded area with blacktop. The Department wants the Commissioner to assess a civil penalty of $3,000 for each of the six violations, and to direct the Respondent to remove the pipe and restore the wetland to its original condition.

The Respondent's Motion

In Paragraphs 4a - 4f of his letter dated July 13, 1998, the Respondent requested a more definite statement, as provided by 6 NYCRR 622.4(e), about Paragraphs 6, 7, 9, 11 of the Department's June 24, 1998 Complaint. At this point in the proceeding, Mr. Adelman is representing himself.

With respect to Paragraph 6 of the Complaint, the Respondent argued that the phrase, "on or around the weekend of May 2nd and 3rd, 1998" is vague. The Respondent wants the Department to be more specific about the actual date of the alleged violations. The Respondent also wants the Department to identify the type of vegetation that was allegedly removed from the site. Finally, the Respondent seeks clarification about the characteristics of the road that was allegedly constructed in the wetland.

Referring to Paragraph 7 of the Complaint, the Respondent requested clarification about the size of the area allegedly impacted by the Respondent's actions, and the location of this area with respect to the freshwater wetland boundaries. The Respondent requested clarification about the potential and actual environmental impacts associated with the alleged violations as asserted in Paragraph 9 of the Complaint. The Respondent also argued that Paragraph 11 of the Complaint was vague.

With respect to the relief sought by the Department, the Respondent requested clarification about how the site should be restored, as well as an explanation about how the Department calculated the requested civil penalty.

The Department's Response

The Department argued that the Respondent's motion should be denied because it is untimely. Based on the postmark of the signed Domestic Return Receipt, which the US Postal Service returned to the Department's Region 2 Offices, the Respondent received the June 24, 1998 Complaint on June 30, 1998. Consequently, the Department argued that the Respondent did not file his July 13, 1998 motion within 10 days after service of the Complaint as required by 6 NYCRR 622.4(e).

In addition, the Department argued that the Complaint is sufficiently clear as to the events and allegations complained about. According to the Department, the Complaint contains a concise statement of the matters asserted [622.3(a)(iii)]. In addition, the Complaint provides the Respondent with a description of the time, nature, location, and the extent of the Respondent's participation in the alleged violations.

The Department also contended that the Respondent is very familiar with all the matters asserted in the Complaint. According to the Department, the Respondent participated in a settlement conference with the Region 2 Department Staff on June 9, 1998. The Department asserted that during the conference, the Respondent discussed the site conditions and other aspects of the allegations asserted in the Complaint.

Discussion and Ruling

According to the Department's enforcement hearing regulations, a Complaint must contain: (1) a statement of the legal authority and jurisdiction under which the proceeding is held; (2) a reference to the particular sections of the statutes, rules and regulations involved; and (3) a concise statement of the matters asserted [6 NYCRR 622.3(a)(1)(iii)]. The regulations also allow a Respondent to move for a more definite statement within ten days after service of the Complaint if it is so vague and ambiguous that the Respondent cannot reasonably be required to frame an answer [6 NYCRR 622.4(e)].

Although Mr. Adelman's motion is untimely, the merits of the Respondent's request are addressed below.

I find that the complaint is not so vague or ambiguous that the Respondent cannot reasonably be required to frame an answer. I, therefore, deny the Respondent's motion for a more definite statement. The regulations require only a concise, which means terse or succinct, statement of the matters asserted. Elaboration is not required, only notice sufficient to respond, which in this case has been provided.

To get a more definite statement, the Respondent would have to show that the Complaint is not sufficiently clear. While the Respondent may contest the charges, the Complaint is clear enough about what the charges are.

The kind of information sought by the Respondent with respect to the allegations in Paragraphs 6, 7, 9, and 11 of the Complaint relates more to an elaboration of the allegations. In other words, the Respondent's motion is really a discovery request of the Department about the basis for the allegations in the Complaint. The process of discovery, however, takes place after the Parties have filed their respective pleadings, which are a Complaint from the Department, and an Answer from the Respondent.

Order of Disposition

Consistent with 6 NYCRR 624.4(e)(1), the Respondent must file an Answer within 10 calendar days of receipt of this ruling. To expedite the case, I will serve the ruling by telefax today upon Mr. Adelman and Mr. Drescher. Since I am the Administrative Law Judge assigned to the hearing in this matter, Mr. Adelman must send a copy of the Answer at the same time and in the same manner to Mr. Drescher at the Region 2 Office and to me at the address provided below.

For the New York State Department
of Environmental Conservation

/s/
Daniel P. O'Connell
Administrative Law Judge
Office of Hearings and Mediation Services
NYS Department of Environmental Conservation
50 Wolf Road
Albany, NY 12233-1550
Telephone: 518-457-3468
FAX: 518-485-7714

Dated: Albany, New York
July 30, 1998

To: H. Richard Adelman
526 Sinclair Avenue
Staten Island, NY 10312-2731
Telephone: 718-317-8495
FAX: 718-948-2801

Udo Drescher, Esq.
Assistant Regional Attorney
NYS DEC Region 2
One Hunters Point Plaza
47-40 21st Street
Long Island City, NY 11101
Telephone: 718-482-4965
FAX: 718-482-4962

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