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Bath Petroleum Storage, Inc. and EIL Petroleum, Inc. - Ruling, August 31, 1998

Ruling, August 31, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of the Environmental Conservation Law Articles 3 and 17, Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York
and a Permit issued pursuant to ECL Article 17, Title 8

- by -

E.I.L. Petroleum, Inc.
and
Bath Petroleum Storage, Inc.

Respondents

August 31, 1998

RULING:

The Department's Motion to Amend the Complaint

DEC No.: R8-1088-97-01

Proceedings

The captioned matter commenced with service upon the Respondents of a Notice of Hearing and Complaint dated March 14, 1997. On April 7, 1997, the Department amended the March 14, 1997 Complaint to include additional information about the origin and status of E.I.L. Petroleum, Inc., and to correct a typographical error in Paragraph 74 of the March 1997 Complaint. After obtaining an extension of the period in which to respond, the Respondents duly filed an Answer to the Department's amended Complaint on August 8, 1997.

With a cover letter and motion papers dated August 10, 1998, the Department moved to amend the Complaint in the captioned matter. The Department wants to add new allegations that relate to the Respondents' SPDES permit that were discovered or occurred subsequent to service of the Complaint in March 1997. In addition, the Department wants to add ten more causes of action that relate to alleged violations of ECL Article 23.

In a letter dated August 14, 1998, the Department explained that portions of Paragraphs 69 and 83 of the Proposed Amended Complaint (August 10, 1998) were inadvertently omitted. The letter provided the additional statements that should be included in these paragraphs.

During a telephone conference on August 26, 1998, the Respondents' attorney, Ronald Sinzheimer requested leave to respond to the Department's August 10, 1998 motion to amend the Complaint. Over the Department's objection, I granted Mr. Sinzheimer's request. I received a copy of the Respondents' response by fax on August 31, 1998. Mr. Sinzheimer's office hand delivered a copy before 9:30A.M. on August 31, 1998.

Discussion and Ruling

A party may amend its pleadings once without permission at any time before the period for responding expires [6 NYCRR §622.5(a)]. The Department took advantage of this regulatory provision in April 1997. However, further amendments require permission of the ALJ or the Commissioner [§622.5(b)].

To support the motion, the Department argued that the new allegations proposed in the amended Complaint relate to common questions of fact and law associated with the charges alleged in the original March 1997 Complaint. The Department argued that the Respondents would not be hindered in preparing their case because a settlement conference has not been scheduled [§622.8] and a statement of readiness [§622.9] has not been filed with the Office of Hearings and Mediation Services.

The Department argued that if I denied the motion, the Department has the prosecutorial discretion to initiate another enforcement action against the Respondents which would include the allegations proposed in the amended Complaint. As a matter of efficiency, the Department argued that the new charges should be included in the captioned enforcement action.

The Respondents argued that the Department's motion is prejudicial. The Respondents characterized the Department's motion as a bad faith attempt to "get even" for the Respondents' initiation of a federal court action against the Department. The Respondents argued that many of the issues alleged in the proposed amended Complaint have already been addressed at the hearing concerning the Respondents' permit modification hearing. Alternatively, the Respondents argued there are no state regulations that govern the alleged violations in the proposed amended Complaint.

With respect to the amendment of a Complaint, the question of prejudice relates to notice. I find there would be no prejudice to the Respondents by allowing the Department to amend the Complaint as proposed in the August 10, 1998 motion and August 14, 1998 letter.

The Respondents asserted that this enforcement action has languished since March 1997, but the Respondents sought and obtained permission [§622.4(a)] to file their answer in August 1997, which is much longer than the usual 20 days provided in the regulations. Furthermore, the Department and Respondents have been involved in an administrative hearing concerning a modification of the Respondents' SPDES permit. The Regional Staff have also been involved in an extensive information request made by the Respondents pursuant to the Freedom of Information Law.

To date, the Department has not yet scheduled a pre-hearing conference [§622.8] and has not filed a statement of readiness for an adjudicatory hearing [§622.9]. The purpose of these regulatory requirements is to provide opportunities to resolve and clarify issues, to complete discovery, and to discuss settlement without a hearing. Consequently, the Respondents will have adequate notice of the new allegations and will be able to prepare for a hearing, if one becomes necessary, without being prejudiced. Accordingly, I grant the Department's request to amend the Complaint.

Therefore, the Department may amend the Complaint as proposed in the motion papers dated August 10, 1998 and in the Department's letter dated August 14, 1998. The Department may modify the caption concerning this matter to include references to ECL Article 23, its implementing regulations and any permits issued pursuant thereto.

The Proposed Complaint identifies the maximum potential civil penalties for each alleged violation with appropriate citations to the law. The Department's Civil Penalty Policy (June 20, 1995), however, expressly states that the Department should request a specific penalty amount [p. 4 of 15]. Consequently, the Department shall also provide a written request for a specific penalty amount and a brief explanation of how the requested civil penalty was calculated consistent with the guidance provided in the Civil Penalty Policy, and any other related Enforcement Guidance Memoranda that the Department may rely on in calculating the requested civil penalty.

The Respondents will not be required to file their Answer until they have been provided with a written request for a specific penalty amount and a brief explanation of how the Department calculated the requested civil penalty.

Attached for the Parties' future use is a copy of the Service List in this matter dated August 31, 1998. If there are any omissions, errors, or future changes, inform me immediately, and I will distribute a revised Service List.

For the New York State Department
of Environmental Conservation

/s/
By: Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
August 31, 1998

To: Attached Service List dated August 31, 1998

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