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Carroll, Edward - Ruling, April 29, 1994

Ruling, April 29, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 27 of the Environmental Conservation Law and
Title 6 of the Official Compilation of Codes, Rules and Regulations (6NYCRR) Part 360

- by -

EDWARD J. CARROLL

RESPONDENT

RULING ON RESPONDENT'S MOTION

DEC No. R3-1742/8908

Summary

After a hearing on November 6, 1989, the Commissioner concluded in an Order dated May 8, 1990 that the Respondent violated Part 360 when he allowed solid waste material to be placed and stored on his property without a permit from the Department. Pursuant to CPLR Article 78, the Respondent appealed the Commissioner's Order. In a Judgment dated June 28, 1993, the Supreme Court (Ulster County) vacated the Commissioner's Order and remanded the matter to me to let the Respondent "interpose his defense to the charges as lodged against him."

With a cover letter dated April 8, 1994 the Respondent filed a Notice of Motion to Dismiss. With a cover letter dated April 22, 1994, the Department filed its response. This ruling denies the Respondent's Motion to Dismiss.

The Parties' Positions

The Respondent filed a Notice of Motion to Dismiss dated April 7, 1994 with attached affirmation and exhibits. The Respondent moved to dismiss the captioned matter because: (1) the Department did not present a prima facie case at the November 6, 1989 hearing, (2) the Notice of Hearing and Complaint do not comply with the State Administrative Procedures Act (SAPA) 301(2), and (3) the Department denied the Respondent a speedy hearing. In addition, the Respondent moved to suppress the testimony of Environmental Conservation Officer (ECO) Marion Hoffman because ECO Hoffman trespassed on his property.

The Department opposed the Respondent's Motion to Dismiss. In its response, the Department argued that it presented a prima facie case at the November 6, 1989 hearing. The Department contended that the Respondent must prove that he was exempt from Part 360. The Department asserted the Notice of Hearing and Complaint comply with SAPA. The Department also opposed the Respondent's request to suppress ECO Hoffman's testimony.

Ruling and Discussion

The Respondent's Motion to Dismiss is denied in full for the following reasons.

In the June 28, 1993 Judgment, the Court determined that the Respondent's claim to an exemption from the regulations is considered a defense. Therefore, the Department does not need to prove that the exemptions provided in Part 360 do not apply to the Respondent. Rather, the Respondent bears the burden to prove that he was exempt from Part 360.

Although the Department argued that the Respondent waived his right to assert an exemption from Part 360 at the hearing, the June 28, 1993 Judgment specifically directs me to let the Respondent "interpose his defense to the charges as lodged against him." Accordingly, the Respondent will have an opportunity to prove this defense at the upcoming hearing.

The Notice of Hearing and Complaint are not defective. The statement in the Complaint that the Respondent was "operating a solid waste management facility without a valid permit to do so" is, in fact, a short and plain statement of the matter asserted as required by SAPA 301(2). Moreover, the Respondent did not request a more definite statement before the November 6, 1989 hearing.

The Respondent's conclusory statement that the Department denied him a speedy hearing is totally unsupported. I will not consider it further.

Finally, I deny the Respondent's request to suppress ECO Hoffman's testimony. The Respondent's claim that Officer Hoffman illegally searched his property raises a factual dispute that cannot be resolved now. After a factual record is developed, the Respondent may renew his motion to exclude Officer Hoffman's testimony.

The Respondent's Answer

By May 13, 1994, the Respondent shall serve the Region 3 Department Staff and me with an Answer. The Respondent's Answer shall comply with 622.5 (effective prior to January 10, 1994) and explicitly assert any affirmative defenses.

Scheduling

The Parties shall confer with each other to develop a schedule for the hearing that shall include at least three consecutive days. I am presently available from May 16, 1994 through July 29, 1994 except for the weeks of June 27 - July 1, 1994 and July 11 - 15, 1994. The Parties shall provide me with the hearing schedule by May 13, 1994.

The hearing will convene at the Department's Region 3 Offices promptly at 10:00 A.M., and continue, as needed, on consecutive days until completed. The Department shall arrange for the stenographer.

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

Dated: Albany, New York
April 29, 1994

To: Melvin T. Higgins, Esq.
195 Wall Street
Kingston, New York 12401

Jonah Triebwasser, Esq.
Senior Attorney
NYSDEC - Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

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