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Costell, Milton - Ruling, May 2, 2001

Ruling, May 2, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 19, 33 and 71 of
the Environmental Conservation Law and Parts 325 and 211 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

MILTON COSTELL,

Respondent

RULING ON MOTION

DEC Case No.

R1-2000927-72

Background

The New York State Department of Environmental Conservation ("DEC Staff") commenced this action pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") section 622 by service of a notice of hearing, pre-hearing conference, calendar call and complaint dated October 16, 2000. The complaint asserts three alleged violations of the Environmental Conservation Law ("ECL") and its implementing regulations. More specifically, the Respondent is alleged to have violated 6 NYCRR 325.2(b) in that he used pesticides not in accordance with the labeling directions by causing or allowing chlorine compressed gas to be attached to a pool filtration system in a residential area in violation of labeling instructions; and violated 6 NYCRR 211.2 in that he released or allowed to be released into the outdoor atmosphere chlorine compressed gas at residential property. Respondent served a verified answer on or about November 16, 2000 denying the alleged violations.

By motion dated February 14, 2001 DEC staff served a notice of motion to amend complaint. In support of said motion DEC staff submitted an affirmation of Karen A. Murphy, Esq. counsel for DEC and a proposed amended complaint. Respondent was granted two extensions of time to answer and/or oppose the motion and no response was received.

Staff's Motion was served on the Office of Hearings and Mediation Services and was assigned to Administrative Law Judge ("ALJ") Molly T. McBride.

A motion to amend a complaint shall be granted "...at any time prior to the final decision of the commissioner by permission of the ALJ or the commissioner and absent prejudice to the ability of the other party to respond." 6 NYCRR 622.5(b) The amendment to the complaint alleges that the Respondent removed property that was quarantined by DEC as a part of the original enforcement proceeding. DEC Staff alleges that Respondent removed or caused to be removed a canister of compressed chlorine gas after DEC Staff specifically instructed Respondent that the quarantined item was not to be moved or removed until the quarantine is released by the DEC. The Respondent was also allegedly served with a quarantine order. DEC asserts that the quarantined item was not observed at the property upon a routine inspection of the site.

Staff's Position

The violations alleged by DEC Staff in its complaint involve Respondent's residence located in Suffolk County, New York. It is alleged in the amended complaint that a canister of compressed chlorine gas was quarantined by DEC staff and that the quarantined item was removed, in direct violation of the quarantine order.

Respondent's Position

Respondent served an answer denying the allegations of the complaint and has submitted no response to the motion to amend the complaint. In a telephone conference call of March 28, 2001 between the Respondent, Karen A. Murphy, Esq. of the DEC and this ALJ, the Respondent requested additional time to respond to the motion to amend the complaint. The Respondent was granted until April 25, 2001 to respond and was told that papers must be received by that date to be considered. To date Respondent has not submitted a response to the motion.

Ruling

The motion of DEC Staff to amend its complaint was served prior to the time restrictions enumerated in 6 NYCRR 622.5(b) and the motion will not prejudice the respondent's ability to respond. The motion is granted. Said amended complaint shall be served upon Respondent within 15 days of receipt of this ruling. Respondent shall be granted 30 days from receipt of the amended complaint to serve an answer.

Dated: May 2, 2001
Albany, New York

_____________/s/_____________
By: MOLLY T. MCBRIDE

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