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Costell, Milton - Ruling 3, February 7, 2002

Ruling 3, February 7, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

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

- by -

MILTON COSTELL,

Respondent

Ruling on Motion To Reopen Hearing

Case No. R1-2000927-72

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) section 624.13 and Civil Practice Law and Rules ("CPLR") Rule 4404 Milton Costell ("Respondent") has moved by Petition dated January 20, 2002 for an Order directing that the hearing held herein on November 8, 2001 be reopened. The New York State Department of Environmental Conservation ("Department" or Department Staff") has opposed the motion by affirmation of Karen A. Murphy, Esq., regional attorney for the Department's Region 1 Office, Stony Brook, New York.

This matter is an enforcement action commenced by Department Staff in October, 2000. The Complaint served upon Respondent in October, 2000 alleged that Respondent violated 6 NYCRR §325.2(b) "in that he caused or allowed chlorine compressed gas be(sp) attached to a pool filtration system which unitizes chlorine compressed gas in a residential area (at his residence) in violation of the labeling instructions". Also, that the Respondent violated 6 NYCRR §211.2 by causing or allowing a release into the outdoor atmosphere of chlorine compressed gas at his residence located at 4 Sandstone Lane Stony Brook, NY on or about May 22, 2000. A verified answer was timely served by Respondent denying the essential allegations of the complaint. Thereafter, an amended complaint was served. The amended complaint included the violations alleged in the original complaint and alleged that Respondent violated Environmental Conservation Law ("ECL") sections 33-1301(10) and 33-1503(1) in that he removed a quarantined item (can of compressed chlorine gas) without the Commissioner's permission.

No answer was served by Respondent with respect to the amended complaint.

A hearing was held on November 8, 2001 in the Department's Region 1 office located in Stony Brook, New York. Respondent appeared pro se and the Department appeared by Karen A. Murphy, Esq., regional attorney. The hearing was completed on November 8, 2001 and the record closed on December 14, 2001, upon completion of the hearing and receipt of the transcript of the proceedings.

Prior to the close of the record but after completion of the hearing, the Respondent served a motion to dismiss. The motion, dated December 3, 2001 was supported by the petition of the Respondent, Milton Costell. Staff opposed the motion by objections dated December 6, 2001. The motion was denied. Motions to dismiss are governed by CPLR Rule 3211. Rule 3211 identifies 11 grounds for such a motion. The Respondent did not identify what grounds he was basing the motion on or even that he is basing the motion on Rule 3211. In fact, the Respondent did not meet any of the 11 grounds that would warrant a dismissal of the action.

Discussion

The Respondent's Motion to Reopen the proceeding is without merit. The Respondent argues two points as the basis for the motion. The first argument is that a DEC employee who was called as a witness at the hearing gave false testimony and as such, the Respondent asks that the DEC employee be charged with perjury. The Respondent has offered no legal or factual support for his charge that a witness committed perjury. Secondly, the Respondent alleges that he should be provided access to records that he was previously denied access to, more specifically, the time records of the employees involved in this investigation. The Respondent alleges that if he has access to those records he can establish "gross errors" on the part of the Department in its investigation. There is no allegation that the records have any bearing on the violations alleged in the Amended Complaint.

It is noteworthy that the Respondent has admitted ALL of the violations alleged in the complaint and amended complaint. He has offered no defense to any of these violations. He merely states his opposition to the investigation methods employed by the Department Staff.

Based on the Petition submitted, I find no basis to reopen this hearing. None of the points raised by the Respondent have any bearing on the violations. The Respondent merely voices his objections again to the investigative methods employed by the Department Staff.

Conclusion

The motion to reopen the hearing is denied.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Molly T. McBride
Administrative Law Judge

Dated: Albany, New York
February 7, 2002

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