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Hoffmeister, William - Ruling, May 16, 2003

Ruling, May 16, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Article 17 of the Environmental Conservation Law
of the State of New York and Parts 612 and 613 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York.

-- by --

WILLIAM HOFFMEISTER,

Respondent.

RULING ON MOTION
TO AMEND COMPLAINT

Case No. R6-2001115-115

PROCEEDINGS

Staff of the Department of Environmental Conservation ("DEC Staff") commenced this action with the service of a Notice of Hearing and Complaint upon William Hoffmeister ("Respondent") on March 24, 2003. The Complaint alleged four causes of action relating to underground petroleum storage tanks at a retail gasoline station located at 6133 Trenton Road, Town of Marcy, Onieda County.

By motion dated April 22, 2003, DEC Staff sought to amend its Complaint based upon information provided by the Respondent that the site of the alleged violations had been sold to Mr. Walter Underwood in February 2002. DEC Staff seeks to include the date of the sale of the property in the Complaint, require the Respondent to specify the dates of ownership of the property on his petroleum bulk storage application, and delete from its prayer for relief the requirement that the Respondent close all tanks at the facility and provide proof of proper disposition of all petroleum products. DEC Staff still seeks to pursue the original four causes of action.

DEC Staff personally served this motion and a copy of the Amended Complaint on the Respondent when he appeared at the Department's Offices for a prehearing conference on April 30, 2003. To date, the Respondent has not responded to the motion, though the time to do so has passed.

DISCUSSION

DEC's Uniform Enforcement Hearing Procedures (6 NYCRR Part 622) state "consistent with the CPLR a party may amend its pleading 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." In this case, DEC Staff seeks to amend its prayer for relief to reflect the fact that the Respondent no longer owns the site. Specifically, DEC Staff seeks to remove its requests that the Respondent close the tanks at the site and dispose of all petroleum products from the site. The Respondent has not filed an Answer nor has he submitted any information in opposition to this motion. Granting DEC Staff's motion will not prejudice the Respondent's ability to respond.

RULING

DEC Staff's motion is granted and permission is given for it to amend the Complaint. The Respondent's ability to respond to this amended complaint is not prejudiced.

____________/s/____________
P. Nicholas Garlick
Administrative Law Judge

Albany, New York
May 16, 2003

To: Mr. William Hoffmeister
107 North Jay Street
Rome, NY 13440-4822

Randall C. Young, Esq.
Assistant Regional Attorney
NYSDEC Region 6
Dulles State Office Building
317 Washington Street
Watertown, NY 13601-3787

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