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Mt. Hope Asphalt Corp. - Ruling 4, November 3, 1994

Ruling 4, November 3, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Consolidated Hearing In the Matter of Alleged Violation of Articles 19 and 27 of the New York Environmental Conservation Law and Parts 201 and 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, and Proceedings to Revoke All Permits Now Held by and Deny All Applications for Permits Filed by,

MT. HOPE ASPHALT CORP., a/k/a
MOUNT HOPE ASPHALT CORP.

and

JAY BOYLE, PAUL ABRAMS AND FRANK PETROSKY,
Individually, and In Their Capacity as Officers of MT. HOPE ASPHALT CORP., a/k/a
MOUNT HOPE ASPHALT CORP,

Respondents.

RULING ON MOTION TO AMEND COMPLAINT

[Fourth Ruling]

Introduction

A notice of hearing and complaint dated September 17, 1993 initiated an enforcement proceeding in this action. By order dated November 10, 1993, with mutual consent of the parties, that matter was consolidated with an action to revoke and deny Respondents' permits and permit applications. The consolidated action proceeds under the 6 NYCRR 622 hearing regulations. Following motion practice, pursuant to a June 22, 1994 order, Staff filed an amended complaint on July 8, 1994.

By scheduling order dated September 29, 1994, a tentative hearing date of November 14, 1994 was set. A tentative date was set because Staff has had pending for some time, a motion to adjourn hearing in this matter pending resolution of parallel criminal proceedings undertaken by the Office of the Suffolk County District Attorney. Respondents have variously opposed or reserved taking a position with respect to this motion, but have consented to periodic adjournments. By letter dated October 26, 1994 Respondents assert they oppose Staff's motion for adjournment of hearing, and are prepared to proceed to hearing on November 14, 1994.

Now, by motion dated September 30, 1994, Staff seeks to file a second amended complaint, adding a new cause of action (not merely adding a new theory of liability). The new cause of action alleges Respondents buried petroleum contaminated soil in the parking lot of their asphalt processing plant located at 395 Nugent Drive, Calverton, New York. Staff does not seek additional monetary penalties for the new cause of action, but seeks an order of remediation. Obviously, the new allegations, if proven, would also affect the record of compliance/permit aspect of the action.

Respondents oppose the amendment, asserting that matters alleged in the new cause of action were within Staff's knowledge for approximately one year, and should have been brought earlier in the proceeding if Staff intended to pursue those charges. Respondents assert that Staff improperly seeks to delay the hearing process by moving to amend the complaint at this time. In support of their position, Respondents produced a letter dated October 23, 1993 from the NYSDEC Regional Attorney to Respondents' former counsel, indicating that regional legal Staff had some knowledge of information necessary to form the allegations which are the subject of the motion to amend the complaint, as early as October, 1993 - -one year ago, not Spring, 1994 as Staff's reply affidavit states.

Staff filed a response to this information, on October 27, 1994, asserting that Regional Counsel's 1993 letter does not make a statement about Staff's knowledge of County records, and that in any event, Respondents have misinterpreted the letter. Instead, Staff asserts that Spring, 1994 is when Staff's Oil Spill Unit began their investigation into the matter. Staff correctly notes that adjournments in this action have been almost without exception by mutual consent of the parties.

Lastly, Staff denies that the motion to amend is brought as an attempt to delay hearing in this matter. Staff concludes by asserting that full exploration of record of compliance issues already pertinent in this consolidated proceeding, would best be achieved by allowing amendment of the complaint.

Motion to Amend the Complaint

This consolidated hearing is governed by the enforcement hearing regulations (6 NYCRR 622). 6 NYCRR 622.5 authorizes amendment of pleadings consistent with the CPLR. Staff asserts that pursuant to CPLR 3025(b), leave to amend should be freely granted. For reasons discussed below, Staff's motion to amend the complaint is granted.

The CPLR policy is to grant leave to amend for almost any purpose, as long as the amendment does not prejudice the adverse party. Respondents assert they will be prejudiced in a number of ways if the amendment is granted. First, Respondents assert that in this instance, the motion is in bad faith because it was not mentioned by Staff during a September 29, 1994 telephone conference in this case. Respondents cite the third ruling, in which I indicated that at that point in time I was not inclined to allow further amendment of the complaint to add new causes of action, thereby resulting in further delay. Respondents mistakenly interpret that statement as an absolute bar to further amendment.

Next, Respondents assert they will be prejudiced if the amendment is allowed, because the subject matter of the proposed new cause of action is distinct from claims contained in the current complaint, and is not a basis for permit denial and revocation cited initially by Staff. It appears from the pleadings and motions that proof on the proposed amendment may, as Staff asserts, be duplicative of proof required by the current complaint. Respondents' claim of prejudice on this basis is rejected. Further, in evaluating the parties' interests, I find no prejudice to Respondents by the anticipated delay occasioned in granting the proposed amendment. The permit aspect of the case already raises record of compliance issues regarding Respondents' fitness and suitability to engage in the regulated activities. The proposed amendment raises new allegations which, if true, will present important additional information regarding Respondents' suitability and fitness. Had the proposed amendment alleged violations which, even if true, would not substantially impact the record of compliance determination, I would have denied Staff's motion to amend the complaint, thereby avoiding any additional delay in this action.

Lastly, Respondents claim that allowing the amendment will defeat administrative economy envisioned when the two matters were consolidated. To the contrary, the amended complaint will aid administrative economy in bringing forward a full review of all record of compliance issues in this one consolidated proceeding. Prior to filing the motion to amend, Staff had indicated in conference that it would likely be filing a motion to amend the complaint. Therefore, Respondents' claim that they are surprised because Staff did not mention the motion during the September 29, 1994 conference, or that Staff acted improperly in moving to amend, is rejected.

Rulings

  1. Staff's motion to amend the complaint is granted. Respondents' counsel is directed to notify Staff and the ALJ by November 3, 1994, only if counsel is not authorized to accept service on behalf of Respondents (as was done previously). Otherwise, the second amended complaint is deemed served on November 3, 1994. Respondents may file a supplemental or amended answer addressing only amendments contained in the second amended complaint, by November 25, 1994. Staff may file a response to the answer within 10 days of receipt of that pleading.
  2. On October 26, 1994, Respondents declared their opposition to Staff's motion to adjourn this action pending disposition on the parallel criminal action, and have indicated they are prepared to proceed to hearing. On that basis, Staff's motion for adjournment is denied.
  3. Since Staff's motion to amend the complaint has been granted, the tentative hearing dates during the week of November 14, 1994 are canceled. Further scheduling will follow motion practice on the second amended complaint.

/s/
Administrative Law Judge

Albany, New York
November 3, 1994

To: Sanford Strenger, Esq.
Farrell, Fritz, Caemmerer, Cleary
Barnosky & Armentano, P.C.
Attorneys for Respondents
EAB Plaza
Uniondale, New York 11556-0120

Louise Aja
Assistant Regional Attorney
NYSDEC Region 1
SUNY Campus - Building 40
Stony Brook, New York 11790-2356

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