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QP Service Station Corporation - Ruling, May 30, 2003

Ruling, May 30, 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 (ECL), and Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York (6 NYCRR) Parts 612 and 613 by

QP SERVICE STATION CORPORATION,
ANTICO REALTY CORPORATION,
LUCOLO BUS CORPORATION, and
GREGORY IOVINE
Respondents

Ruling on Respondent's Motion

DEC Case No. R2-20021001-319

May 30, 2003

Proceedings

This enforcement action commenced with service, by certified mail, return receipt requested, of a notice of hearing and complaint dated October 23, 2002 upon Respondents, the QP Service Station Corporation, the Antico Reality Corporation, the Lucolo Bus Corporation, and Gregory Iovine. Respondents filed an answer dated November 27, 2002.

Subsequently, Department Staff filed a notice of motion for order without hearing dated April 11, 2003. Staff's motion papers consist of a notice of motion dated April 11, 2002, a copy of the October 23, 2002 complaint, an affirmation by David S. Rubinton, Esq., Staff's attorney, and affidavits by Charles Nabone, Anthony Sigona, Edward Rossan, and Steven Farrand. Attached to Staff's motion was a copy of a petroleum bulk storage registration application by the QP Service Station Corporation. Finally, the motion papers included an affidavit of service of the notice of motion for order without hearing by Louise Munster. Ms. Munster's affidavit is dated April 11, 2003.

By agreement, the return date for Respondents reply to Staff's motion for order without hearing is June 3, 2003.

In the complaint, Staff contends that the QP Service Station Corporation owns and operates a petroleum bulk storage facility at 1317 Castelton Avenue, Staten Island, New York (the Facility). The complaint contends further that the Antico Realty Corporation, the Lucolo Bus Corporation, and Gregory Iovine are owners of the real property located at 1317 Castelton Avenue.

The complaint alleges three causes of action. First, Respondents allegedly violated Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR) §612.2(d) when they undertook a substantial modification of the Facility in March 2002 by removing the petroleum bulk storage tanks without prior notification to the Department. Second, Respondents allegedly violated §613.8 when they failed to report a petroleum discharge to the Department within two hours of its discovery. The discharge allegedly occurred on April 2, 2002 [Spill #0200047]. Third, Respondents allegedly violated §613.9(c) by not giving the Department 30 days prior notification before Respondents permanently closed the tanks at the Facility.

With a cover letter dated May 19, 2003, Respondents filed a notice of motion, a supporting affirmation by Mr. Kramer, Respondents' counsel, a proposed amended answer, and proposed interrogatories. In their motion, Respondents request leave to file the proposed amended answer and to file the proposed interrogatories. In addition, Respondents want to depose the Staff witnesses who filed affidavits with Staff's motion for order without hearing. Finally, Respondents moved to dismiss the complaint against the Lucolo Bus Corporation.

On May 27, 2003, Staff responded to Respondents' motion with an affirmation in opposition by Mr. Rubinton.

1. Proposed Amended Answer

With their motion, Respondents included a proposed amended answer. Respondents argue that the proposed answer should be accepted as provided for by §622.5(b), which refers to the Civil Practice Law and Rules (CPLR).

Staff objects, and argues there is no regulatory basis that allows Respondents to amend their answer prior to the return date of Staff's motion for order without hearing. Staff also contends that Respondents' motion to amend their answer is not necessary.

I reserve ruling on this portion of Respondents' motion. I was not aware that Respondents answered the complaint. Therefore, I cannot determine what Respondents want to amend. Immediately upon receipt of this ruling, Respondents' counsel shall forward a copy of the November 27, 2002 answer to me.

2. Discovery - Depositions and Interrogatories

In their motion, Respondents request leave to file interrogatories and to depose the Staff witnesses who filed affidavits with the motion for order without hearing. According to Respondents, both discovery devices are "extremely important" with respect to this enforcement matter because the Staff witnesses' affidavits are vague.

Respondents argue that Mr. Nabone's affidavit is confusing. Respondents' counsel wants to depose Mr. Nabone to determine why he is involved. Counsel would inquire whether Mr. Nabone reported the alleged violations as a "good Samaritan" or as an "informant." Respondents' counsel wants to depose Mr. Sigona to determine the basis for his observations. Respondents' counsel wants to question Mr. Rossan about the person who identified herself as the "secretary of QP Service Station." Finally, Respondents' counsel wants to depose ECO Farrand to determine whether he knew that the property owner had retained Energy Storage Systems, Inc. to remediate and upgrade the service station.

Respondents argue that the purpose of the proposed interrogatories is to amplify the information stated in the affidavits. According to Respondents, the responses to the interrogatories and the depositions would "present a more comprehensive result," and are needed to provide a defense in this case. If these discovery devises are denied, Respondents argue that they would be seriously prejudiced.

Respondents acknowledge their right to the discovery of documents, but assert that documents would be relatively inconsequential and insufficient to the preparation of their defense.

Staff opposes Respondents' requests for leave to file interrogatories and to depose the witnesses who filed affidavits with the motion for order without hearing. Staff explains that Respondents will have an opportunity to respond to the motion for order without hearing. Staff notes that Respondents have not asserted they will be prejudiced by submitting a single response to Staff's motion. Staff characterizes Respondents' motion as an attempt to dely and confuse the issues, and that the use of the requested discovery devises would not expedite the proceeding.

Pursuant to §622.7(b)(2), the ALJ may authorize the use of depositions and written interrogatories upon a finding that they are likely to expedite the proceeding. Respondents have not shown how the use of these discovery devises would expedite the proceeding. Therefore, I deny Respondents' request.

3. Motion to Dismiss

Finally, Respondents have moved to dismiss the complaint as against the Lucolo Bus Corporation. Respondents contend that the Lucolo Bus Corporation has absolutely nothing to do with this matter. According to Respondents, the only connection that the Lucolo Bus Corporation has with the other Respondents is that the other Respondents maintain their offices at the premises of the Lucolo Bus Corporation on Wolcott Street in Brooklyn. Respondents claimed that the Lucolo Bus Corporation is not an owner or operator of the petroleum bulk storage facility that is the subject of this enforcement action.

In the affirmation opposing Respondents' motion, Staff withdraws the complaint against the Lucolo Bus Corporation. Therefore, the Lucolo Bus Corporation is no longer a party to this enforcement action, and all claims against it are dismissed.

Further Proceedings

Upon receipt of a copy of Respondents' November 27, 2003 answer, I will rule on Respondents' motion to file an amended answer.

By agreement of the parties, the return date for Respondents' reply to Staff's motion for order without hearing is June 3, 2003. Upon receipt of Respondents' reply, I will rule on Staff's motion consistent with the requirements outlined in §622.12.

____________/s/_____________
Daniel P. O'Connell
Administrative Law Judge
NYS DEC - Office of Hearings and Mediation Services
625 Broadway, First Floor
Albany, New York 12233-1550

Dated: Albany, New York
May 30, 2003

To: Marvin E. Kramer, Esq.
Marvin E. Kramer and Associates, PC
1325 Franklin Avenue
Garden City, New York 11530

David S. Rubinton, Esq.
Assistant Regional Attorney
NYSDEC Region 2
47-40 21st Street
Long Island City, New York 11101-5407

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