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Sears Petroleum - Ruling and Order, January 26, 1993

Ruling and Order, January 26, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
Alleged Violations of Article 17 of the Environmental Conservation Law of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Part 613

- by -

Sears Petroleum and Transport Corporation Respondent

RULING and ORDER

DEC No. R4-1408-92-10

Summary

The Department's Notice of Hearing and Complaint dated January 4, 1993 alleges that the Respondent violated 6 NYCRR Part 613. The Respondent requested an adjournment of the hearing, moved for a more definite statement, and requested leave to file interrogatories. The Department opposes all the Respondent's requests. This ruling denies the Respondent's requests, and directs the Respondent to file an Answer.

The Respondent's Requests

By letter dated January 6, 1993, the Respondent requested an adjournment of the hearing in the captioned matter from February 19, 1993 to March 26, 1993. The reason given by the Respondent for the adjournment was that one of the principals of the Respondent Corporation would not be available on February 19, 1993 but would be available on March 26, 1993. By letter dated January 22, 1993, the Respondent identified Howard Sears as the individual who will be out of town on February 19, 1993. The Respondent also requested a pre-trial conference with the Department's Region 4 Staff and me to resolve the subject enforcement action as provided by the draft Part 622 rules currently under review.

With a cover letter dated January 8, 1993, the Respondent moved for a more definite statement about the allegations asserted in the Complaint dated January 4, 1993. Referring specifically to Paragraph 5 of the Complaint, the Respondent argued that the Respondent could not provide an Answer to the Complaint without a more definite statement. In Paragraphs 4 and 5 of Respondent counsel's affidavit submitted in support of its motion, the Respondent proposed several questions that it argued would clarify the allegations in the Complaint.

With the January 8, 1993 cover letter the Respondent included interrogatories, and requested leave, in the interest of justice, to serve them on the Department.

The Department's Position

In a letter dated January 11, 1993, the Department objected to the Respondent's request for adjournment for two reasons: (1) the requested adjournment is too long, and (2) the Respondent did not identify and explain why the corporate principal is not able to attend the hearing on February 19, 1993. The Department also stated that the Region 4 Staff would be available for a conference to discuss settlement of this matter.

In its reply dated January 13, 1993, the Department opposed the Respondent's request for a more definite statement of the Complaint. The Department contended that the Complaint conformed with 622.3. The Department argued that CPLR 3024(a) places the burden on the Respondent to demonstrate why the allegations are too vague for the Respondent to respond to them. The Department requested me to direct the Respondent to file an Answer to the Complaint by January 26, 1993.

The Department objected to the use of interrogatories by the Respondent. Citing 6 NYCRR 622.8(e), the Department argued that the Respondent did not state how the interrogatories would be in the interest of justice and how they would expedite the proceeding.

RULING

The Respondent's request for an adjournment, motion for a more definite statement, and request for leave to file interrogatories are denied. The Respondent has the burden to show why its requests should be granted. The Respondent did not meet this burden because the Respondent provided nothing more than vague and conclusive reasons that do not sufficiently support the relief requested.

The Respondent's vagueness and conclusive reasoning are illustrated below. Although initially withheld, the Respondent identified Howard Sears as the individual who will be out of town on February 19, 1993 subsequent to its January 6, 1993 request for an adjournment. Nevertheless, the Respondent does not explain why Mr. Sears will be out of town on February 19, 1993. Also, the Respondent did not provide Mr. Sears' corporate title or state whether Mr. Sears would be a witness at the hearing. The Respondent did not explain why another corporate principal could not attend the hearing in Mr Sears' place. Also, the Department does not allege that Howard Sears is personally liable for the violation asserted in the Complaint.

The Respondent's request for a more definite statement specifically identifies Paragraph 5 of the Complaint which is a quotation of the pertinent parts of 613.6(d). The questions proposed by the Respondent in its Notice of Motion and Affidavit would not clarify the Department's allegations. In the Notice of Motion and Affidavit, the Respondent did not explain, as required by CPLR 3024(a), how the Complaint is so jumbled or disorderly that the Respondent cannot answer.

Pursuant to 622.8(e), interrogatories may be used with leave from the Administrative Law Judge in the interest of justice and where they would expedite the proceeding. Although the Respondent asserted that the interrogatories were in the interest of justice, the Respondent did show how the interrogatories would meet the two criteria provided in 622.8(e).

ORDER

The Respondent shall serve its Answer on the Department by regular mail within seven calendar days from receipt of a telefaxed copy of this ruling. The Respondent's Answer shall include any defenses that the Respondent intends to demonstrate at the hearing. The Respondent shall provide me with a copy of its Answer.

With respect to the Respondent's request for a pre-trial hearing conference, neither the current nor the proposed draft Part 622 regulations require the presence of an ALJ at pre-hearing conferences. The Department has indicated its willingness to meet with the Respondent to discuss settlement of this matter. I encourage the Parties to meet before the hearing for frank discussions without me to settle the matter.

_____________/s/_____________
Daniel P. O'Connell
Administrative Law Judge
Albany, New York

Dated: January 26, 1993

To:

Sidney L. Manes, Esq.
Green and Seifter, P.C.
One Lincoln Center
Syracuse, NY 13202-1387
FAX: 315-422-3549

Richard Ostrov, Esq.
Acting Regional Attorney
NYSDEC Region 4
2176 Guilderland Avenue
Schenectady, NY 12306
FAX: 518-382-1065

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