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Weil, Jeffrey - Ruling, February 14, 2002

Ruling, February 14, 2002

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 Section 650.10(c) of
the Official Compilation of Codes, Rules and Regulations of the State of New York by

RULING: Staff's Motion to Reopen
Record
File No. CO-2-19991918-763

JEFFREY WEIL,

Respondent.

Background and Proceedings

On May 30, 2001, the Department of Environmental Conservation (DEC or Department) staff served a notice of hearing and complaint upon respondent, Jeffrey Weil. Staff seeks to revoke Mr. Weil's Grade 3A and 4A Wastewater Treatment Plant Operator Certificates and obtain payable penalties for alleged negligence, fraud, and deceit committed by the respondent in the performance of his duties pursuant to § 650.10(c) of Title 6 of the New York Compilation of Codes, Rules and Regulations (NYCRR).

The respondent, by his attorney, Mitchell B. Craner, filed an answer dated July 16, 2001. On October 23, 2001, DEC Water Compliance Counsel Scott Crisafulli filed a Statement of Readiness with the Office of Hearings and Mediation Services (OHMS). I convened a hearing on January 29, 2002 at DEC's Region 2 offices in Long Island City. On January 31, 2002, I received a notice of motion by staff to reopen the hearing record to admit certain additional evidence. Staff provides in these motion papers that one of the Department's witnesses, Timothy Miller, unintentionally provided inaccurate testimony and correcting this misinformation is important to the Department's case. The OHMS has not received any response to this motion.

Discussion and Conclusion

The Department's regulations provide that parties have five days after a motion is served to serve a response. 6 NYCRR § 622.6(c)(3). The computation of time limits described in these regulations provide for an additional five days if notification is by ordinary mail. 6 NYCRR § 622.6(a)(i). Staff indicates on its motion papers that it served the enclosed motion by regular mail and by fax on January 31, 2002. Pursuant to the aforementioned regulations, Mr. Weil's response was due on February 11, 2002 given that the tenth day fell on Sunday, the tenth. To date, the OHMS has not received any response from Mr. Weil or his counsel and therefore, I conclude that he has no objection to staff's motion and to the admission of Mr. Miller's affidavit and the annexed exhibits.

Mr. Miller testified at the hearing and gave evidence regarding the process by which DEC certifies wastewater treatment operators. By his affidavit of January 31, he seeks to correct a portion of his testimony regarding whether the title of "Assistant Plant Chief" required a wastewater treatment plant certification. The attachments to his affidavit support his correction.

I find that this information is germane to the proceeding and it is important that the record be accurate.

Based upon the respondent's failure to raise any objections to this evidence and the relevancy of it, I accept the affidavit and its attachments into the record as Exhibits 8, 9, and 10, respectively.

Dated: Albany, New York
February 14, 2002

/s/
Helene G. Goldberger
Administrative Law Judge

TO: Scott Crisafulli
Water Compliance Counsel
NYSDEC - Division of Environmental Enforcement
625 Broadway
Albany, New York 12233-5500

Mitchell B. Craner, Esq.
1 Rockefeller Plaza
New York, New York 10020

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