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Whistle Tree Development Corporation, Inc - Ruling 2, April 4, 2003

Ruling 2, April 4, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
the Notice of Intent to Revoke State Pollutant Discharge Elimination System (SPDES)

Permit No. NY-0030821

Ruling on Permittee's Motion
For a More Definite Statement

Whistle Tree Development Corporation, Inc.
PERMITTEE

April 4, 2003

Proceedings

With a cover letter dated March 19, 2003, the Permittee filed a motion for a more definite statement of the Department Staff's December 17, 2002 notice of intent to revoke. The Permittee made its request pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6NYCRR) 622.4.

The DEC Staff filed a notice in opposition to the Permittee's motion and an affirmation by Christopher J. Ritaccio, Esq., dated March 26, 2003. For the reasons discussed further below, the Staff opposes the Permittee's motion.

In a letter dated March 31, 2003, the Permittee replied to Mr. Ritaccio's affirmation.

Discussion and Ruling

According to the Permittee, the notice of intent to revoke is vague and ambiguous. The Permittee requested an order that would direct the Department Staff either to clarify the December 17, 2002 revocation notice, or to respond to written interrogatories attached as

Exhibit A to the Permittee's motion papers. The Permittee contended that the notice does not specify on which dates the incidents described therein allegedly occurred. The Permittee contended further that the notice does not specify which statutes and rules the Permittee allegedly violated. Without this relief, the Permittee argued that it would be severely prejudiced.

The DEC Staff argued that the Permittee is not entitled to the requested relief. The Staff objected to the Permittee's characterization that the December 17, 2003 revocation notice is equivalent to a notice of hearing or a complaint. To revoke a permit, the Staff contended that the Department may proceed in two ways. First, the Staff asserted that the Department may move to revoke a permit based on violations. Second, the Department may revoke a permit based on violations and seek civil penalties for the alleged violations. According to the Staff, the Department must serve a notice of hearing and complaint upon a permittee/respondent only if the Department seeks civil penalties. The Staff contended that the Permittee's arguments would apply only to the second option. Since the Staff is relying on the first option with respect to the captioned matter, the Staff argued there is no legal basis for granting the Permittee's clarification request. For similar reasons, the Staff argued that I should also deny the Permittee's request for leave to file interrogatories.

The Staff argued further that the Permittee would not be prejudiced if its request for either clarification of the revocation notice, or leave to file interrogatories is denied. According to the Staff, the Permittee already has all the requested information because the Department provided the information to the Permittee in response to discovery demands made during the pending CPLR Article 78 proceeding. The pending court proceeding seeks judicial review of the Department's determination to deny the Permittee a variance with respect to the SPDES permit, which is the subject of this proceeding.

In the Permittee's reply letter dated March 31, 2003, the Permittee complained that the Department Staff's response to its motion was late, and requested that I disregard it. The Permittee denied the Staff's assertion that the Permittee has the information it requested.

Upon consideration of the Permittee's motion dated March 19, 2003, the Department Staff's response dated March 26, 2003 and the Permittee's reply letter dated March 31, 2003, I rule as follows. Pursuant to .621.14(a), the Department may revoke a permit at any time. Section 621.14(a) outlines the bases for revocation, which include, among other grounds, materially false or inaccurate statements in the permit application, failure by the permittee to comply with any terms or conditions of its permit, and noncompliance with previously issued permit conditions, provisions of the Environmental Conservation Law (ECL) or implementing regulations. The notice of intent to revoke must state the alleged facts or conduct supporting the revocation [.621.14(b)].

In response to a revocation notice, a permittee may submit a written statement giving reasons why the Department should not revoke the permit, request a hearing, or both [.621.14(d)]. If a permittee requests a hearing and if the subject of the hearing concerns a State Pollutant Discharge Elimination System (SPDES) permit, .621.14(e)(2) requires that the hearing commence not later than 60 calendar days, but not earlier than 30 days. I conclude, therefore, that when a hearing is requested, .621.14 requires it to commence expeditiously.

Part 621 does not specify any additional hearing procedures. Rather, the applicability criteria outlined in .622.1 and .624.1 must be considered. Section 622.1(a)(6) provides that the hearing procedures outlined in Part 622 apply to revocation hearings where, as here, the basis for the revocation includes alleged violations of the ECL, the regulations or permit conditions. In instances where the hearing procedures outlined in Part 622 will be used, .622.3(b)(2) states that the notice of intent to revoke "shall take the place of a complaint," and that the permittee's request for a hearing "shall take the place of an answer." Nothing in Part 622 indicates that the requirement in .621.14 to commence the hearing expeditiously when it has been requested is superceded.

The Permittee's reliance at this time on .622.4(e) as the basis to seek clarification of the revocation notice is misplaced. Section 622.4(e) outlines procedures for obtaining clarification of a complaint before an answer is filed. Even assuming without deciding that the .622.4(e) pre-answer procedures are available in the context of a .621.14 revocation hearing, the Permittee has already requested a hearing, and by operation of .622.3(b)(2), answered the revocation notice. As a result, the pre-answer procedures outlined in .622.4(e) are not available to the Permittee now.

Given the procedural context in which the Permittee's present motion was made, its request is more properly viewed as a motion for relief pursuant to .622.6(c). I have discretion pursuant to ..622.10(b)(i) and (x) to so view the request. Upon review of the Department's December 17, 2003 notice of revocation, I conclude that only Item D does not contain sufficient facts or reasons to support the request [See .621.14(b)]. To provide the Permittee with a sufficient statement of the facts supporting the violations alleged in Item D, the Department shall identify what effluent limits have been allegedly violated and when these alleged violations occurred. The Department shall also identify which discharge monitoring reports (DMR's) were untimely filed, and the alleged unauthorized individuals who signed and filed them. The Department shall provide this information to the Permittee within seven calendar days from the date of this ruling.

All other relief requested by the Permittee in its motion dated March 19, 2003 is denied.

Finally, notice is hereby given that the hearing in this matter will commence at 10:00 a.m. on May 5, 2003, and will continue from day to day as necessary. The Department Staff is directed to reserve a location and to retain a stenographer for the hearing. By April 28, 2003, the Staff shall inform the Pe rmittee's counsel and me where the hearing will be held.

/s/
______________________________
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
April 4, 2003

To: Robert H. Feller, Esq.
Nolan & Heller, LLP
39 North Pearl Street
Albany, New York 12207

Christopher Ritaccio, Esq.
Senior Attorney
Division of Environmental Enforcement
NYS Department of Environmental Conservation
625 Broadway
Albany, New York 12233-5500

Susan D. Adams, Esq
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007-2601

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