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Whistle Tree Development Corporation, Inc - Ruling, March 14, 2003

Ruling, March 14, 2003


In the Matter of the Notice of Intent to Revoke
State Pollutant Discharge Elimination System
(SPDES) Permit No. NY-0030821

Whistle Tree Development Corporation, Inc.


March 14, 2003


With a cover memorandum dated February 6, 2003, the Region 4 Department Staff forwarded a hearing request to the Office of Hearings and Mediation Services concerning the captioned matter. On February 12, 2003, the matter was assigned to Administrative Law Judge (ALJ) Daniel P. O'Connell. On that date, I telephoned the Permittee's counsel, Robert H. Feller, Esq., to schedule the hearing.

During the telephone call, Mr Feller stated there was a preliminary issue about whether the Department had properly obtained jurisdiction over the Whistle Tree Development Corporation. I instructed Mr. Feller to file a motion that explained his position. With a cover letter dated March 5, 2003, Mr. Feller filed a motion. The Department Staff, which is represented by Christopher J. Ritaccio, Esq., Senior Attorney, filed a response dated and received on March 10, 2003.

Subsequently, with a cover letter dated and received on March 13, 2003, the Permittee withdrew its motion concerning personal jurisdiction and filed a different motion concerning the Department's obligation to commence a hearing. I make this ruling before receiving a reply from the Department Staff.


Referring to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6NYCRR) §621.14, the Permittee correctly points out that the Permittee should have been notified of a hearing date within 15 calendar days from the Department's receipt of its request for a hearing, and that the hearing should commence within 60 days of the request. As relief, the Permittee requests that I direct the Staff to refile the Notice of Intent to Revoke and proceed within the stated time frames after the Permittee exercises its right to a hearing.

I deny this request. Although every effort must be made to comply with all regulatory provisions including the time frames outlined in §621.14, these particular time frames are directory rather than mandatory. No sanction is associated with the Department's failure to comply with the time frames outlined in §621.14.

Since the Department is attempting to revoke the Permittee's SPDES permit, the relatively short delay in commencing the hearing does not prejudice the Permittee. It still has a valid SPDES permit, and will continue to have one at least until the Commissioner makes a final determination after the hearing is held.

The parties shall confer to determine a hearing date. The parties shall reserve at least two consecutive dates. I am available during the weeks of March 17 (on March 19 only after noon), March 24, March 31 (except for April 2), April 15-18, and the week of April 28, 2003. The parties shall inform me of their availability as soon as possible, but no later than March 20, 2003. The Department Staff shall arrange for a hearing room and a stenographer.

A copy of this ruling will be sent to both parties via e-mail and by regular mail.

Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
March 14, 2003

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

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

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