UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OF )
)
RICHARD M. STERN, REGINA STERN, ) DOCKET NO. 5-TSCA-97-007
LYNDA COSLOV, JUDY S. GUTTMAN, )
Co-Executors of the Estate of )
Ernest Stern, AND )
MICHAEL J. MANUSZAK, Ancillary )
Administrator of the Estate of )
Ernest Stern, )
)
)
RESPONDENTS )
ORDER GRANTING MOTION TO AMEND COMPLAINT
The Complainant's "Motion to Amend Complaint" is Granted.(1) In
this motion filed on August 5, 1997, the Complainant moves to amend
the Complaint and to reduce the amount of the proposed civil
administrative penalty from $177,000 to $142,000. The Respondents
have not responded to the motion to amend the Complaint. See
Sections 22.14(d) and 22.16(b) of the Consolidated Rules of
Practice Governing the Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits ("Rules of Practice").
Section 22.14(d) of the Rules of Practice provides that the
Complainant may amend the Complaint upon motion granted by the
Presiding Officer.(2) However, the Rules of Practice provide no
standard for determining when leave to amend should be granted. I
note that Rule 15(a) of the Federal Rules of Civil Procedure
concerning amended pleadings provides that "leave [to amend] shall
be freely given when justice so requires."(3) The United States
Supreme Court has interpreted this Rule to mean that there should
be a "strong liberality...in allowing amendments" to pleadings.
Forman v. Davis, 371 U.S. 178 (1962). Leave to amend pleadings
under Rule 15(a) should be given freely in the absence of any
apparent or declared reason, such as undue delay, bad faith, or
dilatory motive on the movant's part, repeated failure to cure
deficiencies by previous amendment, undue prejudice, or futility of
amendment. Id.
In the case before me, the Respondents have not responded to
the motion to amend the Complaint. Pursuant to Section 22.16(b) of
the Rules of Practice, if no response to a written motion is filed
within the designated period, the parties may be deemed to have
waived any objection to the granting of the motion. In the instant
case, the designated response period of 20 days elapsed on
September 2, 1997. Sections 22.06 and 22.14(d) of the Rules of
Practice. Inasmuch as the Respondents are deemed to have waived
any objection to the granting of the motion and there is no
apparent reason to deny the motion to amend the Complaint, the
motion is granted. The granting of this motion is subject to the
Complainant filing its First Amended Complaint.
original signed by undersigned
_____________________________
Barbara A. Gunning
Administrative Law Judge
Dated: 9-03-97
Washington, DC
1. The Complainant has failed to file the First Amended
Complaint.
2. The term "Presiding Officer" means the Administrative Law
Judge designated by the Chief Administrative Law Judge to serve as
the Presiding Officer. Section 22.03(a) of the Rules of Practice.
3. The Federal Rules of Civil Procedure are not binding on
administrative agencies but many times these rules provide useful
and instructive guidance in applying the Rules of Practice. See
Oak Tree Farm Dairy, Inc. v. Block, 544 F. Supp. 1351, 1356 n. 3
(E.D.N.Y. 1982); In re Wego Chemical & Mineral Corporation, TSCA
Appeal No. 92-4, at 13 n. 10 (EAB, Feb.24, 1993).