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Bath Petroleum Storage, Inc. and EIL Petroleum, Inc. - Ruling 4, May 26, 1999

Ruling 4, May 26, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of the Environmental Conservation Law Articles 3, 17, and 23, Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York
and Permits issued pursuant to ECL Article 17, Title 8, and Article 23, Title 13

- by -

E.I.L. Petroleum, Inc.
and
Bath Petroleum Storage, Inc.,

Respondents.

RULING:

Respondents' Motion to Recuse ALJ

DEC No.: R8-1088-97-01

Proceedings

This proceeding was commenced by the Department staff by service of a notice of hearing and complaint dated March 17, 1997 on respondents EIL Petroleum, Inc. and Bath Petroleum Storage, Inc. (collectively, "Bath" herein). Staff subsequently amended the complaint on April 17, 1997. A number of motions have been made since that time and in addition, due to scheduling conflicts, the administrative law judge (ALJ) previously assigned to this matter was substituted by ALJ Goldberger. By letter dated May 7, 1999, respondents by their counsel expressed concern on this appointment and requested that I be recused based upon rulings I had made previously in the permit modification proceedings involving these same parties. By letter dated May 10, 1999, I declined to recuse myself because the rulings I made previously did not indicate that "I have predetermined any of the issues that require adjudication in the pending proceeding."

Apparently because 6 NYCRR § 622.10(b)(2)(iii) and SAPA § 303 provide for the manner that a motion may be made for recusal that includes supporting affidavits, respondents made a more formal motion for recusal that was filed with this office on May 20, 1999. Staff provided their response opposing the respondents' request on May 21, 1999.

DISCUSSION

Although respondents' motion raises a new argument regarding my January 9, 1998 ruling in the state pollutant discharge elimination system (SPDES) permit modification proceeding in which I granted motions to quash Bath's subpoena, I do not find that this ruling provides any basis to reconsider my determination to deny the recusal motion. Respondents argue that the January 9 ruling denying them access to certain information resulted in a short circuiting of their cross-examination of certain witnesses at the SPDES permit modification proceeding. I do not find that this was the case and in fact, the matters upon which they sought discovery were quite tangential to the proceedings at hand. In any case, my ruling was well within the discretion an ALJ has to limit discovery in terms of timeliness and relevancy. Neither the January 9 ruling nor my ruling of August 17, 1998 are indicative of any bias towards the respondents.

In this ruling, I am affirming my determination of May 10, 1999. To the extent that there are issues that were previously decided in the permit modification matter based upon facts that were fully adjudicated and which the parties had an opportunity to fully address, collateral estoppel may bar relitigating those issues. Collateral estoppel is a legal principle whose proper use does not constitute an improper prejudgment of the pleadings. However, prior rulings that were adverse to Bath in another proceeding are not tantamount to bias. Rather, it is apparent that staff will have to put on proof of their claims in the upcoming enforcement hearing and I will ensure that respondents have a full opportunity to rebut them.

CONCLUSION

I affirm my ruling of May 10, 1999 and I deny respondents' motion requesting that I be recused from hearing this matter.

/s/
By: Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
May 26, 1999

TO: John J. Privitera, Esq.
McNamee, Lochner, Titus & Williams, P.C.
75 State Street
P.O. Box 459
Albany, NY 12201-0459

Jerry William Boykin, Esq.
W. Michael Holm, Esq.
Redmon, Boykin & Braswell, L.L.P.
510 King Street, Suite 301
Alexandria, VA 22314

Dominic R. Cordisco, Esq.
NYSDEC
50 Wolf Road
Albany, NY 12233-5500

Lisa Perla Schwartz, Esq.
NYSDEC
6274 East Avon-Lima Road
Avon, NY 14414

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