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Bonide Products, Inc. - Ruling 2, October 4, 2000

Ruling 2, October 4, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 33 and 71 of
the New York State Environmental Conservation Law (ECL),
and Parts 325 and 326 of Title 6 of the Official compilation of Codes, Rules and Regulations
of the State of New York (NYCRR)

- by -

BONIDE PRODUCTS, INC.

Respondents

Ruling on Motion for More Definite Statement

Case Nos.
CO 1-19990622-770
CO 3-19990662-771
CO 4-19990662-772
CO 5-19990662-773
CO 6-19990662-774
CO 7-19990662-777
CO 8-19990662-775
CO 9-19990662-776

Proceedings

This matter was commenced by DEC Staff by a Notice of Hearing, Pre-Hearing Conference and Verified Complaint dated April 21, 2000. The Respondent's Answer was served upon DEC Staff on June 22, 2000. The Answer includes 8 affirmative defenses.

On June 23, 2000, DEC Staff filed a Motion for a More Definite Statement. In its Affirmation in Support of NYSDEC's Motion for Clarification of Affirmative Defenses, DEC Staff asserted that the affirmative defenses put forth by the Respondent were so vague and ambiguous that DEC Staff was not placed on notice of the facts of legal theory upon which the Respondent's defenses are based. Accordingly, DEC Staff requested, pursuant to 6 NYCRR Part 622.4(f) and 622.6(c), that I direct the Respondent to answer each of fourteen questions attached to the Motion.

The Respondent responded to DEC Staff's Motion with an Affirmation in Opposition to DEC's Motion For Clarification of Affirmative Defenses dated June 30, 2000. In this Affirmation, the Respondent requested that DEC Staff's Motion be denied.

DEC Staff replied to this Affirmation, without seeking the permission of the ALJ to do so, with a Reply Affirmation in Support of DEC's Motion for Clarification of Affirmative Defenses dated July 10, 2000. In this Reply Affirmation, DEC Staff argued that the original Motion should be granted and that the Respondent should be further directed to answer an additional eight questions to further clarify the affirmative defenses contained within the Answer.

On July 14, 2000, Respondent sent an e-mail to both the ALJ and DEC Staff noting that 6 NYCRR 622.6(c)(3) does not permit additional responsive pleadings without the permission of the ALJ and if such permission were granted, the Respondent requested until July 19, 2000 to respond to DEC's Motion for Clarification of Affirmative Defenses. On July 14, 2000, I granted such extension of time. The Respondent filed a Sur-Reply Affirmation in Opposition to DEC's Motion for a Clarification of the Affirmative Defenses dated July 19, 2000.

I did not rule on DEC's Motion because, at that time, negotiations were continuing between the parties. However, negotiations between the parties seem to have become stalled and it is now appropriate to rule on DEC's Motion dated June 23, 2000.

Merits of the Motion

DEC Staff alleges that the affirmative defenses in the Respondent's Answer are so vague and ambiguous that DEC Staff is not placed on notice of the facts or legal theory upon which the Respondent's defenses are based. This is the standard found in 6 NYCRR Part 622.4 for requesting clarification for affirmative defenses. The Respondent, in its two Affirmations in Opposition to the Motion did provide some additional information regarding the facts underlying the affirmative defenses but alleges that most of the requested clarifications were actually requests for evidentiary material.

Upon review of the affirmative defenses contained in the Respondent's Answer, I find that:

  1. As to the First Affirmative Defense, that the Respondent has failed to provide adequate facts and legal theory to place DEC Staff on notice regarding the basis for this Affirmative Defense.
  2. As to the Second Affirmative Defense, that the Respondent has failed to provide adequate facts and legal theory to place DEC Staff on notice regarding the basis for this Affirmative Defense.
  3. As to the Third Affirmative Defense, that the Respondent has failed to provide adequate facts to place DEC Staff on notice regarding the basis for this Affirmative Defense.
  4. As to the Sixth Affirmative Defense, that the Respondent has failed to provide adequate facts to place DEC Staff on notice regarding the basis for this Affirmative Defense.
  5. The other Affirmative Defenses are not vague or unambiguous and DEC Staff is placed on notice of the facts and legal theory upon which the Respondent's defense is based.

Conclusion

The DEC's Motion for a More Definitive Statement is partially granted and partially denied, as detailed above. The Respondent is ordered to provide a more definitive statement regarding the First, Second, Third and Sixth Affirmative Defenses. The Respondent may use the questions provided by DEC Staff as a guide for developing its More Definite Statement, however, explicit answers to the questions are not required. The deadline for submission of such More Definitive Statement shall be October 13, 2000.

_____________/s/_____________
By: P. Nicholas Garlick
Administrative Law Judge

Dated: October 4, 2000
Albany, New York

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