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Bonide Products, Inc. - Ruling on Expedited Appeal, June 5, 2001

Ruling on Expedited Appeal, June 5, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1010
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.

Respondent

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

RULING ON EXPEDITED APPEAL

June 5, 2001

RULING ON EXPEDITED APPEAL

This matter relates to a motion by Bonide Products, Inc., ("Respondent") for leave to file an expedited appeal of a ruling by Administrative Law Judge ("ALJ") P. Nicholas Garlick dated March 14, 2001. The ALJ's rulings arise from an enforcement proceeding commenced by Department Staff of the New York State Department of Environmental Conservation ("DEC") alleging numerous violations of the Environmental Conservation Law ("ECL") related to the manufacture, distribution and sale of pesticides by Respondent.

6 NYCRR § 622.10(d) sets forth the rules for appealing an ALJ's ruling to the commissioner on an expedited basis. 6 NYCRR § 622.10(d)(2)(ii) states that leave to file an expedited appeal may be granted where it is demonstrated that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. Notably, the rule states further that "in all such cases, the commissioner's determination to entertain the appeal is discretionary." 6 NYCRR § 622.10(d)(2)(ii).

Upon a review of the notice of Respondent's motion for leave to appeal dated March 23, 2001, the affirmation and brief in support of the motion dated March 23, 2001 and the letter in opposition to Respondent's motion from Department Staff dated March 27, 2001, the motion is denied.

The ALJ's rulings issued March 14, 2001, which are predominantly procedural in nature, are thoroughly explained in his thirteen page ruling. Specifically, the ALJ denied Respondent's motion to dismiss certain causes of action, motion for a case management order, request to depose current and former DEC employees and request for pre-filed testimony. The ALJ's rulings also removed a stay on discovery in the proceeding and directed that discovery recommence. Respondent's papers in support of its motion for leave to file an expedited appeal do not, however, demonstrate "undue prejudice" to the Respondent or "significant inefficiency" in the hearing process if the motion for leave is denied. A review of Respondent's papers, particularly the brief filed in support of the motion, indicate that Respondent is using a motion for leave to file an expedited appeal as a vehicle to rehash legal arguments raised and rejected by the ALJ. Compare ALJ's Rulings at 5-6 (ALJ's denial of motion to dismiss certain causes of action based upon alleged misbranding) with Respondent's Brief at 3-10, (Respondent's assertions that label and text on Respondent's products did not constitute misbranding); ALJ's Rulings at 9 (regarding the sale of pesticides after registration has expired) with Respondent's Brief at 11-16. Accordingly, the motion for leave to file an expedited appeal fails to demonstrate "undue prejudice" or "significant inefficiency" and must be denied.

Respondent further argues that the ALJ erred by denying its requests for a case management order, to depose certain persons and to use pre-filed testimony. These arguments are without merit. The ALJ acted within his authority and performed consistent with the duties imposed on him by regulations. See 6 NYCRR §§ 622.10(a), (b). Moreover, where is it clear, as here, that the ALJ acted within his discretion in rendering, in large part, procedural rulings, considerable deference to the ALJ's judgment is entirely appropriate. Accordingly, the ALJ's rulings will not be disturbed.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
June 5, 2001

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