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Bradley Corporate Park - Ruling 4, March 21, 2002

Ruling 4, March 21, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 12 of the Navigation Law and Article 17 of
the Environmental Conservation Law and Part 613 and 750 et. seq. of Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

- by -

BRADLEY CORPORATE PARK

Respondent

RULING ON MOTION

DEC File No.3-20011031-139

March 21, 2002

Summary

This ruling denies in part and grants in part a Motion for a More Definitive Statement by the Respondent pursuant to 6 NYCRR 622.4(e). As explained below, in three of the four areas where the Respondent sought a more definitive statement, the Complaint contains a concise statement of the matters asserted and is not vague nor ambiguous. In the fourth, the Complaint is vague and ambiguous and the Respondent cannot reasonably be required to frame an answer. DEC Staff is directed to serve an Amended Complaint clarifying paragraph 14 of the Complaint.

Background

This action was commenced by DEC Staff by service of a Notice of Hearing and Complaint dated January 11, 2002. The complaint contains five causes of action for an indeterminate number of violations relating to an underground storage tank (UST) which was discovered to be leaking petroleum in 1994 and which were removed in 1997 from the Respondent's property. On January 25, 2002, Respondent filed a Motion for a More Definitive Statement regarding seven paragraphs in the complaint pursuant to 6 NYCRR 622.4(e). On February 4, 2002, DEC Staff filed an Affirmation in Opposition to the Respondent's motion.

On February 20, 2002, during a conference call with the parties on another matter, Respondent's counsel alleged that the violations alleged in this Complaint had been addressed in an executed Consent Order. In order to expedite this matter, I directed that a copy of this Consent Order be shared with DEC Staff. The Respondent complied and by letter dated March 6, 2002 sent a cover letter with two attachments. The first attachment was a November 6, 1997 letter to the Respondent from the Rockland County Department of Health stating that the UST and contaminated soils had been removed and properly disposed of by a properly DEC licensed contractor. The second attachment is a copy of a consent order between DEC Staff and Chromalloy Gas Turbine Corporation regarding the clean up of an inactive hazardous waste site. After reviewing these documents, DEC Staff has decided not to withdraw the Complaint.

6 NYCRR 622.4(e) states that "the respondent may move for a more definitive statement of the complaint within ten days of completion of service on the grounds that the complaint is so vague or ambiguous that respondent cannot reasonably be required to frame an answer." The Respondent has moved for a more definitive statement regarding paragraphs 11, 14, 15, 16, 17, 18 and 19 (due to a typographical error in the original complaint, this paragraph was entitled "b") of the complaint. The Respondent asserts that these paragraphs are so vague or ambiguous that it is unable to adequately prepare its answer. The Respondent seeks an ruling directing DEC Staff to provide an amended complaint. DEC Staff opposes this motion in all respects. The merits of the arguments regarding the individual paragraphs is discussed below.

PARAGRAPH 11

Paragraph 11 of the complaint is located in a section entitled "FACTUAL AND LEGAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION". It reads:

11. In late 1994, representatives of the County of Rockland Department of Health conducted an inspection of the Site and observed that Respondent maintained a subsurface 9000-10,000 gallon petroleum storage tank, which was observed to be leaking petroleum product into the surrounding soils.

The "Site" is defined in paragraph 10 of the Complaint as "the northerly portion of the Bradley Corporate Park designated as Tax Map Section 88, Block A, Lot 17 on the tax maps maintained by said locality and which lot is also known as the former Chromalloy Site". The leak into the surrounding soils has been characterized as Spill No. 9408479, under the statewide system for reporting spills.

The Respondent contends that the Respondent is unable to determine from the complaint the exact date of the alleged inspection and observations alleged in this paragraph as a result of the vague "...In late 1994" language. As a result cannot frame its affirmative defenses and response in the answer.

In response, DEC Staff argues that the Respondent has failed to explain why the paragraph is vague or ambiguous.

Ruling 1: Paragraph 11 is not vague or ambiguous. The specific dates when the Rockland County Department of Health conducted an inspection is properly a matter for discovery. The Respondent has known about this spill for many years, has taken steps to remove the tank and remove contaminated soils. Under these circumstances the Respondent can reasonably be required to frame an answer.

PARAGRAPH 14

Paragraph 14 is located in a section entitled "FACTUAL AND LEGAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION". It reads:

14. Respondent failed and continues to fail to perform further testing to determine the extent of contamination and to remediate the Site despite repeated demands from the County of Rockland Department of Health (DEC's delegated Petroleum Bulk Storage Authority) and DEC Staff.

The Respondent contends that it is unable to determine when and how many demands were made by the County of Rockland Health Department and DEC from the phrase "repeated demands" and therefore cannot frame its affirmative defenses and response in its answer. DEC Staff opposes the motion.

Ruling 2: Paragraph 14 is vague and ambiguous regarding what the "repeated demands" are. DEC Staff is directed to serve an amended complaint explaining, at least: when were these repeated demands made, to whom, in what form, and what was the authority for these demands.

PARAGRAPHS 15 and 16

Paragraph 15 is the first cause of action and reads:

15. On or before January 1, 1995 a discharge of petroleum product occurred at Respondent's facility in violation of §173 of the Navigation Law (Spill No. 9408479).

Paragraph 16 is the second cause of action and reads:

16. On or before January 1, 1995 Respondent directly or indirectly threw, drained, ran or otherwise discharged petroleum from Respondent's facility into the waters of the State of New York, that caused or contributed to a contravention of water quality standards adopted by the Department pursuant to Section 17-0301 of the ECL, in violation of section 17-0501 of the ECL.

The Respondent alleges that the inclusion of the phrase "on or before January 1, 1995" in paragraphs 15 and 16 is vague and ambiguous and that more specificity is required as to the particular date. This specificity is needed because when the tank was installed in 1966, the Respondent did not own the site of the violation and therefore cannot frame its affirmative defenses and response in its answer.

DEC Staff opposes this motion and states that the spill must have occurred at some point or over some period of time prior to the discovery of the observable effects of the oil spill by the Rockland County Health Department. Further, DEC Staff states it believes there was only one UST at the site and there can be no confusion regarding the spill given the Respondent's actions in removing the tank and removing contaminated soils.

Ruling 3: The phrase "on or before January 1, 1995" as used in paragraphs 15 and 16 of the Complaint is not vague or ambiguous. The Respondent can reasonably be required to frame an answer given its affirmative steps to remedy the spill. The fact that no exact date is given for the spill relates to the nature of oil leaks from USTs which can occur unnoticed for many months or years until they are discovered.

PARAGRAPHS 17, 18, 19

Paragraph 17 is the third cause of action and reads:

17. Upon information and belief Respondent failed to register the underground tank for the periods of December 27, 1986 through September 17, 1995 and December 28, 1996 through June 17, 1997, resulting in multiple violations of ECL Article 17 and 6 NYCRR §612.2.

Paragraph 18 is the fourth cause of action and reads:

18. Upon information and belief, during the period commencing December 27, 1986 through June 17, 1997, Respondent failed to conduct the periodic tightness testing of the underground storage tank required by ECL Article 17 and 6 NYCRR §613.5 in 1976, 1981, 1981, 1986, and 1996 and is liable for each such violation.

Paragraph 19 (in the original complaint "b" but amended per February 21, 2002 letter from DEC Staff) is the fifth cause of action and reads:

19. Upon information and belief during the period commencing December 17, 1986 through June 17, 1997 Respondent on multiple occasions failed to keep and maintain daily inventory records for the purpose of detecting leaks as required by ECL Article 17 and 6 NYCRR §612.4 and is liable for multiple violations thereof.

The Respondent alleges that the phrase "upon information and belief" contained in these paragraphs is vague and ambiguous and as a result the Respondent cannot frame its affirmative defenses and response in its answer.

DEC Staff opposes the motion and states that it is at a loss to understand the Respondent's objection.

In the context of these paragraphs, the phrase "upon information and belief" doesn't affect the clarity of these causes of action. Each paragraph explicitly sets forth the alleged violations, the time of the alleged violations and the statutory and regulatory authority that created the duty which DEC Staff has alleged is breached. The language does not affect DEC Staff's burden of proof on all charges and matters asserted in the Complaint.

Ruling 4: Paragraphs 17, 18 and 19 are not vague or ambiguous and there is enough information in each paragraph to reasonably require the Respondent to phrase an answer.

Conclusion

Pursuant to 6 NYCRR 622.4(e)(2), DEC Staff must serve an Amended Complaint within fifteen days of receipt of this ruling and the Respondent must serve an answer within twenty days of the receipt of the amended complaint.

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

Dated: Albany, New York
March 21, 2002

TO: Steven Goverman, Esq.
Assistant Regional Attorney
NYSDEC, Region 3
21 South Putt Corners Road
New Paltz, NY 12561-1696

Burton I. Dorfman, Esq.
Dennis E. A. Lynch, Esq.
Dorfman, Lynch & Knoebel
Attorneys at Law
51 North Broadway
Nyack, NY 10960

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