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Charon Marine Industries Inc. - Ruling, August 18, 2003

Ruling, August 18, 2003

STATE OF NEW YORK : DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
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In the Matter of the Alleged Violation of Article 33
of the Environmental Conservation Law and Parts 325 and
326 of Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York by

CHARON MARINE INDUSTRIES, INC. AND ROY
K. FLOOD, individually and as principal officer
of CHARON MARINE INDUSTRIES, INC.
Respondents

RULING ON MOTION FOR PROTECTIVE ORDER
R1-20021118-260

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Procedural Background

The New York State Department of Environmental Conservation (DEC Staff, Department) commenced this action pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 622 by service of a Notice of Hearing and Complaint on Charon Marine Industries, Inc and Roy K. Flood (Respondents). An Answer was timely served by Respondents. DEC Staff is represented by Galen D. Wilcox, Esq., assistant regional attorney and the Respondents are represented by Genevieve LoPresti, Esq.

DEC Staff filed a copy of the Notice of Hearing and Complaint on the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge ("ALJ") Molly T. McBride.

Respondents served the following discovery demands on DEC Staff on May 21, 2003: Expert Interrogatories, Notice to Take Deposition, Demand for Verified Bill of Particulars, Notice for Discovery and Inspection. DEC Staff served a Notice of Motion for Protective Order with regards to the majority of the demands on May 30, 2003. The following were submitted in support of the motion: Affirmation of Galen D. Wilcox, Esq and Affidavit of Anthony Lamanno, Department Pesticide Control Specialist III. Respondent served the Affirmation of Genevieve LoPresti in opposition to the motion on July 9, 2003 and on July 28, 2003 DEC Staff served the Affirmation of Galen Wilcox in response to Respondent's July 9, 2003 Affirmation.

Background

Respondents own a marina located in Freeport, Nassau County, NY. The Respondents submitted to the Department a Commercial Applicator and Technician Pesticide Use Annual Report for the year 2000. The report indicated that one of the Respondents' employees applied anti-foulant paints to customers' boats at a time when the Respondents' business registration and the applicator's certification had lapsed. DEC Staff conducted a pesticide inspection of the business on October 3 & 4, 2001. At the inspection DEC Staff observed that the Respondents had on the premises anti-foulant paints that were not registered as a pesticide with the State, although they should have been. (Respondents have sought to suppress the evidence of this violation claiming that the search that led to the discovery is unconstitutional) DEC Staff alleges that Respondents violated the Environmental Conservation Law ("ECL") Article 33 and 6 NYCRR Parts 325 and 326 in that anti-fouling paints classified as pesticides were applied to customers boats at the marina by a person who did not possess the required pesticide applicator certification; that certain pesticides were on the premises that were not registered with the Department; that pesticide application reports that are to be maintained by an applicator were not available when requested by DEC Staff at the inspection.

Staff's Position

DEC Staff has moved for a Protective Order with respect to the discovery demands served by Respondents. DEC Staff asserts that 6 NYCRR 622.7 precludes the extensive discovery sought in this matter.

Respondents' Position

Respondents claim that the discovery sought is necessary to defend the Respondents properly and that "fundamental fairness dictates that a party be provided an opportunity to know what evidence is offered or considered."

Discussion

This enforcement action was brought under Part 622 and as such, the discovery provisions of Part 622 are controlling. Section 622.7(a) allows for discovery in DEC enforcement proceedings to be as broad as provided under Article 31 of the New York Civil Practice Law and Rules (CPLR). The CPLR provides that "there shall be full disclosure of all evidence material and necessary to the prosecution or defense of an action" by a party "upon notice stating the circumstances or reasons why such disclosure is sought" (CPLR §3101). Pursuant to 6 NYCRR § 622.7(c) a party may seek a protective order to deny or limit the use of any disclosure device "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." What discovery documents are "material and necessary" in an action is determined by a test of usefulness and reason. Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 407 (1968). The documents that meet this test will be those that would logically be obtained to prepare for a hearing. Id., 21 NY 2d at 407.

Discovery Demands

A. Bill of Particulars Section 622.7(3) precludes the use of Bills of Particular and the motion is granted with respect to this discovery demand.

B. Notice to Take Deposition 6 NYCRR 622.7(2) allows for depositions only with consent of the ALJ and a finding that they are likely to expedite the proceedings. In this case the Notice to Take Deposition is very broad in its identification of who is to be deposed: "The New York State Department of Environmental Conservation, the agents, servants, or employees of said parties having knowledge of the subject matter concerning all of the relevant facts and circumstances in connection with the issues alleged." Respondents contend that deposing the involved DEC employees would narrow the issues and expedite the process. DEC staff seeks the protective order because it states that the Notice is too broad to identify who should be produced and also, that Respondents have not demonstrated how the proceeding would be expedited by a deposition.

Both parties were allowed to supplement their pleadings to respond to the other party's papers. DEC Staff noted in its motion papers that Respondents must demonstrate how the deposition would expedite the process. In supplemental papers this was not addressed by Respondents except in the most general of terms.

Both DEC Staff members who conducted the inspection have submitted several affidavits detailing what took place at the inspection. Also, Respondent Flood was personally present at the inspections.

I do not see how the taking of a deposition would assist in expediting this process. Based upon ths lack of information provided by Respondents on how this would assist their case and the general infrequency of such discovery in administrative proceedings, I am granting the motion for a protective order with regard to the Notice to Take Deposition.

C. Expert Interrogatories DEC Staff argues again that the Respondents have not made a showing of how the interrogatories would expedite the hearing process. There are 3 interrogatories posed. The first two are regarding any experts consulted by the Department. CPLR 3101 requires the disclosure of information regarding expert witnesses that a party intends to call at trial, not merely experts consulted. I agree with Respondents' position that information about the Department's expert witnesses is important and will assist in the hearing proceeding smoothly. DEC Staff's motion is granted with respect to the first two interrogatories. The motion is denied with respect to the third interrogatory which asks for the name and information about any expert to be called at the hearing by the Department This is information that the Respondents are entitled to. However, DEC Staff indicated in the affirmation of Galen Wilcox dated July 28, 2003 that they do not intend to call any expert witnesses at the hearing in this matter. Therefore, this issue is resolved.

D. Notice for Discovery and Inspection Respondents served a Notice for Discovery and Inspection and DEC Staff has moved for a Protective Order with respect to one of eight demands only. DEC Staff stated that they intend to respond to the remaining demands. DEC Staff seeks a protective order with respect to the demand that it produce "true and complete copies of all other complaints filed by petitioner for the past three years against businesses and/or persons for the same and/or similar violations issued against the Petitioner (sic) and transcripts and/or records of their outcome, including fines imposed." DEC Staff contends that the information is irrelevant in that it would not tend to prove or disprove the allegations in the Complaint. DEC Staff also argues that the demand is unduly burdensome in that the Respondents have been charged with five violations and to produce all same or similar violations in the past three years would be an undue burden on the Department.

Respondents contend that the information is relevant and it will provide useful information to determine the severity of the charges posed against them and the manner in which they should proceed.

I fail to see how the Respondents would better understand the severity of the charges against them if they were able to review Department files on similar or same violations. The ECL and the regulations that Respondents are alleged to have violated provide sufficient information about the violations and the potential penalties. Also, as noted by DEC Staff, legal research could provide some guidance to the Respondents as to outcomes in similar matters that went to hearing.

I am not persuaded by the argument of Respondents that this information would help them to prepare by better understanding the seriousness of the alleged violations and Respondents have made no other arguments as to why the documents are material and necessary to prepare for the defense of this matter.

I am granting DEC Staff's motion for a protective order with respect to the Notice for Discovery and Inspection.

Conclusion

The motion is granted with respect to the Notice to Take Deposition, Notice for Discovery and Inspection and Bill of Particulars. The motion is granted in part with respect to the Expert Interrogatories, as detailed above.

_____________/s/_______________
Molly T. McBride
Administrative Law Judge

Albany, New York
August 18, 2003

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