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Doran, Martin H. and Almag Construction, Inc. - Ruling, October 16, 2001

Ruling, October 16, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Violations of Article 27 of the Environmental Conservation Law and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR)

- by -

Martin H. Doran
Almag Construction, Inc.
William Stroffoleno

Respondents

Ruling on Motion to Compel Disclosure

DEC Case No. R4-2254-12-99

Summary

This ruling grants the Department's June 5, 2001 motion to compel the Respondents in the captioned matter to disclose the documents described in the Department's notice to produce dated February 27, 2001.

Discussion and Ruling

The Department commenced the captioned administrative enforcement matter by duly serving copies of a notice of hearing and complaint upon Respondent William Stroffoleno on November 10, 2000, and upon Respondents Martin Doran and Almag Construction, Inc. on November 16, 2000. In the complaint dated November 7, 2000, the Department asserts that the Respondents are operating a solid waste management facility without a permit from the Department in violation of 6 NYCRR 360-1.7(a)(i) and §360-13.1(b). The Respondents have allegedly discarded more than 100,000 tires, 21 trailers, and other solid waste in the form of construction and demolition (C&D) debris on a site located off Route 67 in the Town of Pittstown, Rensselaer County.

On December 5, 2000, the Respondents and representatives of the Department participated in a pre-hearing conference, held pursuant to 6 NYCRR 622.8, at the Department's Region 4 Offices. Subsequently, Respondents Doran and Stoffoleno filed answers. Mr. Doran's answer, dated February 8, 2001, states that he has not been an officer of Almag Construction. Mr. Stoffoleno similarly states in his answer, dated February 9, 2001, that he has never been an officer or employee of Almag Construction.

The Department's Uniform Enforcement Hearing Procedures authorize discovery [§622.7]. On March 11, 2001, the Department personally served the Respondents with copies of a notice to produce dated February 27, 2001. The Department requested information about Almag Construction, its officers and employees, as well as consultants and contractors who were hired by Almag. The Department also requested income tax and sales tax records.

A party against whom discovery is demanded may make a motion to the ALJ for a protective order within ten days of receipt of the discovery demand [§622.7(c)(1)]. By March 21, 2001, the Respondents should have either replied to the Department's notice to produce, or moved for a protective order. Based on Attorney Lapinski's affidavit, the Respondents did neither.

If a party does not comply with a discovery demand without making a timely objection, then the proponent of the discovery demand may apply to the ALJ to compel disclosure [§622.7(c)(2)]. With a cover letter dated June 5, 2001, the Department moved for an order compelling the Respondents to disclose the documents requested in the Department's February 27, 2001 notice to produce. To date, the Respondents have not replied to the Department's June 5, 2001 motion. A timely response to the Department's June 5, 2001 motion to compel was due by June 15, 2001 [§622.6(b)(2)(i)]. Consequently, the Respondents have not filed a timely response.

Therefore, I grant the Department's motion to compel disclosure. Accordingly, I direct the Respondents to reply to the Department's February 27, 2001 notice to produce within ten calendar days from receipt of this ruling.

_____________/s/_____________
Daniel P. O'Connell
Administrative Law Judge
NYS Department of Environmental Conservation
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550
Telephone: 518-438-7633

Dated: Albany, New York
July 1, 2001

To: Attached Service List dated June 28, 2001

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