ExxonMobil Corporation (New Windsor) - Ruling, December 22, 2003
Ruling, December 22, 2003
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of Alleged Violations of
Article 17 of the Environmental Conservation
Law and Article 12 of the Navigation Law by
RULING OF THE ADMINISTRATIVE LAW JUDGE
RESPONDENT'S MOTION FOR PROTECTIVE ORDER
Case No. 3-1480
Department of Environmental Conservation (DEC or Department) staff issued a notice of hearing and complaint to the respondent ExxonMobil Corporation dated June 21, 2002. In this pleading, staff alleged that the respondent violated Environmental Conservation Law (ECL) §§ 17-0105 and 17-1743 and Navigation Law (NL) § 173, 175, and 176 by discharging petroleum into the waters of the State, failing to immediately undertake action to contain the petroleum discharge, and failing to timely report the petroleum discharge in accordance with § 613.8 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR). This enforcement matter involves a major oil storage facility in New Windsor, New York owned by the respondent.
The parties entered into a Consent Order dated July 9, 2003 that resolved the remediation issues in this proceeding while reserving to staff the ability to pursue civil penalties. The parties have exchanged discovery requests and staff's demand dated November 20, 2003 has given rise to this motion by the respondent.
In its discovery request, staff has asked the respondent to produce records related to spills at the facility during the period from January 1, 1996 and ending November 20, 2003. In its motion for a protective order dated December 8, 2003, ExxonMobil opposes this request based upon relevancy and burden. Staff responds by arguing that ¶ 9 of the complaint states that, "[r]espondent is considered a responsible party for numerous petroleum discharges at the facility including those reported on 5/19/00 and 3/20/02." Staff maintains that the complaint is not limited to the allegations with respect to the two identified spills and in any case, the dates cited do not necessarily indicate when the spills occurred but only when they were discovered. In addition, staff states that since it is providing "all records in the Department's files for this facility, Staff's requests are certainly more limited to [sic] that." Staff argues that ExxonMobil has not produced information with respect to spills that would account for the contamination currently on the ground and this information is necessary to remediate the site. Moreover, staff contends that information relating to prior spills would relate directly to penalties pursuant to the Department's civil penalty policy.
The respondent argues that the records sought go far beyond the sole issue of penalties in this matter that relate to the two specifically alleged spills in 2000 and 2002. The respondent maintains that the demand by staff is burdensome and harassing particularly in light of staff's failure to produce the documents sought by the respondent relating to the manner in which the penalty was calculated. ExxonMobil also contends that much of what staff seeks has already been provided in the normal course of operation of the respondent's facility and as part of negotiating the Corrective Action Plan.
Section 622.7(a) of NYCRR allows discovery in DEC enforcement proceedings to be as broad as provided under Article 31 of the Civil Practice Law and Rules. What discovery documents are "material and necessary" to the prosecution or defense of an action is determined by a test of usefulness and reason. Allen v. Crowell-Collier Publ., 21 NY2d 403, 407 (1968). The burden of meeting discovery requirements must be weighed against the benefits that information will provide the seeker. Andon v. 302-304 Mott St. Associates, 94 NY2d 740, 746 (2000).
I find that staff's demand for records concerning alleged spills that occurred on the site from 1996-2003 is not sufficiently related to the specific allegations in the complaint. While the complaint does include vague language regarding "numerous other spills," the specific allegations set forth in that pleading relate to spills that were reported in May 2000 and March 2002. To the extent that staff determined that it required additional information relating to possible spills dating back seven years, it has the authority pursuant to ECL § 17-1011 and NL § 178 to investigate the facility. Based upon this information, staff would set forth the allegations in its pleadings. However, once the complaint is served and except to the extent amendments are sought and granted, the staff must be held to the statements within the pleading. This is so in order to provide sufficient notice to the respondents as to the claims against them and the subject of any hearings. State Administrative Procedures Act § 301.
Since the parties have settled on the remediation, there appears to be no basis for staff's claim that this information is needed in order to remediate the site. With respect to penalties, certainly a history of proven violations would be relevant to their assessment. However, at this juncture, it is not appropriate for staff to search back seven years in order to bolster its request for penalties. The extent to which staff is providing records to the respondent is not necessarily germane to whether the discovery staff seeks is appropriate.
Respondent's motion for a protective order is granted with respect to staff's discovery request of November 20, 2003.
Helene G. Goldberger
Administrative Law Judge
Dated: Albany, New York
December 22, 2003
TO: Benjamin A. Conlon
NYSDEC - DEE
Bureau of State Superfund and Voluntary Cleanup
625 Broadway - 14th Floor
Albany, New York 12233-5550
Joseph T. Walsh, III, Esq.
Maritza Berdote Byrne, Esq.
McCusker, Anselmi, Rosen, Carvelli & Walsh
127 Main Street
Chatham, New Jersey 07928