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ExxonMobil Oil Corporation - Ruling 4, October 23, 2002

Ruling 4, October 23, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 3, 17, and 71 of the Environmental Conservation Law,
Article 12 of the Navigation Law of the State of New York and Title 6 of
the New York Compilation of Codes, Rules, and Regulations,

- by -

EXXONMOBIL OIL CORPORATION,
Smithtown

Case No. D1-0001-02-06

RULING OF THE ADMINISTRATIVE LAW JUDGE:
RESPONDENT'S MOTION FOR A MORE DEFINITE STATEMENT

Background

Department of Environmental Conservation (DEC or Department) staff issued a notice of hearing and complaint to the respondent, ExxonMobil Oil Corporation (ExxonMobil) dated June 14, 2002. In these pleadings, staff alleges that the respondent violated the Environmental Conservation Law (ECL), the Navigation Law, and Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) by failing to contain a discharge of petroleum from its site located at 705 Route 347, Smithtown, New York (Exxon Station). By motion dated August 19, 2002, staff, inter alia, moved to amend its complaint. In my ruling dated September 13, 2002, I granted staff's motion to amend.

On September 30, 2002, staff filed its amended complaint that adds a second facility located at 710 Route 347 in Smithtown as the alleged source of the petroleum contamination of concern. With this pleading, staff also filed its motion for order without hearing.

On October 7, 2002, Joseph T. Walsh, III, Esq. of McCusker, Anselmi, Rosen, Carvelli & Walsh on behalf of ExxonMobil moved for a more definite statement. The Department's regulations allow a respondent to move for a more definite statement of a complaint within 10 days of completion of its service. 6 NYCRR § 622.4(e).

On October 11, 2002, Benjamin A. Conlon, Esq., on behalf of the Department staff, filed his response.

Positions of the Parties

In general, ExxonMobil argues in its memorandum in support of its motion that the amended complaint lacks any factual support for either the requested two million dollar penalty or the Department's takeover of the alleged contamination.

With respect to specific paragraphs in the complaint, the respondent points to paragraphs 5, 6, 7, 16 and 18 as lacking the specificity that would permit the respondent to formulate an answer and defense.

Paragraph 5 of the amended complaint states:

Based on the investigation, it was determined that a plume of dissolved MtBE extended from the Exxon and Mobil Stations for over 2,400 feet with a width of over 1,800 feet.

The respondent complains that in this statement the Department fails to allege what share of the plume stems from which facility in issue. ExxonMobil contends that without an identification of what portion of the plume is thought to have been generated by which station, it is impossible for the respondent to develop its defense. ExxonMobil explains this is because it won't be able to determine which facility is at fault for what aspect of the alleged contamination.

Paragraph 6 of the amended complaint states:

After being presented with the investigation results, Exxon, one of the two corporations which merged to form the Respondent's corporation, signed a Stipulation Agreement with the Department accepting responsibility to clean up the spill in accordance with an agreed upon plan and schedule. The Stipulation date is effective February 9, 1999.

Paragraph 7 of the amended complaint states:

After being presented with the investigation results, Mobil Business Resources Corp., one of the corporations which merged to form the Respondent's corporation, signed a Stipulation Agreement with the Department accepting responsibility to clean up the spill in accordance with an agreed upon plan and schedule (submitted to the Department July 20, 1999). The Stipulation date is effective May 5, 1999.

With respect to these two paragraphs, the respondent argues that they are deficient because they fail to specify "the who, what, when, where and why of the alleged spills."

Paragraph 16 of the amended complaint reads:

During Respondent's operation of the pump and treat system, Respondent exceeded the discharge standards for Tertiary butyl alcohol, in violation of the Environmental Conservation Law and the regulations promulgated thereto, and the Stipulation Agreement.

Paragraph 18 of the amended complaint reads:

During Respondent's operation of the soil vapor extraction system at the Exxon Facility, Respondent exceeded numerous discharge standards, in violation of the Environmental Conservation Law and the regulations promulgated pursuant thereto, and the Stipulation Agreement.

Again, the respondent maintains that these allegations are vague and ambiguous because the Department fails to identify the standard at issue and how and when the standard was allegedly exceeded.

With respect to the respondent's claims regarding the failure of staff to identify the basis for the penalty sought, staff responds stating that it has referenced "Statutory and regulatory provisions which have maximum penalties of up to $25,000 per day." Based upon the size of the plume and the length of its existence since 1998 as well as the amount of contaminated soil removed from the Exxon site, staff argues that this demonstrates that the respondent has not timely remediated the spill. In addition, staff provides that recently discovered material indicates that the spill may have existed for over 5 years at this site and therefore, the penalty would well exceed the amount requested in the complaint. In addition staff maintains that there is no authority for requiring it to "quantify the full penalty allegation."

As for the respondent's arguments regarding staff's takeover of the remediation of the site, the staff maintains that ExxonMobil has failed to demonstrate that it is willing to perform the needed work because the plume is expanding. Moreover, without identifying any specific sections of law, staff provides that it is confident that there is express authority in both the Navigation Law and the ECL for such action and in any case, the staff is not seeking permission for such action.

Concerning ExxonMobil's assertions regarding paragraph 5 of the complaint, staff maintains that since it is the respondent that has been investigating the spill(s), the company's claim of lack of knowledge is disingenuous. And, because the staff argues that joint and several liability applies to oil spill cleanups, the respondent's request for clarification as to the exact extent of each source's contribution to the plume is irrelevant. Staff also mentions that because the complaint only names one liable party - the respondent - there is no basis for this claim.

As for paragraphs 6 and 7 of the complaint, staff argues that because the respondent should have known what spill the stipulations referred to when Exxon and/or Mobil executed them, it should have full ability to answer the complaint.

As for paragraphs 16 and 18, staff has attached ExxonMobil submissions to the Department which it maintains reference the standards at issue. Accordingly, staff claims this knowledge is within the respondent's hands.

Discussion

Section 622.3(a)(1)(iii) of 6 NYCRR provides that a complaint include "a concise statement of the matters asserted." The regulations also provide an opportunity for a respondent to move for a more definite statement in the event that the complaint "is so vague or ambiguous that respondent cannot reasonably be required to frame an answer." 6 NYCRR § 622.4(e).

With respect to ExxonMobil's general assertion that staff's complaint fails to provide support for the relief requested, I do not find the pleading lacking in the manner intended by 6 NYCRR § 622.4(e). As noted by staff in its response, it will be Department staff's burden to provide sufficient information either in its motion for order without hearing or in a future hearing to establish that it is entitled to the relief requested. Moreover, the Department will be subject to discovery of information that is relevant to its pleadings and in that process, the respondent may search for the support it finds is lacking. However, these general criticisms of the amended complaint are more in the nature of an argument that staff's request for relief lacks foundation than the complaint is vague or ambiguous.

As for the respondent's arguments regarding specific paragraphs, I rule as follows. Concerning paragraph 5, ExxonMobil argues that the Department staff's omission of the apportionment of the share of the plume that comes from each station renders this statement impossible to answer. I disagree. While the respondent and certainly the Department staff may wish to precisely determine the percentage of the plume that stems from either the Exxon or Mobil branded stations, the regulations do not require this precision in the complaint. These facts are also among those that are properly sought in discovery; however, it may be that the Department staff does not have this information. The staff is alleging in this statement that both stations contributed to the plume. I am unaware of any requirement in the ECL or the pertinent regulations that would require staff to definitively state to what extent each source is accountable. And, this lack of specificity does not render the respondent unable to discern what staff is alleging in paragraph 5 and should not impair ExxonMobil's ability to defend itself.

With respect to paragraphs 6 and 7, while the Department staff argues that the respondent should be aware of what spill is referred to in those stipulations because the respective company representatives signed them, I disagree. That is because "the spill" in the context of this amended complaint may or may not be referring to the same incident that is referred to in those respective agreements. Therefore, staff is directed to clarify what spill it is referring to in each of these paragraphs. This information should include the source, nature, and location of the spill.

Similarly, I agree with the respondent that with respect to paragraphs 16 and 18, staff has failed to identify the discharge standards that it contends ExxonMobil has violated. Attorney Conlon has annexed some documents to staff's responsive papers that are supposed to be indicative of the respondent's knowledge of the standards in question. I cannot discern what these are from a review of those documents nor should a party have to hunt beyond the four corners of the complaint for a plain statement of the allegations. Neither the respondent nor the administrative law judge should be placed in the position of guessing what sections of the law and/or regulations are referred to with respect to an alleged violation. In addition, there is no identification of what exactly caused these exceedances and when they occurred. In paragraph 16, staff alleges that respondent's operation of the pump and treat system caused exceedances of the Tertiary butyl alcohol discharge standards but there is no mention of when this occurred. In paragraph 18, staff states that respondent exceeded numerous discharge standards but there is no explanation of what those are or when the exceedances occurred. Therefore, these allegations are far too vague to elicit a knowledgeable response. Accordingly, staff is directed to clarify these allegations in an amended complaint.

Conclusion

Paragraphs 6, 7, 16, and 18 of the amended complaint are so vague that the respondent cannot be expected to frame an answer.

Ruling

ExxonMobil's motion for a more definite statement of the amended complaint is granted with respect to paragraphs 6, 7, 16, and 18 but is denied with respect to paragraph 5.

Pursuant to 6 NYCRR § 622.4(e)(2), the Department staff shall serve a second amended complaint within 15 days of receipt of this ruling and the respondent must serve an answer within 20 days of the receipt of the complaint. Concerning staff's outstanding motion for order without hearing related to this proceeding, the respondent is directed to serve its response to that motion no later than 10 days from receipt of the amended complaint.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
October 23, 2002

TO: Benjamin A. Conlon,
Associate Attorney
NYSDEC - DEE
625 Broadway - 14th Fl.
Albany, New York 12233-5550

Joseph T. Walsh, III, Esq.
McCusker, Anselmi, Rosen,
Carvelli &Walsh
127 Main Street
Chatham, New Jersey 07928

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