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Green Island Tree Spray, Inc. - Ruling, June 26, 1997

Ruling, June 26, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Article 33 of the Environmental Conservation Law of the State of New York
and Title 6, Parts 320 to 329, of
the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

ROBERT J. WARD, individually, and as president of Green Island Tree Spray, Inc.,
and JERRY DOWNES, individually, and as corporate officer of Green Island Tree Spray, Inc.,
and GREEN ISLAND TREE SPRAY, INC., d/b/a GREEN ISLAND TREE SPRAYING, INC.,
and GREEN ISLAND TREE & SHRUB CARE, INC.

Respondents

RULING ON APPLICATION TO COMPEL DISCLOSURE

(DEC File Nos. 1-4629, 1-5097 and 1-5109)

BACKGROUND

The Department Staff served a complaint dated July 28, 1995, against the above-named Respondents, alleging various violations of pesticide laws and regulations. The Respondents submitted an answer dated September 11, 1995, basically denying the charges and asserting six affirmative defenses.

The Department Staff issued a Notice to Produce Documents on May 10, 1996. The Respondents answered the notice with various objections on July 19, 1996. On September 11, 1996, the Department Staff responded to the objections and invited an attempt to address them informally. A meeting of the parties' counsel on September 19, 1996, did not resolve their disputes.

On January 16, 1997, the Department Staff moved for an order directing the Respondents to produce for inspection and copying all documents requested in its notice. Given continuing negotiations to settle the underlying enforcement matter, the Respondents requested and the Staff consented to various extensions of time for the Respondents to answer the motion. When settlement negotiations failed to produce an agreement, the Respondents answered the motion in an affidavit of counsel dated May 29, 1997.

On June 6, 1997, I had a conference call with the parties' counsel. The Department's Region 1 Staff was represented by Louise M. Aja, an assistant attorney at the Department's Stony Brook office. The Respondents were represented by Sanford Strenger, Esq., of the firm Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., in Uniondale.

I prompted the call to question the parties on statements made in the motion and answering affidavit. This ruling addresses the Department's motion to compel disclosure as well as one of the Respondents' affirmative defenses, which I find requires factual supplementation.

DISCUSSION

- - Motion to Compel Disclosure

The Department's hearing regulations provide that the scope of discovery must be as broad as that provided under Article 31 of the state's Civil Practice Law and Rules (CPLR) [6 NYCRR 622.7(a)]. CPLR Section 3101 states that generally there shall be full disclosure of all evidence "material and necessary" in the prosecution or defense of an action, regardless of the burden of proof. Whether the documents requested by the Department Staff are material and necessary must be viewed in light of the specific charges in the complaint and the affirmative defenses alleged by the Respondents.

With that perspective, the Department's notice is clearly over broad. As noted by the Respondents, the complaint alleges violations of certain provisions of the Environmental Conservation Law ("ECL") and the Department's regulations at particular times and at specific locations during the years 1990 to 1995. The allegations include failure to enter contracts with certain customers, failure to provide customers with pesticide labels, failure to place warning markers, misuse and improper disposal of pesticides, and contamination of non-target areas. More generally, the Respondents are alleged to have not maintained mandated daily pesticide use records between 1992 and June 12, 1995, on which date Department Staff inspected Respondents' facility.

To some degree the Department's notice requests documents that are material and necessary to its prosecution. But the notice also goes further, requesting documents that have no apparent relevance to the charges. In this sense, the Respondents have accurately characterized the notice as an impermissible Departmental effort to "fish" through their files, apparently in search of other violations not now alleged in the complaint.

As the Respondents also argue, the notice is unduly burdensome since it requires that they produce virtually all of their business records at the Department's offices. If, as Staff claims, it wants to know generally how the Respondents conduct their business, and to look for possible other violations, Staff can use its ample investigatory authority [ECL 3-0301 (2)(g),(h); 33-0905(4); 33-1205(1),(2)(b)]. But a disclosure demand has a more limited purpose: to probe into issues raised by the parties' pleadings.

Staff insists that its requests could not have been more specific and therefore are not over broad. However, breadth and specificity are two separate considerations; a demand can be specific yet still be over broad.

This ruling's intent is to indicate how the notice to produce is defective and therefore why the application to compel disclosure must be denied. The ruling addresses the notice in the order of its 48 numbered demands, many of which I have combined for discussion purposes.

1. In paragraphs 1, 2 and 3 of its demand, the Department Staff requests records indicating the identity, quantity, and dosage rate of each pesticide used between January, 1991, and the date of its notice to produce (May 10, 1996). For the same period, the Department also requests all records indicating the method of each application as well as the target organisms against which each pesticide was used (paragraphs 4 and 5).

The Department Staff justifies these requests on the grounds that they relate to paragraphs 97, 98 and 104 of the complaint. Paragraphs 97 and 98, however, relate to a one-time disposal of 20 pounds of Malathion in early October, 1993, and do not support requests as sweeping as those noted in the prior paragraph. Also, paragraph 104 alleges that between 1992 and June 12, 1995, Green Island failed to maintain "daily use" records indicating the kind and quantity of each pesticide used, dosage rates, methods of application, and target organisms, as required by 6 NYCRR 325.25(a). Therefore, Staff's demands are over broad with regard to time frame.

The Respondents deny the allegations in paragraph 104 and claim that the requested information is maintained on their customer cards, daily route sheets and customer contracts, which they say Staff has previously reviewed and partially copied. It is not clear whether Staff agrees that these types of documents are responsive to its request and to the requirements of 6 NYCRR 325.25(a), which states that the required records must be kept "in a manner specified by the department." To eliminate ambiguity, Staff needs to identify what types of documents it wants, not just by their content, but by the way they must be kept. If Staff accepts that customer cards, daily route sheets and customer contracts fulfill the requirements of 325.25(a), the parties should arrange for a mutual inspection of them, preferably at the Respondents' offices, given the volume of documents that may be involved. If, however, Staff maintains that such documents do not meet legal requirements, its request must be made more particular. Toward that end it would help for Staff to explain what the complaint means by "daily use" records, since the words "daily use" are not found in 325.25(a).

The Respondents argue that their customer cards, daily route sheets and customer contracts contain proprietary and/or trade secret information about their customers, and therefore object to their production until such time as the parties have executed a mutually acceptable confidentiality agreement. While I appreciate the Respondents' concerns, they can be addressed by producing the documents along with a written request that they be excepted from disclosure under the Freedom of Information Law [Public Officers Law 89(5); 6 NYCRR 616.7]. The documents will then be excepted from disclosure until after the entitlement to the exception has been finally determined by the Department or such further time as ordered by a court of competent jurisdiction. The law adequately protects the Respondents' interests against disclosure to third parties; therefore, disclosure to the Department need not await negotiation of a confidentiality agreement.

2. In paragraphs 6 and 7 of its demand, the Department Staff requests that for the period between January, 1991, and May 10, 1996, the Respondents produce all records indicating the purpose (meaning "use") of each pesticide applied and the date each pesticide was applied. Again, Staff justifies these requests on the grounds that they relate to paragraphs 97, 98 and 104 of the complaint. However, paragraph 104 contains no allegation that Respondents failed to maintain records indicating the use or date of application of each administered pesticide. Even if it were relevant to paragraph 104, the request is still over broad because paragraph 104 of the complaint alleges that the Respondents failed to maintain required records for the period "between 1992 and June 12, 1995," while the document request seeks access to records for the period between January, 1991, and May 10, 1996. Again, paragraphs 97 and 98 cannot support the request because they relate to an alleged one-time disposal incident involving one pesticide in 1993.

3. In paragraphs 8 and 9 of its demand, the Department Staff requests records indicating the quantity of each pesticide purchased between January, 1991, and May 10, 1996, and the names and addresses of all parties from whom these pesticides were obtained. In paragraphs 10, 11 and 12, the Department Staff requests records indicating the inventory, disposal, and return-to-supplier for each pesticide in the Respondents' care, custody, possession and/or control for this same period. Again, Staff relates these requests to paragraphs 97, 98 and 104 of the complaint; however, the requests are irrelevant to these charges.

The records requested in paragraphs 8-12 have nothing to do with whether the Respondents maintained records of pesticides actually used, as charged in paragraph 104. Also, the purchasing, inventory, and return-to-supplier records are not relevant to whether the Respondents illegally disposed of 20 pounds of Malathion on one date in October 1993, as charged in paragraphs 97 and 98. The disposal records would relate to the Malathion charge, but only those records for early October 1993, when the alleged illegal disposal occurred. That one incident and another alleged in paragraph 8 (involving the drainage of 20 gallons of a pesticide mixture into a sewer) cannot support a request for all of the Respondents' disposal records covering a five-year period. Again, the request is over broad.

4. In paragraph 13 of its demand, the Department Staff requests records of the specimen labels for every pesticide used between January 1, 1991, and May 10, 1996. While I agree with Staff that, in general, the specimen labels could provide relevant information for the charges of pesticide misuse, Staff's request is still over broad in terms of time frame. More important, Staff needs the labels only for the particular pesticides which are alleged to have been misused, so in this respect too the request is over broad. So that its request is not unduly burdensome, I agree with the Respondents that Staff should advise them which labels it already has so that the Respondents need not have to search their files for them.

5. In paragraph 14 of its demand, the Department Staff requests records of all lawn markers utilized in the application of pesticides. This request is over broad and needs to be reframed in terms of the actual incidents where lawn markers are at issue. As currently written, the request is not limited to any time frame at all.

6. In paragraph 15 of its demand, the Department Staff requests records of all written commercial lawn application contracts entered into with each customer provided with the services of pesticide application to their lawns, grounds, trees or shrubs during the period between January 1, 1991, and May 10, 1996. These records are alleged to relate to paragraphs 35, 36, 43, 44, 47 and 48 of the complaint. However, these paragraphs allege that the Respondents failed to enter into written contracts with just three customers, each incident occurring in 1992. Therefore, the charges do not justify a request for all customer contracts spanning a five-year period. Staff notes correctly that persons providing commercial lawn applications must maintain copies of all contracts with property owners. However, this does not justify what is, in essence, an over broad discovery demand. Such a demand must be judged not in terms of the general obligation to preserve documents, but by the documents' relevance to particular charges.

7. In paragraph 16 of its demand, the Department Staff requests records of all advertisements for employees and/or independent contractors to provide pesticide application services for the company for the period between January, 1991, and May 10, 1996. Staff indicates that such records of "employment qualifications" could relate to the carelessness and inferior work alleged in the charges of pesticide misuse. However, as the Respondents note, Respondents' advertisements for employees would not necessarily show the qualifications of employees actually hired to perform pesticide applications, much less the qualifications of the employees actually involved in the charged incidents. At most, the Respondents concede, the Department would be entitled only to the employment records of the people who actually made the applications in issue. The request is not reasonably calculated to lead to the discovery of relevant information and is also over broad.

8. In paragraph 17 of its demand, the Department Staff requests records indicating the terms of employment, including amount and type of compensation, for all employees and independent contractors providing pesticide application services for the company between January, 1991, and May 10, 1996. As with the preceding demand, Staff says these records could relate to the carelessness and inferior work alleged in the charges of pesticide misuse. However, I find them, in all likelihood, irrelevant to these charges. The actual performance records of people who made the contested applications might provide relevant information; records showing how much and the manner in which they were paid would not reasonably be expected to. Because the request does not distinguish between employees who were involved in these incidents and others who were not, the request is also over broad.

9. In paragraph 18 of its demand, the Department Staff requests records indicating the names and addresses of people who, during the period between January 1, 1991, and May 10, 1996, provided the company with telemarketing, clerical, secretarial, office management, vehicle maintenance, building and grounds maintenance, accounting, and bookkeeping services. In paragraphs 19 and 20, Staff requests the names and addresses of employees and independent contractors providing pesticide application services for the company during this same period. Staff contends that the requests in paragraphs 18-20 are reasonably calculated to lead to admissible evidence since these people may know of activities that form the bases for the Department's enforcement efforts. However, the requests are over broad and, in the case of paragraph 18, irrelevant. Staff would be justified in seeking the names and addresses of the employees and/or independent contractors actually involved in the incidents alleged in the charges. Whether others would have useful information is totally speculative; therefore, the breadth of the requests is unreasonable.

10. In paragraph 21 of its demand, the Department Staff requests records indicating instructions given to new employees about the handling and application of pesticides. This request is over broad since it is not limited to any time period or to the employees involved in particular incidents as alleged in the complaint.

11. In paragraph 22 of its demand, the Department Staff requests "records of all permit applications and insurance applications and policies" by or on behalf of the owner and/or lessee of the Respondents' premises at 95 West 19th Street in Huntington Station. Staff justifies this request by reference to paragraphs 97 and 98 of the complaint, which concern a one-time illegal disposal of Malathion by washing it down a dry-well which was covered over a month later. The Department indicates these records could reveal building modifications that would support its charges. However, there is no reason to think so; therefore, the request is not reasonably calculated to lead to the discovery of relevant evidence. Even if it were, the request is over broad, since it fixes no particular time period, whereas the dry-well's covering is alleged to have occurred in November, 1993.

12. In paragraph 23 of its demand, the Department Staff requests records of annual hazardous waste reports for the years 1991 through 1995. Staff also justifies this request by reference to the charge of Malathion disposal noted in the preceding paragraph. The request is over broad because it seeks five years of reports in relation to a one-time incident occurring in 1993. The Respondents also object that these hazardous waste reports are available from the Department's own regional staff. Needless to say, if Staff can retrieve them from its own files, it should not be making this demand. However, if it cannot, the demand is appropriate, so long as its time frame is tailored to the incident in question.

13. In paragraphs 24-27 of its demand, the Department Staff requests records of environmental audit reports, records of pesticide-related insurance reports or recommendations, and records of the Respondents' environmental and safety policy statements. While Staff says these records could relate to virtually all of its charges, this is mere speculation, insufficient to support such sweeping requests. The demands are also flawed in that they have no time limitation, whereas the charges encompass a particular time period.

14. In paragraph 28 of its demand, the Department Staff requests records indicating equipment provided to new employees for the application and handling of pesticides. This request is related to two incidents in which applicators allegedly were not provided with proper safety equipment. However, both incidents are alleged to have occurred in 1995, whereas Staff's request has no specified time frame, and is therefore over broad.

15. In paragraph 29 of its demand, the Department Staff requests records identifying by name and address all parties from whom the Respondents acquired pesticide-related safety and application equipment, supplies and materials for the period between January 1, 1991, and May 10, 1996. Staff relates this request to the same incidents described in the preceding paragraph. However, the request is for irrelevant information. What matters is whether the Respondents provided their applicators with safety equipment (which is addressed by demand paragraph 28), and not from whom the Respondents obtained the equipment.

16. In paragraph 30 of its demand, the Department Staff requests records of any correspondence to or from the Occupational Safety and Health Administration (OSHA) from 1991 to May 10, 1996. While Staff claims that information from OSHA could relate to many of the charges in the complaint, again this is purely speculative. While, as a discovery demand, this request is unsupportable, nothing precludes the Department from inquiring directly of OSHA whether the Respondents have committed any worker safety violations.

17. In paragraph 31 of its demand, the Department Staff requests records of all water hydrant permits issued to the Respondents. Staff requests these records in relation to paragraphs 7 and 8 of its complaint, which describe how one of the company's employees allegedly used hydrant water to mix a pesticide in a truck tank, then failed to close the hydrant once the tank was filled, causing a discharge of the mixture into a nearby sewer drain. Staff's charges relate to the pesticide's "disposal" via the sewer drain and not to the use of the hydrant for securing water. Therefore, whether the Respondents had a hydrant permit is irrelevant. The request is also over broad since it is not limited to time or place, whereas the incident is alleged to have occurred on a particular date at a specified intersection.

18. In paragraph 32 of its demand, the Department Staff requests the state registrations for every vehicle used in connection with the application of pesticides between January 1, 1991, and May 10, 1996. The Respondents indicate they have not kept their old vehicle registrations for the years 1991 through 1995, the period covered by the charges. Therefore, issues about the legitimacy of the demand are moot.

19. In paragraphs 33 and 34 of its demand, the Department Staff requests records of all claims filed against the Respondents, and all claims which the Respondents have filed against any party, in connection with the application of pesticides. Staff says this information could relate to virtually all of the charges and would reveal potential bias by prospective witnesses. Whether or not this is true, the requests are vague and over broad. The requests do not specify what types of claims are sought. Also, the charges refer to specific incidents on particular occasions, whereas the production demands do not.

20. In paragraph 35 of its demand, the Department Staff requests records of all bankruptcy petitions filed by Green Island. Staff says bankruptcy petitions would be relevant because they would toll any statute of limitations governing the violations in the complaint, and are also relevant to whether the Respondents have been denied the opportunity under State Administrative Procedure Act (SAPA) 301(1) for a hearing within reasonable time, one of their affirmative defenses. I find that the material requested is irrelevant to the issues in this case. For one thing, administrative enforcement proceedings are not governed by statutes of limitations. Also, the filing of a bankruptcy petition does not stay actions or proceedings by a governmental unit to enforce its police or regulatory powers [11 U.S.C. 362(b)(4)]. Therefore, even if the Respondent Green Island had filed for bankruptcy, this would not justify delay in issuing the complaint.

21. In paragraph 36 of its demand, the Department Staff requests records of any certificate of incorporation and by-laws (including amendments) as well as shareholder agreements for Green Island Tree Spray, Inc., Green Island Tree Spraying, Inc., and Green Island Tree & Shrub Care, Inc. Staff says these documents would relate to charges that the Respondents did not register with DEC under the name used on their vehicles, and also to issues of personal responsibility for Robert Ward and Jerry Downes, who are named individually as Respondents. The Respondents claim the requested records are available from the New York State Department of State. Regardless, they would have been generated by the Respondents, and therefore they must produce them to the extent they exist. Staff's request is allowable.

22. In paragraph 37 of its demand, the Department Staff requests records of all fictitious name business registrations filed with the clerks of Nassau and Suffolk counties. Staff relates this request to the charge that the Respondents failed to register the name "Green-Island Tree & Shrub Care," as advertised on their trucks, with DEC. Unless the request is limited to this one name, it is over broad.

23. In paragraphs 38 and 39 of its demand, the Department Staff requests records of all permit applications by or on behalf of Green Island pertaining to modifications of its premises at 95 West 19th Street in Huntington Station, and records indicating alteration to the floors, walls, drainage, drywalls and manhole covers of the premises for the period between June, 1993, and April, 1994. Staff says these records could reveal building modifications supporting the Department's charge that a garage floor was repaired and a dry-well covered to conceal an illegal disposal of Malathion in early October, 1993. The requests are over broad since they are not limited to the garage area of the premises and, with respect to the request for permit applications, do not specify any relevant time period. (Also, the word "drywalls" is presumably an error, meant to refer to "dry-wells.") Otherwise, however, the requests are allowable. It makes no difference whether the Department could also get records of premises alteration from the Town of Huntington Building Department, as argued by the Respondents. The records, if they exist, would have been generated by the Respondents, so it is proper to request them from the Respondents directly.

24. In paragraph 40 of its demand, the Department Staff requests records of all deeds, leases and other documents of title or occupancy pertaining to the Respondents' facilities at 10th Street and 19th Street in Huntington Station. Staff says these documents relate to the charges of illegal Malathion disposal and failure to register a business name that was affixed to the Respondents' vehicles and equipment. However, I agree with the Respondents that the request is not reasonably calculated to lead to the discovery of relevant evidence. As argued by the Respondents, records concerning their real property interests have no bearing on the issues in the complaint.

25. In paragraphs 41-46, the Department Staff requests records that the Respondents will use to support the six affirmative defenses in their answer. These defenses include:

  1. Denial of an opportunity for hearing within reasonable time, in violation of SAPA 301(1);
  2. Waiver, in that from 1990 to 1995, DEC granted Green Island's applications for business registration pursuant to 6 NYCRR 325.23; and
  3. Estoppel, on the same basis as stated for the second defense.

Also, as a fourth affirmative defense, the Respondents claim that one of its employees, Christopher Terranera, was under the direct supervision of Respondent Ward, a duly certified applicator, and therefore was authorized to make pesticide applications at the time of certain violations alleged by Department Staff in paragraphs 7-18 of the complaint. The fifth affirmative defense is that certain evidence gathered by DEC in support of its complaint was obtained by virtue of an illegal and unconstitutional search of the Respondents' records on June 12, 1995. The sixth defense is that at all times relevant to the complaint, the Respondents complied with all applicable laws governing the storage, handling, use and disposal of pesticides for commercial application purposes.

Staff's requests would provide information relevant to the defenses and therefore to the Respondents' case. The Respondents do not contest this, but claim that the documents responsive to the requests are already in the Department's possession, and accordingly there is no need to produce them. According to the Respondents, the following documents support their affirmative defenses:

  1. The Respondents' annual business registrations with the Department from 1991 through 1995;
  2. The Respondents' certified pesticide applicator licenses from 1991 through 1995;
  3. The documents copied by the Department during its searches of Respondents' facilities on June 12 and July 14, 1995;
  4. The unsigned consent forms allegedly proffered to the Respondents after these searches (copies of which are attached to the Respondents' papers);
  5. Correspondence between the Department and Respondents; and
  6. All statements taken by the Department from Respondents' employees.

Given the Respondents' description of the requested documents, Staff should have them already. In such a circumstance, the Respondents should not have to produce them again. However, with regard to the correspondence between the Department and the Respondents, the Respondents need to compile a list of that portion which they would intend to introduce, referenced to the defense or defenses to which it is relevant.

26. In paragraphs 47 and 48 of its demand, the Department Staff requests documents of written statements by DEC Staff and the Respondents that the Respondents will seek to introduce, have marked, or entered in evidence. The Respondents claim that they have not yet determined which documents they will seek to admit into evidence, and that, when they do, they will produce them to the Department. I agree with the Respondents that the request is premature. Except with regard to their affirmative defenses, on which the Respondents have the burden of going forward, the Respondents can wait until after Staff presents its case on the charges to decide what kind of defense they will mount or what documents they will offer. The Respondents need not answer these requests at this time; however, as part of a pre-hearing telephone conference, I intend to discuss with the parties a timetable by which they will each identify their witnesses and pre-mark exhibits they intend to offer.

- - Respondents' Affirmative Defenses

My telephone conference call with the parties' counsel included some discussion of the affirmative defenses alleged by the Respondents. The Department Staff said it anticipated moving to dismiss at least some of the defenses, and I questioned how the Respondents would attempt to prove them.

The Department's hearing regulations require that a Respondent's answer must explicitly state any affirmative defenses together with a statement of facts which constitute the grounds of each affirmative defense asserted [6 NYCRR 622.4(c)].

The regulations also allow the Department Staff to move for clarification of affirmative defenses within 10 days of an answer's service on the grounds that the defenses pled are vague or ambiguous or that Staff is not thereby placed on notice of the facts or legal theory upon which a defense is based [6 NYCRR 622.4(f)].

While Staff has not moved for clarification, I find it necessary to insist that the first affirmative defense - - the alleged failure to provide a hearing within reasonable time - - be supplemented with a statement of facts on which it is based. Such a statement is not now included in the answer; instead, the defense is pled merely as a legal conclusion.

Establishing whether the Respondents were denied an opportunity for hearing within reasonable time, a violation of SAPA Section 301(1), requires consideration of a number of factors as outlined in the Court of Appeals decision, Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, 495 NYS2d 927 (1985), and confirmed in the Department's own decision dismissing a pesticide case, In the Matter of Manor Maintenance Corporation and Richard Schultheis (Order of the Commissioner, February 12, 1996).

To clarify its first affirmative defense, the Respondents need to assert facts on which it is grounded, including the prejudice they have suffered. The Respondents also need to note whether the defense relates to all or merely some of the charges. These points can be addressed in a supplemental statement which I can then append to the answer.

RULINGS

  1. The Department Staff's Notice to Produce Documents, dated May 10, 1996, contains serious flaws, as noted above. Therefore, the motion to compel production of the documents requested in the notice is hereby denied.
  2. Department Staff shall serve a revised notice, correcting these flaws, within 10 business days of receipt of these rulings. The revised notice shall be served upon Respondents' counsel, with a copy to me. The Respondents shall move for any protective order within 10 days of receipt of the revised notice, consistent with 6 NYCRR 622.7(c).
  3. The deadlines in the preceding paragraph may be extended upon agreement of the parties. In fact, the parties are encouraged to negotiate any remaining discovery between themselves to the extent this is possible, before resorting to formal procedures.
  4. The Respondent shall provide to me and the Department Staff, within 10 business days of receipt of these rulings, a supplemental statement of facts which constitute the grounds of its first affirmative defense. Accompanying the statement shall be a list of the inter-party correspondence that the Respondents plan to offer in proving all of their affirmative defenses, referenced to the defense or defenses to which each piece is relevant.

ORDER OF DISPOSITION

After allowing Department Staff an opportunity to serve a revised notice to produce documents, my office will schedule a conference call with the parties' counsel. Its purpose will be to discuss remaining pre-hearing issues, and a timetable for addressing them.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
June 26, 1997

TO: Louise Aja, Esq.
NYSDEC Legal Affairs
Building 40, SUNY
Stony Brook, New York 11790-2356

Sanford Strenger, Esq.
Farrell, Fritz, Caemmerer,
Cleary, Barnosky & Armentano
EAB Plaza
Uniondale, New York 11556-0120

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