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Hudson, City of - Ruling on Motion for Leave, September 17, 1998

Ruling on Motion for Leave, September 17, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services, Room 423
50 Wolf Road, Albany, New York 12233-1550
Phone: (518)457-3468 FAX: (518) 485-7714
September 17, 1998

Carl G. Dworkin
Gary S. Bowitch
Attorneys for Respondent Anthony Concra
6281 Johnston Road
P.O. Box 3784
Albany, New York 12203

David Keehn, Esq.
NYSDEC
1150 N. Westcott Road
Schenectady, New York 12306

Kevin Young, Esq.
Attorney for Respondent CHIDA
Young and Rowe
3 Atrium Drive
Colonie, New York 12205

Re: The City of Hudson Industrial Development Agency,
The Hudson Community Development and Planning Agency
and Anthony R. Concra,

Case No. R4-1960-97-03

Dear Counsel:

Motions for leave to file expedited appeals from Administrative Law Judge (ALJ) Frank Montecalvo's August 24, 1998 Rulings in this case have been filed by each of the Respondents and by Staff. Leave to file the three expedited appeals is hereby denied.

The ALJ's disputed ruling denied motions to dismiss filed by Respondent Concra, and by Respondents City of Hudson Industrial Development Agency (CHIDA) and The Hudson Community Development and Planning Agency (HCDPA), collectively referred to as "Hudson". Additionally, the ALJ's disputed ruling denied Respondents motion for protective orders, and denied without prejudice Staff's motion for leave to serve requests for interrogatories.

Leave to file an expedited appeal may be granted where such an appeal would prevent undue prejudice or significant inefficiency. 6 NYCRR §622.6(e)(i). Neither of those objectives would be advanced by granting leave to appeal in this case at this time. Given the totally undeveloped state of the record in this case to date, a Commissioner's ruling on appeal from the ALJ's August 24 ruling could in fact be inadvertently prejudicial to either Staff or a Respondent. Moreover, proceeding with this case as the ALJ proposes should not result in the parade of "inefficiency" horrors advanced by Staff.

The Commissioner would need to consider a disputed legal question of whether there is a "discharge" under the Navigation Law in its specific factual context, and not in the abstract. However, the factual record in this case at this time is virtually non-existent. There is only a complaint alleging in essence that a piece of real property is "contaminated," apparently with petroleum, and that Respondents have a duty to clean it up. Hudson denies the essential allegations in an answer. Concra has not yet answered. Respondents moved to dismiss prior to Staff's filing of a Statement of Readiness. No hearings have begun. No other facts are available, except for those interspersed through rambling argument of the various counsel. The Commissioner declines to attempt to resolve the legal issues raised given the as yet undeveloped, and potentially unreliable, state of the factual record in this case.

The crux of this case appears to focus on whether there is a "discharge" within the meaning of the Navigation Law. The ALJ's ruling merely says that a bare allegation of the presence of "contamination" does not necessarily make out the existence of a "discharge" under the Navigation Law, but the ALJ also ruled that Staff should be allowed to show that a discharge exists. Therefore the ALJ ruled that the complaint will not be dismissed. The ALJ further concluded that a credible showing of the occurrence of a discharge should be made by Staff prior to service of any interrogatories. At the same time, Respondents were denied a protective order with respect to Staff's notice to produce documents.

This decision was within the ALJ's reasonable discretion. In fact, once documents are exchanged, there may be no need for interrogatories or other discovery.

The parties in their motion papers ignore the ALJ's main point, which is that a pint of oil spilled on the ground may be "contamination" but not a "discharge," while the spilled contents of a loaded overturned tanker truck near a river is a "discharge" according to some case precedent. Thus, Staff needs to explain what it knows about the degree and nature of the alleged existing contamination, and why it amounts to a discharge. This type of information needs to be put forth in some orderly and reliable fashion before the legal issues raised in these motions could or should be addressed. Staff, of course can develop and present its case in whatever manner it chooses under the applicable rules.

Accordingly, the motions for leave to file an expedited appeal are denied.

Sincerely yours,
_____________/s/_____________
G. S. Peter Bergen
Assistant Commissioner
for Hearings and Mediation Services

cc: Frank Montecalvo, Administrative Law Judge

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