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Johnson, Robert - Ruling 2, January 12, 1994

Ruling 2, January 12, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of the Environmental Conservation Law Articles 27 and 71 and of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

ROBERT JOHNSON

Respondent

RULING OF ADMINISTRATIVE LAW JUDGE

File No. R1-4339-90-09

This ruling addresses the Respondent's motion to join additional parties as respondents in this proceeding. The Respondent, Robert Johnson, contends that Jo-Mar Environmental Specialists, Inc. ("Jo-Mar") and Robert Dalcamo, the parties who illegally disposed of petroleum-contaminated soil on Respondent's land, should be joined in this proceeding. The Department Staff, in accord with the schedule established by the Administrative Law Judge in the November 22, 1993 rulings on Staff's motion for a summary order, submitted its affidavit in opposition to Respondent's motion on December 17, 1993.

As stated in the previous rulings, Jo-Mar and Mr. Dalcamo are parties who could be permissibly joined as respondents under 6 NYCRR 622.12(c)(3). 6 NYCRR Part 622 was revised effective January 10, 1994. This proceeding is governed by the pre-existing version of Part 622, however. and the CPLR. However, as noted by the Department Staff, the joinder of those parties would pose practical difficulties in adjudicating and resolving this proceeding. Jo-Mar and Dalcamo are responsible for only part of the solid waste on the site, although from the motion papers the petroleum-contaminated soil appears to be the most environmentally serious waste deposition problem on site. The joinder of those parties would require reformulation of the charges to separate those against the new respondents from those applicable to Mr. Johnson. It would then also be necessary to apportion the relief and remediation appropriately for each area of waste disposal on the site. While these difficulties are not insurmountable, they would likely delay the hearing and its ultimate resolution.

The joinder of Jo-Mar and Dalcamo, moreover, would likely not provide any significant benefits, either to the hearing process or to the Respondent, Mr. Johnson. If penalties and remediation were ordered with respect to the petroleum-contaminated soil, the liability of all respondents for that violation would be joint and several. Mr. Johnson would most likely have to resort to legal process or litigation to obtain contribution or satisfaction from Jo-Mar and Dalcamo in any event. As Staff points out, he has had that option already for some time.

In summary, the detriments from the joinder of Jo-Mar and Dalcamo in this proceeding would outweigh any benefits. Therefore, the motion for their joinder is denied.

This matter is now ready to proceed to hearing. The parties are directed to discuss mutually convenient dates to begin the hearing and get in touch with me within seven days after their receipt of this ruling, in order that a hearing schedule can then be established.

_____________/s/_____________
S. Pearlstein
Administrative Law Judge

Dated: Dated: January 12, 1994
Albany, New York

To: Jeanne A. Compitello, Esq.
NYSDEC Region 1
SUNY Stony Brook, Building 40
Stony Brook, New York 11790-2356

Patrick Kevin Brosnahan, Jr., Esq.
The 1826 House
73 West Main Street
Babylon, New York 11702

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