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Johnson, Robert - Ruling 3, March 11, 1994

Ruling 3, March 11, 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 Respondent's motion to reargue his previous motion to join additional parties as co-Respondents in this proceeding. I denied that motion in my ruling of January 12, 1994. Respondent submitted an affirmation in support of the instant motion on February 18, 1994, and the Department Staff filed a reply in opposition on March 8, 1994.

Respondent's instant motion to reargue the denial of joinder is denied. Respondent has not presented any new facts or any substantial legal argument that could lead me to reverse my prior ruling. For the record, Respondent's request for oral argument is also denied.

It is now clear from subsequent affidavits that no "restitution" funds were paid by the parties convicted of the illegal dumping, Jo-Mar and Dalcamo. For the reasons stated in my prior ruling, they are not necessary parties and should not be joined. There is no basis whatsoever to consider joining Tyree and the service stations who contracted with Jo-Mar to transport and dispose of the petroleum contaminated soils. The Navigation Law is not relevant to this proceeding.

I suggest the Respondent now devote his resources to the upcoming hearing. On the motion for summary order, Respondent was given every possible favorable inference on the disputed facts. Although Respondent was found to be operating a solid waste management facility without a permit, all the major practical implications of this finding -- the remedial relief and civil penalties to be imposed, if any -- remain wide open for determination. The Department Staff will have the burden to support its allegations and request for relief. The Respondent will have a full opportunity to present all facts and arguments in opposition. The matters remaining in dispute are set forth in y rulings of November 22, 1994.

I will not be available to hold the hearing in this matter until May of 1994. I will set April 21, 1994 as a control date. By that date, all discovery must be completed. Subject to the parties' availability, I will set a conference call on April 21 at 10:00 A.M. to discuss the hearing schedule and any other prehearing concerns of the parties.

_____________/s/_____________
S. Pearlstein
Administrative Law Judge

Dated: March 11, 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, Esq.
The 1826 House
73 West Main Street
Babylon, New York 11702

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