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Lasdon, William S. (Estate of) - Interim Decision, February 9, 1993

Interim Decision, February 9, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of a -

Significant Threat to the Environment at an Inactive Hazardous Waste Site, under Article 27, Title 13, of the Environmental Conservation Law of the State of New York (the "ECL") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 375 by

ESTATE OF WILLIAM S. LASDON,

Respondent

Index Nos. W3-0623-92-10 (Harriman)
and W3-0624-92-10 (Maybrook)

INTERIM DECISION
February 9, 1993

INTERIM DECISION OF THE COMMISSIONER

This Interim Decision is in relation to the appeal by the Estate of Lasdon ("the Estate") to portions of a ruling made by Administrative Law Judge ("ALJ") Edward Buhrmaster in his letter to the parties, dated January 19, 1993.

Prior appeals by the Estate as to other matters involved in this proceeding, have not been entertained on an interlocutory basis since the Estate did not demonstrate that the failure to decide these appeals on an interlocutory basis would be unduly prejudicial to the Estate or would result in significant inefficiency in the hearing process [6 NYCRR 375-2.1(b)(6)(iv)Ia)]. Here, however, the Estate has made the required showing and therefore its appeal is now considered.

The Estate appeals the failure of ALJ Buhrmaster to strike paragraph eight (8) from the complaint supplements, which were prepared at his directive by DEC Staff. The Estate contends this paragraph and certain allegations in the amended complaints themselves violate the ALJ's ruling of September 1, 1992, which prevents DEC Staff from alleging party responsibility on any basis other than Mr. Lasdon's activities as an officer and director of Nepera Chemical Co.

In this context, paragraph 8 is read as DEC Staff's assessment of the law, as it applies to the facts alleged in its complaints, and not as a factual allegation which could be addressed by a motion to strike. Beyond that, DEC Staff has identified no allegations from its complaints which it perceives only as advancing a theory of liability premised on something other than William Lasdon's activities as an officer and director of Nepera Chemical Co. My review likewise reveals no such allegations, and therefore no need to strike material from the complaint.

The Estate also appeals the ALJ's failure to require DEC Staff to establish a specific nexus between each particular factual allegation and each of its alleged theories of liability. This part of the appeal is untimely. In his rulings of September 1, 1992, ALJ Buhrmaster said that in its new complaints, DEC Staff was considered a "responsible party." with specific reference to the definition at 6 NYCRR 375-1.3(u). That section includes seven bases for establishing party responsibility and the Department, in its complaints that were filed in October, 1992, failed to specify which of those seven it was asserting.

For this reason, the ALJ's prior ruling was affirmed in a letter, dated November 25, 1992, signed by the ALJ and noting his continuing jurisdiction to ensure compliance with his prior rulings, including those of September 1, 1992. The ALJ's letter said the DEC Staff must cite which of the seven bases for party responsibility were asserted in its complaints. To the extent liability was premised on 6 NYCRR 375-1.3(u)(7), DEC Staff was ordered to explain the relevant principles of statutory or common law liability which it is seeking to apply.

In his ruling of January 19, 1993, the ALJ found that with its complaint supplements, DEC Staff had been fully responsive to the directives that were made in the letter of November 25, 1992. Upon review of that letter, and having reviewed the complaint supplements, I agree with the ALJ.

I read the appeal by the Estate not as challenging the ALJ's ruling of January 19, 1993, but as stating that his prior ruling, which was made on November 25, 1992, did not go far enough to ensure the Estate a sufficiently particular statement of its alleged responsibility. Therefore, its appeal now is untimely, since an appeal from the ruling of November 25, 1992, would have been required within five business days from that ruling [6 NYCRR 375-2.1(b)(6)(iv)(a)].

For the reasons noted above, the appeal of the Estate is denied.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York, this 9th day of February, 1993

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

/s/
THOMAS C. JORLING
COMMISSIONER

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