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Mt. Hope Asphalt Corp. - Ruling 2, July 12, 1994

Ruling 2, July 12, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Consolidated Hearing In the Matter of Alleged Violation of Articles 19 and 27 of the New York Environmental Conservation Law and Parts 201 and 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, and Proceedings to Revoke All Permits Now Held by and Deny All Applications for Permits Filed by,

MT. HOPE ASPHALT CORP., a/k/a
MOUNT HOPE ASPHALT CORP.

and

JAY BOYLE, PAUL ABRAMS AND FRANK PETROSKY,
Individually, and In Their Capacity as Officers of MT. HOPE ASPHALT CORP., a/k/a
MOUNT HOPE ASPHALT CORP,

Respondents

RULING ON MOTION FOR RECONSIDERATION

A Ruling on Prehearing Motions was issued in the above captioned matter, dated June 22, 1994. On June 29, 1994 a conference telephone call was held wherein Respondents sought, and were granted, permission to file a motion for reconsideration regarding their motion to dismiss the Complaint under the doctrine of res judicata (and Staff's motion to dismiss Respondents' res judicata affirmative defense). Respondents seek clarification of the Ruling regarding their assertion that the January 14, 1993 Consent Order resolved reporting violations which Staff seeks to re-litigate in its September 17, 1993 Complaint (paragraph B7).

Respondents filed their letter-motion for reconsideration on July 5, 1994; Staff filed a letter-response on July 7, 1994. Although the parties had been limited to one filing not to exceed four pages, on July 8, 1994, Respondents filed an additional three page rebuttal to Staff's July 7 filing. The June 22, 1994 Ruling held that res judicata does not bar Staff's action brought by the Complaint, because the violations alleged in the Complaint are sufficiently distinct transactions - - i.e., reporting as compared to receipt of 39 consignments of soil - - and are not addressed by the Consent Order.

Res judicata ("a matter adjudged") is the legal doctrine which represents the policy of avoiding duplicative litigation where there is no good reason for duplication. The analysis on reconsideration in this action focuses on whether resolution of reporting violations in the January, 1993 Consent Order precludes litigation of reporting violations alleged in paragraph B7 of the Complaint. The January, 1993 Consent Order resolved Respondents' reporting violations from October 30, 1991 to May 8, 1992. The violations are described as failing to submit reports in violation of ECL Article 19 and 6 NYCRR 201.2(d) and Permit Condition #5 (Permit to Construct EP2).

Complaint paragraph B7 alleges reporting violations from on or about November 13, 1991 to on or about September 17, 1992, in that Respondents failed to maintain, and failed to submit to the Department on a quarterly basis, logs which contained entries for each of the instances cited in Complaint paragraph B6, in violation of ECL Article 19, 6 NYCRR 201.2(d) and Special Permit Conditions #5B and #5E (Permit to Construct EP2).

The regulatory and statutory authority cited in the Consent Order reporting violations and in the allegations of Complaint paragraph B7 are the same. Therefore, res judicata functions to bar relitigation of the reporting cause of action alleged in Complaint paragraph B7, for the time period addressed in the Consent Order. Accordingly, the June 22, 1994 Ruling should be modified to limit Staff's cause of action in Complaint paragraph B7, to litigate only the reporting violations alleged to have occurred after May 8, 1992 (the most recent time period addressed by the Consent Order).

Therefore, upon review of the parties' filings on this motion for reconsideration and the earlier filings in this action, the June 22, 1994 Ruling is hereby modified. Under the doctrine of Res Judicata, Staff is precluded from pursuing that portion of its cause of action set forth in Complaint paragraph B7 for the time period prior to May 9, 1992.

Other relief sought in Respondents' motion for reconsideration is denied, for reasons set forth in the June 22, 1994 Ruling.

/s/
Administrative Law Judge
Albany, New York
July 12, 1994

To:
Sanford Strenger, Esq.
Farrell, Fritz, Caemmerer, Cleary
Barnosky & Armentano, P.C.
Attorneys for Respondents
EAB Plaza
Uniondale, New York 11556-0120

Lori Riley
Regional Attorney
NYSDEC Region 1
SUNY Campus - Building 40
Stony Brook, New York 11790-2356

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