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Sears Petroleum - Ruling and Order 2, March 12, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations
of Article 17 of the Environmental
Conservation Law of the State of
New York and Title 6 of the Official
Compilation of Codes, Rules and
Regulations of the State of New York
Part 613 by R4-1484-93-01

RULING AND ORDER ON
DISCOVERY AND
PROTECTIVE ORDER
DEC Nos. R4-1408-92-10

SEARS PETROLEUM AND TRANSPORT CORPORATION RESPONDENT

Summary

With a cover letter dated February 16, 1993, the Respondent served a Notice to Produce documents relating to the captioned enforcement action on the Department's Region 4 Staff (the Department). On February 19, 1993, the Department moved for a Protective Order from the Respondent's Notice to Produce. With a cover letter dated February 23, 1993, the Respondent filed an affirmation opposing the Department's motion for a Protective Order.

The nine items listed in the Respondent's Notice to Produce are addressed individually below. Briefly, the Respondent shall confer with the Department about Items 1, 2, 5, 6, and 7. I grant the Department's request for a Protective Order for the documents described in Items 3 and 4 unless the Respondent submits a more specific request. I partially grant the Department's request for a Protective Order for the documents described in Item 8 unless the Respondent submits a more specific request. With respect to Item 9, the Department shall prepare a list of privileged documents governed by the CPLR.

Items 1, 2, 5, 6, and 7

In the affirmation opposing the Protective Order, the Respondent acknowledged possessing at least some portion of the documents requested in Items 1, 2, 5, 6, and 7 of the Notice to Produce. The requested documents include copies of two Consent Orders, the Respondent's Major Onshore Storage Facility License, the Respondent's Spill Pollution Containment and Control Plan for the Glenmont Terminal, and the Respondent's SPDES permit. In its affirmation, the Respondent stated the request is to insure these documents are complete.

I will not consider the documents described in Items 1, 2, 5, 6, and 7 in the Respondent's Notice to Produce. There is no dispute about whether the Department issued the documents to the Respondent and about whether the Respondent has the documents. It is inappropriate for the Respondent to involve the Administrative Law Judge since the Respondent seeks confirmation of the contents of the documents. Also, it is inappropriate for the Department to request protection of the documents. The Department provided no basis to support its request for a Protective Order particularly since the Department has already issued the documents to the Respondent. Therefore, I direct the Respondent to confer with the Department about the documents described in Items 1, 2, 5, 6, and 7 of the Respondent's Notice to Produce to determine whether the Respondent has a complete set of these documents.

Items 3 and 4

Items 3 and 4 of the Respondent's Notice to Produce request all documents about the 1991 and 1992 Consent Orders. In its motion for Protective Order, the Department argued the Respondent's request did not specify the documents with reasonable particularity [Binghamton v. Arlington Hotel, 32 AD2d 715 (3rd Dept 1969)]. I agree with the Department.

The Respondent's request does not identify the documents described in Items 3 and 4 with reasonable particularity. Therefore, I grant the Department's request for a Protective Order of the documents described in Items 3 and 4 until the Respondent submits a more specific request. If the Respondent intends to submit a more specific request, the request must be filed within ten business days after receipt of this ruling and order.

Item 8

Item 8 of the Respondent's Notice to Produce requests inspection reports and "other documents about the release of petroleum at the Respondent's facility on January 14, 1993. The Department shall immediately produce all inspection reports about the release of petroleum at the Respondent's facility on January 14, 1993.

The Respondent's request for other documents about the alleged January 14, 1993 petroleum release lacks particularity. Therefore, I grant the Department's request for a Protective Order of the unspecified documents described in Item 8 of the Respondent's Notice to Produce until the Respondent submits a more specific request. If the Respondent intends to submit a more specific request, the request must be filed within ten business days after receipt of this ruling and order.

Item 9

Item 9 of the Respondent's Notice to Produce requests telephone logs and intradepartmental memoranda. With respect to Item 9, the Respondent modified its request in the affirmation to telephone logs and intradepartmental memoranda between Richard Ostrov and Mark Klotz that relate to the subject enforcement action.

In its motion for Protective Order, the Department argued some documents described in Item 9 of the Respondent's Notice to Produce are privileged. However, the Department did not identify the documents or the nature of the privileged attached to the documents. Therefore, the Department shall prepare a list of the documents the Department asserts are privileged as provided by the CPLR. For each document alleged to be privileged, the Department shall give the date of the document, briefly describe the document's content, and identify the author(s), the recipient(s) and their respective job titles. The Department shall state the nature of the privilege attached to each document. In a sealed envelope separate from the list described above, the Department also shall provide me with a copy of the documents asserted to be privileged for my in camera review. The Department shall mark the sealed envelope: "Confidential to ALJ, Do Not Open."

The Department shall provide me with the list and copies of the documents within five business days after receipt of this ruling and order. The Department shall provide the Respondent with a copy of the list only.

Within ten business days after receipt of this ruling and order, the Respondent shall comment about each document identified on the Department's list, and state any objections to the privilege asserted by the Department. I will issue a ruling about any remaining disputed documents after reviewing the Department's list, the Respondent's comments/objects and, if necessary, the documents themselves.

The Department shall disclose immediately any documents described in Item 9 of the Respondent's Notice to Produce not asserted to be privileged.

____________________________
Daniel P. O'Connell
Administrative Law Judge
NYSDEC - Office of Hearings
50 Wolf Road
Albany, New York 12233-1550
FAX: 518-485-7714

Dated: Albany, New York
March 12, 1993

To: Sidney L. Manes, Esq.
Green and Seifter, P.C.
One Lincoln Center
Syracuse, NY 13202-1387
FAX: 315-422-3549

David H. Keehn, Esq.
Assistant Regional Attorney
NYSDEC Region 4
2176 Guilderland Avenue
Schenectady, NY 12306

FAX: 518-382-1065

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