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Southold, Town of - Ruling 3, October 28, 1993

Ruling 3, October 28, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations
of Articles 23 and 27 of the Environmental
Conservation Law ("ECL") of the State of
New York and Parts 360 and 420 of Title 6
of the Official Compilation of Codes,
Rules and Regulations of the State of
New York ("6 NYCRR") by

RULINGS OF THE
ADMINISTRATIVE
LAW JUDGE

TOWN OF SOUTHOLD,
Respondent.
DEC No. 1-4020

Background

On August 8, 1991, Department Staff served a notice to produce documents. Action on this notice was deferred due to court litigation. In rulings dated March 17, 1993, I sua sponte granted the Respondent a protective order with regard to certain of the Department's demands, as they related to matters I said would not be taken up at hearing. In my rulings I ordered that the Respondent answer the remaining demands except to the extent it requested a further protective order.

By papers dated April 7, 1993, the Respondent moved for a protective order as to all remaining demands in the Department's notice to produce. This motion was made pursuant to 6 NYCRR 622.8(c) and CPLR sections 3103 and 3122. On June 11, 1993, Department Staff filed an affirmation in opposition to the motion for protective order.

The Department's hearing regulations provide that a protective order may be issued by the assigned hearing officer "to avoid unnecessary delay of the hearing or to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any party" [6 NYCRR 622.8(c)].

Rulings

My rulings as to the remaining parts of Staff's notice to produce documents, all of which are contested by the Respondent, are as follows.

  • Paragraphs 2, 3, 4, 11 and 12. The motion for a protective order is GRANTED since with the recent amendment of its answer, the Respondent has provided a reasonably specific list of the documents on which intends to rely to establish its affirmative defenses. These documents were either generated by the Department (in the case of notice paragraph 3, for example) or filed with the Department (see, for example, notice paragraph 2). In either case the Department should already have copies of them. Requiring their production again pursuant to this notice would unnecessarily delay a hearing in this matter and pose an undue burden to the Respondent.
  • Paragraph 13. The motion is GRANTED since the demand is vague and overbroad, calling, in effect, for all documents bearing on the "facts and circumstances" of this case. Whether or to what extent monetary penalties should be imposed for any proven violations will be a matter for argument, based on the entire hearing record.
  • Paragraphs 14 and 15. The motion is DENIED since the demands relate to matters raised in the Respondent's answer which bear on issues of relief. The demands are not vague because the Respondent presumably knows which documents support its own assertions.
  • Paragraph 17. The motion is GRANTED as the Respondent is already required by my rulings of October 5 and 27, 1993, to submit its proof and arguments on the res judicata defense. In light of these rulings, the Department's demand is now redundant.
  • Paragraphs 18 and 26. The motion is GRANTED since in my rulings of October 5, 1993, I announced my intent to recommend dismissal of all charges related to alleged violations at the Fishers Island landfill.
  • Paragraph 27. The motion is GRANTED since any documents responsive to this demand would already be in the possession of the Department.
  • Paragraph 28. The motion is GRANTED as the demand is unnecessarily broad and therefore burdensome to the Respondent. Presumably the Department has copies of any written statements it has made to the Respondent. Rather than answer the demand as framed, the Respondent shall answer it only with regard to the following claims asserted in its amended answer:
  • That the Respondent had a Part 360 permit to operate its Cutchogue landfill during the time frames referenced in the complaint (amended answer paragraph 51);
  • That the Respondent's continued operation of the Cutchogue landfill would comply with the law (amended answer paragraph 66); and
  • That during the period covered by the amended complaint, the Respondent did a commendable job with respect to its leadership and ongoing efforts to address solid waste management issues in a timely fashion (amended answer paragraph 68).

These claims are attributed to the Department's own written statements. As the answer is rather indefinite as to when these statements were made, the Respondent shall simply provide copies of the statements themselves.

  • Paragraph 29. The motion is GRANTED. That the Respondent continued operations of its Cutchogue landfill after December 18, 1990, is already decided. That this was intentional is not in serious dispute.
  • Paragraph 30. The motion is GRANTED as the Department has not demonstrated why the information requested is relevant to the issue of civil penalties for violation of the Long Island Landfill Law. Also, the demand is vague and overly broad.
  • Paragraph 31. The motion is DENIED since the information requested is relevant to environmental harm that may have been caused by any of the alleged violations, and is therefore relevant to the assessment of penalties.
  • Paragraphs 32 and 33. The motion is DENIED since the documents requested would be relevant to the complaint's allegation, denied by the Respondent, of mining at the Cutchogue site without a permit.
  • Paragraphs 34 and 43. The motion is GRANTED given that the demands are vague, overbroad, and to a certain degree duplicative of other demands.
  • Paragraphs 44 and 45. The motion is DENIED since the documents requested would be relevant to the complaint's allegations, denied by the Respondent, that the Respondent did not comply with the 1979 and 1984 consent orders.
  • Paragraph 46. The motion is GRANTED based on the lack of apparent relevance of the documents requested.

Order of Disposition

  1. The Respondent shall comply with the Department Staff's notice to produce documents according to the rulings made above.
  2. All documents shall be delivered to Department counsel within two weeks of the date of these rulings.

Other Matters

Under a cover letter of June 11, 1993, copied to the Respondent, the Department provided me documents which are responsive to Respondent's discovery request, but was to which various privileges are asserted. My review of the documents, cross-referenced with Staff's letter, indicates that I have received documents 15-21 and 23-25 from list No. 1 and all documents from list No. 2. If Staff intended that I receive any others from its list, it shall provide these documents immediately.

In my rulings of March 17, 1993, I did not explicitly provide the Respondent an opportunity to comment on Staff's assertion of privilege, as outlined in its letter. The Respondent has made no submission on its own and has not sought permission to file a response either by letter or during one of our many conference calls.

If the Respondent wants to file a response to Staff's letter of June 11, 1993, prior to my making rulings on the issue of privilege, it shall do so within a week from the date of these rulings. My rulings on the issue of privilege will be in writing. When they are made, all of the furnished documents will be returned to Staff with instructions that it produce those for which I do not find a privilege to attach.

Edward Buhrmaster
Administrative Law Judge

Dated: October 28, 1993
Albany, New York

TO: Frank Isler, Esq.
Smith, Finkelstein, Lundberg, Isler and Yakaboski
456 Griffing Avenue, P.O. Box 389
Riverhead, New York 11901

Mary Carpentiere, Esq.
NYSDEC - Region 1
SUNY Campus, Building 40
Stony Brook, New York 11790-2356

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