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Southold, Town of - Ruling, March 17, 1993

Ruling, March 17, 1993

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of 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 May 2, 1991, the Department of Environmental Conservation (the "Department" or "DEC") served upon the Town of Southold (the "Respondent") a Notice of Hearing and Complaint. This complaint was broken into four causes of action, the first alleging a wide array of solid waste violations. The second cause of action alleged violation of the Long Island Landfill Law (ECL Section 27-0704, or the "LILL"). (This allegation was repeated in a motion for summary order served contemporaneously with the complaint.) The third cause of action alleged violations of two consent orders, one from 1979 and the other from 1984. The fourth cause of action alleged mining without a permit at one of the two landfills alleged to be operated by the Respondent.

With the Respondent's consent and permission of the Administrative Law Judge ("ALJ"), the Department amended several of the complaint's citations by letter dated May 23, 1991, after which the Respondent served a timely answer on June 11, 1991. This answer included denials of most of the complaint's allegations; in addition, it alleged 21 affirmative defenses. By motion dated August 6, 1991, the Department requested dismissal of these defenses on the grounds they either lacked merit or were not legally cognizable. On September 9, 1991, the Respondent filed papers in opposition to the motion to dismiss; the Department responded in a reply affirmation dated September 13, 1991.

With the receipt of these papers it is now appropriate to rule on the Department's motion to dismiss affirmative defenses. For the sake of hearing efficiency, these defenses should be addressed now so the parties are on notice as to how, if at all, they will be entertained. As an ALJ, I have the power to rule on the Department's motion to dismiss affirmative defenses, subject to review by the commissioner's designee upon receipt of my hearing report [6 NYCRR Section 622.12(a)(3)]. I lack authority to strike any defense from the pleadings, but I can "dismiss" those defenses I will disregard (i.e., those which I will not hear and will not consider). These rulings address each of the 21 alleged defenses as well as two other motions made by the parties: (1) the Respondent's motion for leave to serve interrogatories; and (2) the Department's motion for a protective order related to the Respondent's demand for documents.

MOTION TO DISMISS AFFIRMATIVE DEFENSES

Position of the Department

The Department seeks a dismissal of the Respondent's affirmative defenses, arguing that they are groundless or do not state legal defenses, or both. According to the Department, these defenses should be dismissed now so that they do not confuse or complicate the hearing, and do not extend discovery into matters that cannot be heard or decided within the context of the hearing.

Position of the Respondent

The Respondent contends its affirmative defenses are properly raised in that they put the Department on notice as to facts and legal issues that, if established, will defeat all or parts of the complaint, or will mitigate damages with regard to any proven violations. According to the Respondent, the merits of its defenses cannot be determined until the hearing's conclusion.

Discussion

In an enforcement action, the Respondent has the burden to plead and establish any affirmative defense it has with regard to the complaint. Generally speaking, an affirmative defense would be any new material that, if true, would be a defense to any or all of the charges. Such a defense would be raised in the Respondent's answer and the Respondent would then have an opportunity to prove it as part of the hearing, typically after the Department's case.

In this matter the Respondent has alleged 21 affirmative defenses. Each of them is examined in the following discussion.

(1) The complaint, as amended, fails to state a claim upon which relief can be granted.

On its face the Department's complaint charges various violations of the state regulations for which ECL Article 71 provides relief. The hearing will demonstrate what charges can be proven; at this time, it is clear the complaint gives notice of what is charged and the elements of each cause of action. For these reasons this defense is DISMISSED.

(2) Throughout the years in question, the Respondent filed numerous engineering reports, plans, studies and other documents in compliance with applicable statutory and regulatory requirements.

Department regulation provides that "Respondent's answer shall contain a statement of any facts which constitute the grounds of an affirmative defense" [6 NYCRR Section 622.5(c)]. As stated, this claim is too unclear for me to know whether a defense is raised and, if so, to what charges it is meant to apply.

A ruling on this defense is reserved, allowing the Respondent an opportunity to amend its answer with a statement of facts it intends to establish, and a citation to the charge (or charges) to which the defense relates. In particular, I demand a specification of the "documents" referred to and the requirements they purportedly satisfy. To the extent these documents are shown to establish a defense, they may be brought into the record upon cross-examination of the Department's witnesses or as part of the Respondent's own case, after the Department has rested.

(3) The Department authorized the operation of Respondent's solid waste facility.

Like the prior asserted defense, this claim is too vague to consider. A ruling on this defense is also reserved, allowing the Respondent an opportunity to amend its answer with a statement of facts it intends to establish, and a citation to the charge (or charges) to which the defense relates. This amendment must explain what "authorization" there was for landfill operation.

(4) The Department is barred from maintaining its enforcement proceeding on the grounds of estoppel, waiver and laches.

Under the equitable doctrine of estoppel, a party is barred from asserting a right by virtue of its wrongful or negligent conduct, such conduct inducing reliance by a party that is entitled to rely on it, and who changes its position to its detriment or prejudice. The courts have not absolutely precluded the possibility of estoppel against a government agency, but have only recognized it in rare cases. [See New York State Medical Transporters Assoc. v. Perales, 77 NY2d 126, 564 NYS2d 1007 (1990)]. As a general rule governmental units cannot be estopped when acting, as here, in a governmental capacity [57 NY Jur 2d, Estoppel, Ratification and Waiver, Section 68]. The Respondent has not alleged facts which constitute its estoppel defense; for that reason, it is not clear whether this is the rare case where estoppel should apply. A ruling on this defense is reserved to provide Respondent one last opportunity to state the facts supporting the defense, as is required by 6 NYCRR Section 622.5(c).

Regarding waiver, it is defined as a voluntary relinquishment of a right with full knowledge of the facts. It differs from estoppel since it is predicated on intent and there is no need to show reliance on the other party's conduct. Unlike estoppel, waiver is never a valid defense, since public officers have no power or authority to waive law enforcement on behalf of the public, and their acts in this respect are not binding upon the public [57 NY Jur 2d, Estoppel, Ratification and Waiver, Section 77].

The defense of laches requires a showing of delay and prejudice. The Respondent in its answer has alleged no facts establishing prejudice. Even if it had, laches may not be interposed against the state when acting in a governmental capacity to enforce a public right [Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, at 177 (n.2) (1985)].

For the reasons cited above the defenses of waiver and laches are DISMISSED.

(5) The Department is barred by operation of the statute of limitations from enforcing the purported consent orders alleged in the third cause of action.

According to the Respondent, enforcement of the two consent orders referenced in the third cause of action is barred by virtue of the six-year statute of limitations related to actions upon a contractual obligation. This statute of limitations is derived from the Civil Practice Law and Rules ("CPLR") [Section 213(1)], which does not govern this hearing. The CPLR does not apply to administrative proceedings because they are not "civil judicial proceedings" within the meaning of CPLR 101 [United States Power Squadrons v. State Human Rights Appeal Board, 84 AD2d 318, 445 NYS2d 565 (2d Dep't 1981), aff'd, 59 NY2d 401, 465 NYS2d 871 (1983)]. For this reason alone the defense must be and is hereby DISMISSED.

(6) The Department is barred by operation of the statute of limitations from maintaining this enforcement action.

Administrative enforcement actions are not governed by fixed statutes of limitations. Therefore, this defense is DISMISSED.

(7) The Long Island Landfill Law (Section 27-0704) is unconstitutional as applied to the Respondent.

On May 4, 1992, the Appellate Division of State Supreme Court, Second Judicial Department, issued an opinion and order stating that as applied to the Respondent, the Long Island Landfill Law is not unconstitutional. On February 18, 1993, the State Court of Appeals declined to hear an appeal of this decision. The constitutionality of the Long Island Landfill Law, as applied to this Respondent, has been decided with finality by the courts. As an affirmative defense, it is therefore DISMISSED.

(8) The Department is selectively enforcing ECL Article 27 and 6 NYCRR Part 360 against the Respondent.

Selective enforcement is a constitutional issue that is not before me as an administrative officer and must be submitted to a court. [See Matter of 303 West 42nd Street v. Klein, 46 NY2d 686, 693 n.5 (1979), citing Matter of DiMaggio v. Brown, 19 NY2d 283, 291-292 (1967).] As with the prior affirmative defense, no evidence will be received, no argument will be heard, and no discovery will be authorized. This defense is hereby DISMISSED.

(9) The Respondent will not receive a fair hearing and determination as a result of the Commissioner's bias and pre-judgment of the allegations.

This defense is rendered moot by the Commissioner's recusal from decisions in this matter. It is DISMISSED.

(10) Amendments to the Part 360 regulations cannot be retroactively applied to Respondent's facility.

The Department alleges many instances of what it perceives to be continuing violations of solid waste management regulations. These regulations have been recodified over the years; therefore, some charges relate to and cite several successive sets of regulations. The Department asserts that its regulations have not been applied retroactively, and that the Respondent has been charged with violating only those regulations in effect at the time of each alleged unpermitted or unauthorized activity. This is apparent from the face of the complaint and therefore the defense is hereby DISMISSED. The hearing itself will determine which violations, if any, are of a continuing nature.

(11) The Department's inaction and arbitrary conduct has made compliance with Article 27 and Part 360 impossible.

Clearly the Respondent could not be faulted for illegal conduct which was impossible to avoid. Even so, the answer does not specify facts which might support the alleged defense. A ruling on this defense is reserved to allow an opportunity for the Respondent to submit a statement of facts which, if true, would establish the impossibility of compliance. The Respondent must also specify the charges as to which this defense is related.

(12) The arbitrary conduct of the Department has prevented the Respondent from implementing in a timely fashion alternatives and additions to its present solid waste management facilities and has prevented the Respondent from implementing its Solid Waste Management Plan in a timely fashion.

Again, the Respondent does not submit a statement of facts which constitute the grounds of this defense. It is unclear what conduct is referred to or how this defense is relevant to specific charges. A ruling on this defense is reserved, and the Respondent shall have an opportunity to amend its answer, addressing these points.

(13) The imposition of fines upon the Respondent, under the facts and circumstances involved, would be unconscionable and irrational.

This clearly does not state an affirmative defense and for that reason is DISMISSED. Needless to say, the parties will have and opportunity to demonstrate those facts and circumstances which bear on the issue of civil penalties, assuming any of the charges are proven. The hearing shall not be bifurcated and therefore any evidence relevant to civil penalties shall be received as part of the parties' cases relating to the truth or falsity of the charges.

(14) The groundwater in the vicinity of the Respondent's solid waste management facility is impacted from agricultural usage. The solid waste and/or leachate allegedly entering the surface waters and/or groundwater at the site do not pose a threat to the public or to the environment.

The impact on groundwater from agricultural usage would be irrelevant except to rebut any claim the Department might make attributing to the Respondent actual groundwater contamination. Any threat to the environment caused by the Respondent's activities would be relevant to fashioning relief and setting penalties. The truth of the Respondent's assertions cannot be gauged at this point; even if true, they would not be defenses to the charges. As affirmative defenses, they are therefore DISMISSED.

(15) The alleged failure of Respondent to place daily, intermediate or final cover at the site does not pose any threat to the public or to the environment.

Again, this claim is relevant to relief, but is not a defense to any charge that cover was not placed. As an affirmative defense, it is DISMISSED.

(16) The 1979 consent order sets forth the penalty should there be non-compliance.

It is clear from the consent order that the penalty is for violations that predate the order. The consent order does not limit the Department in addressing violations that occur subsequent to the order's issuance. The Respondent's claim lacks merit and is DISMISSED as an affirmative defense.

(17) The Department is barred from proceeding as to any alleged violations of Part 360 purportedly occurring prior to January 2, 1984 under the doctrines of res judicata and collateral estoppel.

A ruling on this defense would be premature since the answer does not contain a statement of facts constituting the grounds of Respondent's claim. It is apparent that the Respondent and the Department entered into a consent order, executed on January 25, 1984. This order resolved allegations that the "Respondent caused or permitted to be caused, the operation of a landfill in violation of operating requirements." The order contains no reference to the specific violations meant to be addressed, or to a complaint or other document which might state the basis of the action.

Certainly any violations shown to have been settled under the consent order could not now be relitigated. Even so, to support the defense, the Respondent would have to plead and then prove that the consent order encompassed violations contained within the pending charges. This proof will be heard after the Department presents its case; for now, a statement of facts must be appended to the answer.

A preliminary review of the charges indicates at least two that allege violations of operating requirements on a continuous basis since 1977. These relate to a failure to minimize leachate generation and migration (para. 12) and failure to implement a leachate monitoring system (para. 16). Other charges cited by the Respondent appear unrelated to operating requirements; i.e., operation without a permit (para. 7) is a permit requirement, and failure to maintain sufficient separation from groundwater (para. 50) is a construction requirement. It is not at all clear that they were addressed by the consent order for those years prior to 1984.

A ruling on this defense is reserved, providing an opportunity to amend the answer.

(18) The Respondent does not own or operate the solid waste facility on Fisher's Island.

This claim is encompassed within the Respondent's denial of complaint paragraph three. It is not properly an affirmative defense and is therefore DISMISSED. It is the burden of the Department to prove that the Respondent operates the Fisher's Island landfill and not the Respondent's burden to prove otherwise. For the sake of efficiency, this issue should be addressed and resolved prior to hearing evidence on alleged violations at the Cutchogue site. The Department is therefore directed to provide me and the Respondent with this landfill's most recent operating certificate and any other documentation and argument it has to support its claims of ownership and operation. This shall be done within two weeks of this ruling, after which the Respondent shall have two weeks from receipt of the Department's submission to provide documentation and argument in rebuttal. Assuming the parties cannot agree on the identity of the landfill owner/operator, I will rule on this point based on the parties' submissions and any additional proof and argument I find to be required.

(19) The stated purpose of the Long Island Landfill Law has no rational relation to Fisher's Island since that island does not rely on Long Island's groundwater aquifer or any aquifer for its water supply.

The Fisher's Island landfill is within Suffolk County and is therefore subject to the LILL. Whether the LILL has a rational basis, as applied to Fisher's Island, is a question related to that law's constitutionality. As such, it will not be entertained in this hearing. As an affirmative defense, it is DISMISSED.

(20) The Respondent qualifies for administrative discretion in extending the closure requirements of the Long Island Landfill Law.

With regard to the Cutchogue landfill, this question has already been reached and decided by the Commissioner's designee, Edward Sullivan. In deciding the Department's motion for summary order, he said that "no allowance for continued landfilling for any substantial amount of time, except as permitted by statute, would be consistent with the statute. . . Only limited discretion to extend the legislatively mandated deadline exists and . . . such discretion could only be exercised in order to avoid the disruption of essential government services." [Decision and Order, Town of Southold, DEC No. 1-4020, September 4, 1991; page 2].

Whether or how such discretion should be exercised for the Fisher's Island landfill could still be an issue for hearing; with regard to the Cutchogue landfill, the issue is rendered moot by the closure order. At any rate this is not a defense to violation of the LILL. For that reason, it is DISMISSED, reserving to the Respondent an opportunity to prove how closure of the Fisher's Island landfill would unavoidably result in a disruption of essential government services. To limit this issue, proof will be restricted, and the Respondent will have to pre-file its testimony once the Department has completed its case. No submission will be required at this time.

(21) The Department has two proceedings pending (i.e., one by complaint, the other by motion for summary order) seeking identical relief under the Long Island Landfill Law.

The violations of the LILL alleged by the Department were encompassed by a motion for summary order and by the complaint in this action, both of which were served contemporaneously. The motion for summary order was granted with regard to the Cutchogue landfill; therefore, the question of liability is decided and, by virtue of res judicata, has been eliminated from the complaint. By a ruling dated September 4, 1991, I denied the motion for summary order as it relates to the Fisher's Island landfill. That means that this hearing will decide all questions related to the Fisher's Island landfill, among them whether the landfill is operated by the Respondent, whether the landfill is operating in violation of the LILL, and, if it is so operating, what relief should be granted. The Department will not get "double relief" and, for that reason, the defense is without merit and is hereby DISMISSED.

MOTION FOR LEAVE TO SERVE INTERROGATORIES

Under a cover letter dated July 17, 1991, the Respondent submitted a set of proposed interrogatories and requested leave to serve them upon the Department. Such leave was requested pursuant to 6 NYCRR Section 622.8(e), which provides that "written interrogatories shall be allowed with leave of the hearing officer in the interest of justice and where interrogatories are likely to expedite the proceeding."

By letter dated August 8, 1991, the Department expressed opposition to the proposed interrogatories. The Respondent's counsel submitted an affirmation dated September 3, 1991, in support of the interrogatories and in response to the Department's objections.

Position of the Respondent

The Respondent claims its interrogatories are limited in scope and relate directly to the complaint, to alleged affirmative defenses, and to facts which would mitigate penalties proposed by the Department. The Respondent argues that the interrogatories will enable it to properly prepare a defense and focus those facts that are in dispute, thereby limiting proof and expediting conduct of the hearing.

Position of the Department

The Department argues that almost all of its proof is embodied in documents, most of which are being voluntarily produced. Therefore, the Department submits that interrogatories would be extraneous, serving only to harass the Department and delay its pursuit of the case.

Discussion

As the proponent of interrogatories, the Respondent has the burden of showing they are in the interest of justice and are likely to expedite this proceeding. Upon a review of the parties' submissions, the Respondent has met this burden with regard to most (but not all) of its request. In this case interrogatories will define and quite possibly limit the factual issues raised by what on review is a vague and broadly written complaint. The interrogatories will help to establish the bases and parameters of charges, eliminating confusion and surprise that might otherwise occur at the hearing in this matter.

Answering the interrogatories will be a burden to the Department but not an undue burden, given the broad sweep of its complaint. Any burden assumed by the Department to answer the interrogatories will be eased by what it concedes is the largely documentary nature of its proof. Where the answer to an interrogatory is encompassed by a previously generated document, it would be enough to reference that document in the response and to annex a copy, as was apparently done in the Riverhead matter.

The Department expresses concern that in the Riverhead matter use of interrogatories did not shorten the witness examination. This can't be known without also knowing how long it would have been without interrogatories.

Again, the Respondent has met its burden with regard to most (but not all) of its request. The major exception relates to interrogatories bearing upon the Department's handling of landfills other than those alleged to be operated by the Respondents. This information is not relevant to charges in this complaint and, for that reason, I will not grant leave for inquiry. This information is relevant to the alleged defense of selective prosecution, although this is a constitutional defense and, as such, is not before me as an administrative officer. I will not be taking evidence on the issue of selective prosecution and, for that reason, it would be superfluous to allow discovery on that point.

Ruling

Recognizing that interrogatories may be vacated where irrelevant, unduly broad, or unreasonably oppressive, I am allowing the Respondent's proposed interrogatories, subject to these refinements and limitations.

(1) Interrogatory No. 1 is allowed, although it shall be addressed in the manner stated in my ruling on Affirmative Defense No. 18, and not in the interrogatory format. This will require an answer by the Department to the Respondent and me.

(2) No. 2 is allowed with the exception of subpart (h), which requests information not relevant to the hearing.

(3) No. 3 is allowed in full.

(4) No. 4 is allowed with the exception of (i) [irrelevant].

(5) No. 5 is allowed in full.

(6) No. 6 is allowed with the exception of (l), (m) and (o) [irrelevant]. The Department shall answer (n) but only in relation to the landfills alleged to be operated by the Respondent. [As phrased, the interrogatory is too broad.]

(7) No. 7 is allowed in full.

(8) No. 8 is allowed with the exception of (k) [irrelevant].

(9) No. 9 is allowed with the exception of (d), (e) and (g) [irrelevant]. The Department shall answer (f) but only in relation to the landfills alleged to be operated by the Respondent. [As phrased, the interrogatory is too broad.]

(10) No. 10 is allowed with the exception of (g) [irrelevant].

(11) No. 11 is allowed with the exception of (g), (h) and (i) [irrelevant].

(12) No. 12 is allowed with the exception of (i), (j) and (k) [irrelevant].

(13) No. 13 is allowed with the exception of (i), (j) and (k) [irrelevant].

(14) No. 14 is allowed with the exception of (l) [irrelevant]. The Department shall answer (k) but only in relation to the landfills alleged to be operated by the Respondent. [As phrased, the interrogatory is too broad.]

(15) No. 15 is allowed with the exception of (e) and (f) [irrelevant].

(16) No. 16 is allowed with the exception of (f) and (g) [irrelevant].

(17) No. 17 is allowed with the exception of (f) and (g) [irrelevant].

(18) No. 18 is allowed with the exception of (f) and (g) [irrelevant].

(19) No. 19 is allowed with the exception of (g) and (h) [irrelevant].

(20) No. 20 is allowed with the exception of (g) and (h) [irrelevant].

(21) No. 21 is allowed with the exception of (g) and (h) [irrelevant].

(22) No. 22 is allowed with the exception of (f) and (g) [irrelevant].

(23) No. 23 is allowed with the exception of (h) and (i) [irrelevant].

(24) No. 24 is allowed with the exception of (e) [irrelevant].

(25) No. 25 is allowed with the exception of (e) [irrelevant].

(26) No. 26 is allowed with the exception of (e) [irrelevant].

(27) No. 27 is allowed with the exception of (c), (d) and (g). Subpart (c) is irrelevant. There is no allegation of a continuous violation; therefore, no need for an answer to subpart (d). Subpart (g) is irrelevant.

(28) No. 28 is allowed with the exception of (c), (d) and (g). Again, subpart (c) is irrelevant. There is no allegation of a continuous violation; therefore, no need for an answer to subpart (d). Subpart (g) is irrelevant.

(29) No. 29 is allowed with the exception of (c), (d) and (g). Again, subpart (c) is irrelevant. There is no allegation of a continuous violation; therefore, no need for an answer to subpart (d). Subpart (g) is irrelevant.

(30) No. 30 is allowed with the exception of (c) and (g) [irrelevant].

(31) With regard to No. 31, only (a) is allowed, and only with regard to Fisher's Island. Subparts (b) and (c) are irrelevant.

(32) With regard to No. 32, only (a) is allowed, and only with regard to Fisher's Island. Subparts (b) and (c) are irrelevant.

(33) With regard to No. 33, only (a) is allowed, and only with regard to Fisher's Island. Subparts (b), (c) and (d) are irrelevant.

(34) With regard to No. 34, only (a) is allowed, and only with regard to Fisher's Island. Subparts (b), (c) and (d) are irrelevant.

(35) With regard to No. 35, only (a) is allowed, and only with regard to Fisher's Island. Subparts (b), (c) and (d) are irrelevant.

(36) No. 36 is allowed with the exception of (g) and (l) [irrelevant].

(37) No. 37 is allowed in full.

(38) No. 38 is allowed in full.

(39) No. 39 is allowed in full.

(40) No. 40 is allowed in full.

(41) No. 41 is allowed, with the stipulation that the Department will provide its penalty calculation to me at the same time it is provided to the Respondent.

(42) No. 42 is allowed, as modified to request any requirements or standards governing approval of a closure plan.

(43) Allowance is granted only with regard to the first sentence. No answer is required as to the second sentence [irrelevant].

(44) No. 44 is allowed in full, with the stipulation that I, too, shall be provided with specification of the additional investigation and remediation sought by the Department.

(45) No. 45 is allowed with the exception of (f) [irrelevant].

(46) No. 46 is allowed with the exception of (d) [irrelevant].

(47) No. 47 is allowed with the exception of (e) [irrelevant].

Broadly stated, most of the interrogatories seek from the Department those facts which the Department contends support its allegations. The information sought is clearly relevant to the charges and therefore the requests are not improper. The Respondent also seeks a precise statement of the relief sought by the Department and the bases for that relief. I would agree that, on the question of relief, the complaint is ambiguous. To address the complaint, I need to know (1) what the Department considers to be the maximum potential penalty per charge, and (2) how that penalty is calculated. Where the Department is seeking less than that maximum potential penalty, I also need to know (3) what amount is being sought, again per charge (and not per cause of action, since causes of action have been drafted so as to frame multiple charges).

These three items shall be supplied to me and the Respondent at the same time the Department responds to the interrogatories. The Department is hereby afforded four weeks from the date of this ruling to answer the interrogatories, subject to an extension upon good cause shown, recognizing that the request is large and that answers will have to be coordinated between program and legal staff.

MOTION FOR PROTECTIVE ORDER

On August 8, 1991, the Department moved for a protective order related to the Respondent's request for documents, which was dated July 17, 1991, and incorporated in its proposed interrogatories. Department regulation provides that a protective order may be granted at the request of a party or by the hearing officer on his own initiative. Such an order is "designed to avoid unnecessary delay of the hearing or to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any party" [6 NYCRR Section 622.8(c)].

Ruling

The Department is entitled to and is hereby granted a protective order as to the production of documents relating to landfills other than those alleged to be owned and operated by the Respondent. These documents are irrelevant to the issues before me and to require their production would delay this hearing for no apparent purpose. The Department is also granted a protective order with regard to the production of any complaint from a third party provided the complaint does not document what is alleged in this matter to be a violation of the law. Complaints that triggered site visits where the visit (and not the complaint) forms the basis of a charge are irrelevant and need not be produced. Conversely, where the complaint is the basis of the charge, it must be produced, with the identity of the complainant, as there is no privilege against disclosure of this information.

The Department is not entitled to and is not granted protection against disclosure of documents related to its proposed requirement of a $1 million closure bond. Such documents form the basis for relief requested by the Department and it is a function of the hearing to determine whether such relief is appropriate.

Also, the Department is not granted protection against disclosure of documents related to studies about economic and environmental effects of operating the Respondent's landfills after December 19, 1990. Such documents could be relevant to relief yet to be granted for violation of the Long Island Landfill Law.

The Department is granted protection against disclosure of documents relating to Respondent's "Document Request No. 46," with the exception of any documents containing Department guidelines, policies and directives concerning standards for enforcement of the Long Island Landfill Law. All other documents encompassed by the request relate to affirmative defenses which have been dismissed (i.e., which will not be considered as part of this hearing).

Finally, judgment is reserved as to those documents where privilege is asserted. Among the privileges asserted by the Department are the attorney-client privilege (CPLR 4503) and privileges for attorney work product [CPLR 3101(c)] and material prepared for litigation [CPLR 3101(d)]. The documents as to which privilege is asserted are listed in an attachment to the Department's motion for protective order. These documents shall be provided to me promptly so I can determine whether privilege does, in fact, attach. For each document the Department shall indicate the numbered document request to which it is responsive and its argument for privilege with respect to that document. I will review each document in camera and then decide whether it must be disclosed.

CONSOLIDATION OF PENDING MATTERS

The Department initiated its proceeding against the Respondent by motion for summary order and also by complaint. The motion for summary order was decided by the Commissioner's designee on September 4, 1991, at which time he determined that the Respondent's Cutchogue landfill was operating in violation of the LILL. That determination, embodied in the order dated September 4, 1991, effectively decided the second cause of action in the Department's complaint, but only with regard to the Cutchogue landfill, and not with regard to the landfill on Fisher's Island.

In his decision on the motion for summary order, the Commissioner's designee remanded the issue of whether a civil penalty should be awarded for the Respondent's violation of the LILL. This issue can be addressed within the context of the complaint proceeding, as can all issues regarding the Fisher's Island landfill, since they were involved in both the complaint and the motion for summary order.

Department regulation provides that "in a proceeding which involves common questions of fact, the hearing officer, upon his own initiative, to avoid unreasonable delay and cost, may order a consolidation of actions" [6 NYCRR Section 622.12(c)]. For the sake of efficiency, I am doing this by consolidating within the complaint action all unresolved issues related to the motion for summary order (i.e., relief with regard to the Cutchogue landfill, and liability and relief with regard to the Fisher's Island landfill). Since these issues are also present within the complaint the consolidation of these actions will eliminate confusion and preclude any possibility of double relief being granted.

OTHER MATTERS

I have deferred issuing rulings in this matter since September, 1991. During that time various issues have been raised and decided in court. On November 30, 1992, I wrote to the parties' counsel, directing that the Department provide a report (1) on the status of the matter and (2) on its intent to resume litigation. By a letter dated December 7, 1992, Mary Carpentiere, Department counsel, said the matter remained unresolved and therefore would require an enforcement hearing. The Department's intent to proceed was confirmed in a conference call I had on December 15, 1992, with Ms. Carpentiere and Frank Isler, Respondent's counsel.

My and the Department Staff's intent to proceed was challenged by the Respondent. The Respondent moved to punish DEC for contempt of a court order which the Respondent said had stayed this proceeding. This motion has since been denied by the Supreme Court, Suffolk County. This proceeding is not stayed and has not been settled. Also, the parties have not agreed that the hearing be deferred. Therefore, I am resolving the pending motions, and moving the hearing forward.

In her letter of December 7, 1992, Ms. Carpentiere said the Department intended to seek leave to serve a supplemental complaint to include allegations that have occurred since the first complaint was filed. No leave is required, although if Staff wants to consolidate that complaint with the existing one, or to have a joint hearing on both complaints, it should forward the new complaint to me at the same time it is served upon the Respondent, with an appropriate motion, at which time I will give the Respondent an opportunity to respond.

Should Staff also want to amend the existing complaint, as is suggested in Ms. Carpentiere's letter, it shall do so by written motion, stating exactly what amendments are proposed.

Finally, DEC Staff shall supplement its response to the Respondent's prior discovery demand as soon as possible to the extent there are documents generated since the demand was first answered and to the extent pre-existing documents have subsequently been discovered.

ORDER OF DISPOSITION

  1. As to those affirmative defenses on which I have reserved rulings, the Respondent is granted four weeks from the date of these rulings to submit an amended answer. Failure to submit an amended answer will result in dismissal of those affirmative defenses on which rulings have been reserved. Should an amended answer be served, the Department is reserved the opportunity to renew at any time its motion to dismiss the remaining affirmative defenses. The Department is not required to do this; if it does not renew its motion, these defenses will be taken up in the context of the hearing itself.
  2. Within two weeks of the date of these rulings, the Department shall provide to me and the Respondent the most recent operating certificate for the Fisher's Island landfill and any other documentation and argument it has to support its claims of ownership and operation. The Respondent shall then have two weeks from its receipt of this submission to provide to me and the Department any documents and argument in rebuttal.
  3. Within four weeks of the date of these rulings, the Department shall answer the Respondent's interrogatories and request for production of documents, recognizing that on questions of relief, certain of the responses shall also be provided to me. The Department shall promptly provide to me copies of those documents responsive to the requests where a privilege against disclosure is asserted. I will then determine whether the privilege has been properly invoked.
  4. I have received the Department's notice to produce documents, dated August 8, 1991. Given my rulings on the affirmative defenses, I am on my own initiative granting the Respondent a protective order with regard to paragraphs 1, 4 (but not with regard to estoppel), 5, 6, 7, 8, 9, 10, 16, 19, 20, 21, 22, 23, 24, and 25, as these relate to matters that will not be taken up in the hearing. All other documents shall be furnished to the Department within four weeks of the date of these rulings, excepting those documents for which a protective order is sought. Any motion for protective order shall be submitted (with supporting arguments) no later than two weeks from the date of these rulings. Should such a motion be made, the Department shall have two weeks from receipt of the motion to respond, after which I will make a ruling.
  5. Given the exhaustive nature of the discovery demands to date, I am not expecting others will be made. Any future demands meeting objection from opposing counsel shall be brought to my attention in writing and will be allowed only by my leave for good cause shown.
  6. Once existing demands have been complied with, I anticipate holding a pre-hearing conference with counsel for the parties. Its purpose shall be to set hearing dates and procedures. With the level of disclosure anticipated, I expect there will be no problem setting consecutive hearing dates, and requiring cross-examination of witnesses immediately after the end of their direct testimony. At the pre-hearing conference I will be seeking stipulations from the parties as to relevant facts which are not contested. Prior to the conference each party shall provide me its own list of facts on which it expects no dispute.
  7. Any disputes arising from these rulings or other hearing-related issues may be brought to my attention in writing, on notice to opposing counsel. As necessary, I will address them with you in writing or by conference call initiated by my office. Needless to say, the parties should first attempt to resolve matters directly with each other. If this is not possible, I should be contacted promptly. Any extension of deadlines set by these rulings will require my prior approval.

Edward Buhrmaster
Administrative Law Judge

Dated: March 17, 1993
Albany, New York

TO: Frank Isler, Esq.
456 Griffing Avenue
Riverhead, New York 11901

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

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