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Traveler's Petroleum Corp. - Ruling, October 5, 2001

Ruling, October 5, 2001

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of the
New York State Environmental Conservation
Law (ECL) Articles 19 and 71, and Part 230
of Title 6 of the Official Compilation of Codes,
Rules, and Regulations of the State of
New York (NYCRR) by:

Ruling on Motion for
Clarification of
Affirmative Defenses

DEC Index No.: D1-1001-01-02

Traveler's Petroleum Corp. 386 Lake Avenue St. James, New York 11780

Adil Bayat 386 Lake Avenue St. James, New York 11780

Respondents

PROCEEDINGS

The New York State Department of Environmental Conservation (the Department) served a notice of hearing and complaint dated July 5, 2001 upon Traveler's Petroleum and Adil Bayat (Respondents). The Department's complaint asserts that the Respondents own and/or operate a gasoline dispensing site located at 386 Lake Avenue, St. James, (Suffolk County) New York, known as the Traveler's Petroleum Corporation.

The complaint alleges three causes of action based on an inspection conducted by the Department Staff on February 15, 2001. First, the Respondents allegedly did not ensure the proper operation of the Stage II vapor collection and control system in violation of 6 NYCRR §230.2(f). Second, the Respondents allegedly did not visually inspect the Stage II collection system on a daily basis and remove, as necessary, defective dispensers from service in violation of 6 NYCRR §230.2(g). Third, the Respondents allegedly did not maintain the air contamination source in a satisfactory manner and did not repair it as necessary in violation of 6 NYCRR §200.7.

The Respondents jointly filed an answer dated July 23, 2001. Generally, the Respondents either assert there is insufficient information in the complaint to form an opinion about the allegations asserted, or deny the allegations. The Respondents also assert five affirmative defenses. First, the Respondents contend that the Department lacks "personal jurisdiction" over Adil Bayat because Adil Bayat does not own or operate a business at 386 Lake Avenue, St. James, New York. Second, the Respondents assert that Adil Bayat is not a "person" within the meaning of ECL §19-0107(1) and 6 NYCRR §200.1(bi).

Third, the Respondents contend that Adil Bayat is not required to inspect, maintain or repair the Stage II vapor collection and control system. Further, Adil Bayat is not required to ensure the proper operation of the Stage II vapor collection and control system, or remove it from service if the collection system becomes defective. Fourth, the Respondents assert that the complaint does not state a cause of action against Adil Bayat. The Respondents' fifth affirmative defense states that the Department's complaint is "jurisdictionally defective" because the date on the complaint is illegible.

With a cover letter dated August 23, 2001, the Department moved, pursuant to 6 NYCRR §622.6(c) and §622.4(f), for an order directing the Respondents to clarify the affirmative defenses set forth in their July 23, 2001 answer. The Department's motion includes an affirmation by its counsel, Anthony A. London, a copy of the Department's July 5, 2001 notice of hearing and complaint, and a copy of the Respondent's July 23, 2001 answer. With a cover letter dated September 14, 2001, the Respondents' counsel, James Stanley Flis, filed an affirmation opposing the Department's motion. The Office of Hearings and Mediation Services received the Respondent's reply on September 26, 2001.

MOTION PROCEDURES

6 NYCRR §622.4(f) provides that

The department staff may move for clarification of affirmative defenses within 10 days of completion of service of the answer on the grounds that the affirmative defenses pled in the answer are vague or ambiguous and that staff is not thereby placed on notice of the facts or legal theory upon which respondent's defense is based.

In its motion, the Department alleges that each of the Respondents' affirmative defenses is vague and ambiguous. As a result, the Department contends that it is not placed on notice of the facts or legal theories underlying those defenses. In opposition, the Respondents argue that they do not have to provide all the facts necessary to prove their affirmative defenses before the hearing just as the Department is not obliged to provide all the necessary facts in the complaint to prove its case. According to the Respondents' counsel, the facts for each affirmative defense are clear on their face.

The Respondents' counsel is correct that all the facts necessary to prove the asserted affirmative defenses do not need to be provided in the answer. However, §622.4(c) requires an answer to include "a statement of facts which constitute the grounds of each affirmative defense asserted." As discussed below, the Respondents' answer is defective in this regard.

DISCUSSION AND RULING

First Affirmative Defense

As their first affirmative defense, the Respondents assert that the Department lacks "personal jurisdiction" over Adil Bayat because Adil Bayat does not own or operate a business at 386 Lake Avenue, St. James, New York.

To commence an enforcement action, the Department must obtain personal jurisdiction over a party by properly serving a notice of hearing and complaint [6 NYCRR §622.3(a)]. Respondent Adil Bayat raises no issue in the answer about service of the notice of hearing and complaint. Rather the answer asserts that Adil Bayat does not own or operate a business at 386 Lake Avenue, St. James, New York. A claim related to ownership of a business that may be regulated by the Department would generally relate more to subject matter jurisdiction rather than to personal jurisdiction. This affirmative defense is ambiguous. Therefore, the Department's motion with respect to the first affirmative defense is granted.

Second Affirmative Defense

The second affirmative defense is that Adil Bayat is not a "person" within the meaning of ECL §19-0107(1) and 6 NYCRR §200.1(bi).

Clarification of the second affirmative defense is necessary. The Respondents' second affirmative defense is a legal conclusion; the basis of which has not been stated. Such a statement constituting the grounds for this assertion is required by §622.4(c), however. Therefore, the Department's motion with respect to the second affirmative defense is granted.

Third Affirmative Defense

As the third affirmative defense, the Respondents assert that Adil Bayat is not required to inspect, maintain or repair the Stage II vapor collection and control system. The Respondents assert further that Adil Bayat is not required to ensure the proper operation of the Stage II vapor collection and control system, or remove it from service if the collection system becomes defective.

The third affirmative defense may be based on the Respondents' claim that Adil Bayat is not a "person" within the meaning of ECL §19-0107(1) and 6 NYCRR §200.1(bi). The Respondents, however, may have alternative reasons as the basis for this affirmative defense. As explained above, the Respondents are not required to provide all facts necessary to prove this affirmative defense. Nevertheless, the third affirmative defense, in its current form, does not provide a statement of the facts which constitute the grounds for the Respondents' claim as required by §622.4(c). Therefore, the Department's motion with respect to the third affirmative defense is granted.

Fourth Affirmative Defense

The Respondents assert that the complaint does not state a cause of action against Adil Bayat. Section 622.3(a)(1) requires the Department to include in its complaint a statement of the legal authority and jurisdiction under which the proceeding is to be held. Section 3013 of the CPLR is comparable to the regulations, and provides that

Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.

The requirements in §622.3(a)(1) concerning the necessary elements of a complaint are analogous to the requirements set forth in §622.4(c) with respect to pleading affirmative defenses. The complaint in this matter satisfies these requirements. The Department has articulated the applicable statutory and regulatory provisions, and provided detail as to the time and nature of the violations alleged. Respondents are, therefore, on notice as to the facts and legal authority surrounding the alleged violations. The Department's motion with respect to this affirmative defense is granted.

Fifth Affirmative Defense

The Respondents' fifth affirmative defense states that the Department's complaint is "jurisdictionally defective" because the date on the complaint is illegible. Whether a complaint is "jurisdictionally defective" if the date on it is illegible is an issue of law that the Respondents may develop in its closing statement at the end of the hearing. The Department's motion with respect to this affirmative defense is denied. The Department will have an opportunity to respond further in its closing statement or reply.

RESPONDENT'S MOTION TO DISMISS

As part of his affirmation, the Respondents' counsel requests that the charges in the complaint be dismissed with prejudice. For the following reasons, I deny this request without prejudice to renew.

The Commissioner, not the administrative law judge, is the final decision maker in this matter. Consequently, only the Commissioner may dismiss the charges. Based upon my review of the complaint and the answer, there appear to be substantial disputed issues of fact. If the parties are unable to resolve these disputes, then I am required to develop a complete record about them during an adjudicatory hearing so that the Commissioner may make an informed decision on the merits. The Respondents may renew their motion to dismiss at the conclusion of the adjudication.

CONCLUSION

The motion to clarify affirmative defenses is granted, as explained above. Respondents are directed to serve an amended Answer consistent with this ruling by November 5, 2001.

/s/
Daniel P. O'Connell
Administrative Law Judge
Office of Hearings and Mediation Services
NYS Department of Environmental Conservation
625 Broadway, 1st Floor
Albany, New York 12233-1550

Dated: October 5, 2001
Albany, New York

TO: Anthony A. London, Esq.
Division of Environmental Enforcement
NYS Department of Environmental Conservation
625 Broadway, 14th Floor
Albany, New York 12233-5500

James Stanley Flis, Esq.
Law Office
149 East Main Street, Suite 3
PO Box 2
East Islip, New York 11730

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