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Route 52 Property, LLC, Bottini Station Holdings, LLC, Mark Bottini, Anthony Bottini and Brian Bottini - Ruling of the Chief ALJ, March 14, 2012

Ruling of the CALJ, March 14, 2012

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Articles 17
and 71 of the Environmental Conservation Law ("ECL"),
Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York ("6 NYCRR"),
and Article 12 of the Navigation Law,

- by -

ROUTE 52 PROPERTY, LLC., BOTTINI STATION
HOLDINGS, LLC., MARK BOTTINI, ANTHONY
BOTTINI, and BRIAN BOTTINI,

Respondents.

RULING OF THE CHIEF ADMINISTRATIVE
LAW JUDGE

DEC File No. 3-410713

March 14, 2012

Appearances of Counsel:

-- Steven C. Russo, Deputy Commissioner and General Counsel (Scott W. Caruso of counsel), for staff of the Department of Environmental Conservation

-- Daniels & Porco, LLP (S. David Devaprasad and Heather N. Justice of counsel), for respondent Route 52 Property, LLC

-- Wichler and Gobetz, P.C. (Kenneth Gobetz of counsel), for respondents Bottini Station Holdings, LLC, Mark Bottini, Anthony Bottini, and Brian Bottini

RULING OF THE CHIEF ADMINISTRATIVE LAW JUDGE ON MOTIONS

In according with the decision of the Chief Administrative Law Judge issued in Matter of Route 52 Property, LLC, et al. (and seven other proceedings) dated March 14, 2012, it is hereby ORDERED that:

I. Department staff's motion to exclude respondents' joint affirmation in opposition dated March 28, 2011, insofar as it seeks redaction of all settlement negotiations from respondents' affirmation, is granted. Department staff's motion to exclude is otherwise denied.

II. Respondents' joint affirmation in opposition dated March 28, 2011, is redacted as follows:

A. Page 4, paragraph 9: All text following "("AST Site Owners")" through the end of the paragraph is struck;
B. Page 4, paragraph 10: All text following "("Discussion Period")" through the end of the paragraph is struck;
C. Page 5: Paragraph 12 is struck in its entirety;
D. Pages 5-6, paragraph 16: All text following "discussions regarding resolution of the compliance issues" through the end of the paragraph is struck;
E. Page 7, paragraph 22: The second sentence beginning "The Department further" and ending "to be posted." is struck in its entirety;
F. Page 8: Paragraph 26 is struck in its entirety;
G. Pages 8-9: Paragraph 28 is struck in its entirety; and
H. Page 9, paragraph 31: In the first sentence, the clause "as part of its" through "certain liability releases," is struck.

III. Department staff's motion, insofar as it seeks to strike affirmative defenses pleaded in respondent Route 52 Property, LLC's March 1, 2011, answer, is granted in part and respondent's first, second, fourth, fifth, sixth, seventh, eighth, tenth, and eleventh affirmative defenses are dismissed. Department staff's motion to strike affirmative defenses is otherwise denied.

IV. Department staff's motion, insofar as it seeks clarification of affirmative defenses pleaded in respondent Route 52 Property, LLC's March 1, 2011, answer, is denied.

V. Department staff's motion, insofar as it seeks to strike affirmative defenses pleaded in the joint answer dated March 1, 2011, filed by respondents Bottini Station Holdings, LLC, Mark Bottini, Anthony Bottini, and Brian Bottini (Bottini respondents), is granted in part and respondents' first, second, fourth, fifth, sixth, seventh, eighth, tenth, and eleventh affirmative defenses are dismissed. Department staff's motion to strike affirmative defenses is otherwise denied.

VI. Department staff's motion, insofar as it seeks clarification of affirmative defenses pleaded in the Bottini respondents' March 1, 2011, answer, is denied.

/s/
James T. McClymonds
Chief Administrative Law Judge

Dated: March 14, 2012
Albany, New York

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