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Daggett Oil Co. - Ruling 3, March 31, 1997

Ruling 3 March 31, 1997


In the Matter of

Alleged Violations of Article 23 of
the Environmental Conservation Law of the State of New York and Parts 551 and 555 of Title 6 of
the Official Compilation of Codes and Regulations of the State of New York

- by -




DEC No. D9-B113-94-12


The Department staff commenced this administrative proceeding by service of a notice of hearing and motion for order without hearing upon Daggett Oil Company (Daggett), by certified mail, on December 15, 1994, upon Hogan Energy, Inc. (Hogan Energy) by personal service on January 20, 1995, upon William F. Hogan (Hogan) by personal service on January 20, 1995, and upon Leslie T. Grover (Grover), by certified mail on December 15, 1994. Administrative Law Judge Daniel P. O'Connell denied staff's motion for an order without hearing by ruling dated February 6, 1995. I denied respondent Hogan's motion to dismiss and granted staff's motion for leave to serve an amended complaint by ruling dated March 20, 1996. The answers of respondents Hogan, Hogan Energy and Daggett were received in the Office of Hearings and Mediation Services (OHMS) on April 1, 1996.

On April 24, 1996, I granted, via conference call, the parties' request to use interrogatories in lieu of depositions and directed that interrogatories be served by May 23, 1996 and that all parties answer within twenty days of receipt. After many months with little progress in the discovery process, I convened a conference call on February 11, 1997 to determine the status of these proceedings. While counsel for Daggett, Hogan Energy and Hogan, William Gunner, agreed that staff has complied with most of his clients' discovery demands, staff attorney, Joseph M. Kowalczyk maintained that none of the parties had provided sufficient response to staff's requests. Except for a short letter, respondent Grover has not submitted any responses to staff's discovery requests. The other parties provided limited responses to interrogatories and denied staff's requests to review well log records. During the February 11 conference call, staff agreed to provide Mr. Gunner with a list of Department witnesses and a requested statute. In addition, I set a schedule for staff to make its motion to compel discovery.

Motion to Compel

By notice of motion dated March 11, 1997, pursuant to 6 NYCRR 622.7(c), the Department staff moved for an order compelling the respondents to comply with staff's interrogatories and combined discovery demand and to preclude the respondents from using any documents and/or information demanded by staff that respondents have failed to produce. In support of its motion, which was received by the OHMS on March 14, 1997, staff submitted an attorney's affirmation by Joseph M. Kowalczyk dated March 13, 1997, an affidavit by John P. Hoffman, a DEC Region 8 mineral resources technician and accompanying exhibits. Although the respondents' reply was due on March 24, as of March 31, this office has not received any responding papers.

The staff's motion papers set forth the repeated attempts by staff to obtain the documents and responses from respondents over a lengthy period. In addition, Kowalczyk and Hoffman explain in their respective affidavits the relevance of the requested documents and information to these proceedings. The respondents did not move for a protective order demand as set forth in 6 NYCRR 622.7(c)(1). Nor have respondents made any effort to oppose the staff's motion to compel and are therefore in default on this motion.


Accordingly, I grant staff's motion. I find that respondent Grover has failed to respond to staff's discovery demands and by no later than April 14, 1997, he is to provide full and complete responses to staff's interrogatories and to provide the requested documents in staff's combined discovery demand in his possession, control or custody.

With respect to respondent Hogan, I find that he has failed to provide complete and responsive answers to staff's interrogatories numbered: 74, 84, 85, 86, 86, 88, 89, 90, 97, 98, 99, 100, 101, 102, 103 and 104. I direct respondent Hogan to provide same by no later than April 14, 1997 and that his responses include information relating to the time period 1963-1996 as required by the staff's interrogatories. In addition, by no later than April 14, 1997, respondent Hogan is to produce all business records requested by staff.

With respect to respondents Hogan Energy and Daggett, I find that these entities have failed to provide complete and responsive answers to staff's interrogatories numbered 15, 18, 19, 22(e), 27, 28, 38, 39, 41 and 44. I direct Hogan Energy and Daggett to provide full and complete responses to these interrogatories by no later than April 14, 1997. In addition, respondents are to produce all business records requested by staff by no later than April 14, 1997.

All responses directed above are to be served upon the Department staff by no later than April 14, 1997. In the event that respondents fail to comply with this ruling, such parties will be precluded from use of the material demanded at the hearing as provided in 6 NYCRR 622.7(c)(3). In addition, a failure to comply with this ruling allows the ALJ or the Commissioner to draw the inference that the material demanded is unfavorable to the noncomplying party's position. 6 NYCRR 622.7(c)(3).

Helene G. Goldberger
Administrative Law Judge

Dated: March 31, 1997
Albany, New York

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