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Mudd's Vineyard Ltd. - Ruling 2, January 22, 1998

Ruling 2, January 22, 1998


In the Matter of Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law and Parts 325 and 326 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,




(Case No. D1-0001-9710)



Department Staff issued a complaint dated October 20, 1997, to the Respondents Mudd's Vineyard, Ltd., David Mudd, and Stephen Mudd. The complaint states that the Respondents, on or about July 14 and 15, 1995, allowed the use of two pesticides - - "Microflo Captan" and "Captan 4 Flowable" - - which at the time of their use did not have valid product registrations issued by the Department, in violation of ECL Sections 33-0701 and 33-1301(1)(a).

The Respondents submitted an answer dated November 25, 1997, coupled with a first demand for the production of documents. Department Staff objects to certain parts of the demand, and by papers dated December 17, 1997, Staff attorney Victor Gallo moved for a protective order. Respondents' counsel, Eric Bressler, filed an affirmation dated December 30, 1997, opposing the motion.


Pursuant to 6 NYCRR 622.7(c)(3), a party against whom discovery is demanded may make a motion to the assigned Administrative Law Judge for a protective order, in general conformance with CPLR Section 3103, to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.

Department Staff has moved for a protective order with regard to paragraphs 6, 7 and 10 of the Respondents' demand. These paragraphs demand the following documents:

6. All documents concerning the registration with the Department of any pesticide, the ingredient of which, in whole or in part, is Captan, including but not limited to applications, labels, and registrations.

7. All documents concerning the use, application, toxicity, and physical characteristics of Captan, in any of its formulations.

10. All documents concerning any notice of violation, enforcement proceeding, administrative determination, action or judgement by or involving the Department and a third party on a claim of violation of ECL Section 33-1301(1)(a) based upon use of an unregistered pesticide.

- - Paragraphs 6 and 7

Department Staff estimate that paragraphs 6 and 7 of the Respondents' discovery demand encompass documents relating to at least 70 different pesticide products now or formerly registered by the Department, and that producing these documents would cause the Department unreasonable expense and annoyance. Furthermore, Staff argues that even if the documents were produced, they would have no probative value with respect to the Respondents' liability in this action, and are therefore irrelevant.

According to the Respondents, the demands in paragraphs 6 and 7 are relevant to the issue of penalty. They argue that if there are many pesticide products whose active ingredient is Captan which were or are registered with the Department, that fact would militate against penalty imposition. Also, they argue, if the application, toxicity and physical characteristics of Captan indicate the absence of an environmental hazard when used as alleged by Mudd, this fact also militates against penalty imposition since the Department's primary statutory purpose is environmental protection. [See, ECL 1-101(1) and 3-0301(1).]

I agree with the Respondents that environmental harm is a relevant factor in relation to penalties that might be assessed in this matter, even if it is not necessary to establish the violations. In fact, where tangible public health and/or environmental damages are detected, significant payable penalties are warranted, according to the Department's Pesticide Enforcement Guidance Memorandum (EGM No. II.20, issued 1/20/87, as revised 3/93, page 3 of 22).

However, I also agree with Staff that paragraphs 6 and 7 of the demand are excessively broad, since they address Captan-containing products in addition to those named specifically in the complaint. Information about these other products is not sufficiently relevant to warrant discovery on the scale demanded by the Respondents; therefore, such discovery would present unreasonable annoyance and expense to the Department.

Imposing a reasonable limit on the demands in paragraphs 6 and 7, I hereby modify them to direct the production of all documents relating to any registration with the Department of "Microflo Captan" (EPA Reg. No. 476-1819-51036) and "Captan 4 Flowable" (EPA Reg. No. 476-1839-51036), including but not limited to applications, labels, and actual registration documents. (At any rate, these documents appear to be covered by paragraphs 4 and 5 of the demand.) Also, the Department shall produce all documents it has concerning the use, application, toxicity, and physical characteristics of Captan, but only as formulated in these two products.

I recall that at the pre-hearing conference in this matter, Staff indicated that Microflo Captan has never been registered with the Department, and that the registration for Captan 4 Flowable was canceled in 1991. Staff's response to the demand shall confirm in writing whether or during what periods either of these products was registered with the Department.

On the general issue of penalties, I note that $1,000 per incident is the minimum penalty prescribed in the Department's enforcement guidance memorandum for use of any unregistered general use pesticide (EGM, p.18). The apparent intent of the law, as enforced by the Department, is that each pesticide carry its own Department registration, so I would not find it relevant, to liability or relief, that other Captan-containing products are or have been registered if the ones named in this complaint were not registered at the time of their alleged use.

- - Paragraph 10

Department Staff contend that the request in paragraph 10 of the demand is overly broad and vague, and that providing the requested information would pose significant, unjustified, and unreasonable annoyance and expense. Also, Staff maintains that the requested information is irrelevant to the action at hand.

The Respondents contend that paragraph 10 is relevant to liability because the defense of selective prosecution has been raised in their answer and, if successful, the defense would bar the instant enforcement proceeding. The Respondents' fourth affirmative defense is that the Department has not enforced and is not enforcing the provisions of ECL Section 33-1301(1)(a) against users of allegedly unregistered pesticides, except Respondents, and that this proceeding was instituted and maintained against Respondents with malice and bad faith.

I hereby grant Department Staff's motion for a protective order with regard to the demand of paragraph 10. The Commissioner has previously ruled that an administrative enforcement hearing is not the proper forum to decide the constitutional issue of discriminatory or selective enforcement. [See, In the Matter of Alleged Violations of ECL Article 11 by the Town of Norfolk, Order dated October 31, 1985, citing Matter of 303 West 42nd Street v. Klein, 46 NY 2d 686, 693 n.5 (1979), which provides that a claim of discriminatory enforcement is properly brought only before a judicial tribunal, and not before an administrative board.] Also, claims of malicious prosecution are premature unless and until the Department's charges are dismissed.

While not mentioned by Department Staff, I also note that as pled in their answer, the Respondents' fourth affirmative defense is flawed because it does not contain a full statement of supporting facts. According to the Department's regulations, a respondent's answer must explicitly assert any affirmative defenses "together with a statement of the facts which constitute the grounds of each affirmative defense asserted" [6 NYCRR 622.4(c)]. Because no facts are alleged to support the claims of malice and bad faith, Department Staff would be entitled to have them dismissed from consideration.


Department Staff is granted a protective order with regard to the demand in paragraph 10. The demands in paragraphs 6 and 7 shall be considered modified as noted above, and Staff may limit its response accordingly. Consistent with 6 NYCRR 622.7(b), Department Staff shall complete its response to the discovery demand within 10 days of receipt of this ruling. After that, my office will arrange a conference call with counsel for both parties, so I can facilitate moving this case to hearing.

Edward Buhrmaster
Administrative Law Judge

January 22, 1998
Albany, New York

TO: Eric J. Bressler, Esq.
Wickham, Wickham & Bressler, P.C.
10315 Main Road
Mattituck, New York 11952

Victor J. Gallo, Esq.
NYS Department of Environmental Conservation
50 Wolf Road, Room 627
Albany, New York 12233-5500

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