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Trahan Petroleum, Inc. - Ruling 4, April 22, 1999

Ruling 4, April 22, 1999


In the Matter of Alleged
Violations of the Environmental
Conservation Law ("ECL") by


Case No. 92-12;


April 22, 1999

On September 2, 1998, I made a ruling regarding discovery in the above hearing and regarding the Department Staff's motion to dismiss certain affirmative defenses. Some of the same issues were then raised again by the Respondent, in the form of interrogatories, to which the Department Staff objected.

Any additional discovery in this matter is to be carried out by the parties in conformance with the rulings which Administrative Law Judge Edward Buhrmaster and I have made, including the present ruling.

Two earlier documents which relate to the present ruling are the Respondent's June 10, 1998 notice to produce ("Notice to Produce") and my September 2, 1998 ruling on motions to dismiss affirmative defenses and for a protective order ("September 1998 Ruling"). The Respondent's first written interrogatories are dated November 12, 1998 and the Department Staff's response is dated December 3, 1998.

The Department Staff did not object to paragraphs 1, 9, 11, 12, 13, 14, and 19 of the interrogatories, but did object to the other fourteen paragraphs. The Respondent did not reply to these objections.

Rulings on objections to the Respondent's first written interrogatories

Paragraphs 2 through 8 of the interrogatories request information that relates only to the fourteenth affirmative defense, which has already been dismissed (September 1998 ruling, page 3), and information that had been requested in paragraph 9 of the notice to produce, for which the Department Staff's motion for a protective order has already been granted (September 1998 ruling, page 4). In essence, these objections have already been decided. The objections to paragraphs 2 through 8 of the interrogatories are sustained.

Paragraph 10 of the interrogatories requests extensive information regarding communications between the Department Staff and agents of the Respondent. In addition to other objections, the Department Staff cites Reynolds v. South Buffalo Railway Company (196 N.Y.S. 2d 933) in support of the contention that this information is not properly the subject of an interrogatory since it asks about contacts between DEC and agents, servants, or employees of the Respondent, and thus is information which should be known to the Respondent. The objection to paragraph 10 of the interrogatories is sustained.

Paragraphs 15 and 18 of the interrogatories request information related to Jensen et al. v. Trahan Petroleum, an action in U.S. District Court, Southern District of New York. Paragraph 15 requests details of all contacts between DEC staff and agents of the parties or any interested third parties. Paragraph 18 requests again a subset of the information sought in paragraph 15. The Department Staff objects to these paragraphs as overly broad and as relating only to the 15th affirmative defense, which has been dismissed. (The 15th affirmative defense alleged that the Respondent is being prosecuted at the behest of private parties with an interest in the Respondent's wells.) The Department Staff notes that the current interrogatories are similar in scope to paragraph 13 of the notice to produce, which was dismissed without prejudice to a new, more specific discovery request.

The context of the September 1998 ruling about paragraph 13 of the notice to produce was that the affirmative defense to which the information related had been dismissed, but that the ruling was not intended to preclude consideration of facts which were otherwise relevant to other questions including witness credibility (see p. 2 and page 5 of the September 1998 ruling). The question posed in the interrogatories is slightly more specific in that it identifies the name of the federal court case, but it remains overly broad and still appears to be seeking information related to the 15th affirmative defense. The Respondent has shown no good faith basis for posing these questions that relates to credibility of any Department witness, denial of the complaint's allegations, or other relevant questions. The Department Staff's objections to paragraphs 15 and 18 of the interrogatories are sustained.

Paragraph 17 of the interrogatories asks about "all contacts with other DEC personnel wherein this case or the Jensen case were discussed, referred to or affected." The Department Staff objects to this question on the basis of Civil Practice Law and Rules ("CPLR") §3101(b), (c) and (d)(2) [privileged matter; attorney's work product; material prepared for litigation]. In my view, paragraph 17 of the interrogatories is also overly broad and also partly irrelevant, as discussed in the preceding section regarding the other interrogatories about the Jensen matter. The objection to paragraph 17 of the interrogatories is sustained.

Paragraph 16 of the interrogatories inquires about the manner in which internal standards were developed for "sufficient good cause" and other listed terms. The Department Staff objected to this paragraph on the basis of CPLR §3101(b) or 3101 (c) [privileged matter; attorney's work product]. The objection to paragraph 16 of the interrogatories is sustained.

Paragraph 20 of the interrogatories asks "the manner in which, and what, was rendered 'unfit for human or animal use or consumption'" by discharges for which a violation of 6 NYCRR 556.5(a) is alleged. The Department Staff objects to this paragraph as requesting material prepared for litigation. The objection is sustained.

With regard to paragraph 20 of the interrogatories, I also note that the complaint, at paragraph 5 which concerns alleged violations of 6 NYCRR 556.5(a), alleges that "brine has been discharged to the ground causing the surrounding vegetation to die and rendering the land unfit for human or animal consumption or usage at" the wells listed in that paragraph. The interrogatories appear to be revisiting the Respondent's motion for a more definite statement of the complaint, which I denied in a ruling dated May 7, 1998. Administrative Law Judge Edward Buhrmaster had denied a similar motion on January 22, 1993 and had reiterated his ruling on March 1, 1993.

Paragraph 21 of the interrogatories, the concluding paragraph, states, "With reference to all of the above, attach copies of telephone logs or appointment calendars, diary excerpts, memoranda, notes, correspondence or any other written or electronically stored data or references relating to or affecting the conduct of this case or any related cases." The Department Staff objects to this question as overly broad, not relevant, and not reasonably calculated to lead to the discovery of admissible evidence. The Department Staff further objects that regarding this case, the material is protected by CPLR §§ 3101(b) and (d)(2), is not material and necessary to the defense of this proceeding, or has previously been provided to Respondent. The objection to paragraph 21 of the interrogatories is sustained.

Susan J. DuBois
Administrative Law Judge

Albany, New York
April 22, 1999

TO: Maureen O. Brady, Esq.
David Stever, Esq.
John H. Heyer, Esq.

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