Myers Property, LLC, Bottini Station Holdings, LLC, Mark Bottini, Anthony Bottini and Brian Bottini - Ruling of the CALJ, 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 -
MYERS PROPERTY, LLC., BOTTINI STATION
HOLDINGS, LLC., MARK BOTTINI, ANTHONY
BOTTINI, and BRIAN BOTTINI,
Respondents.
RULING OF THE CHIEF ADMINISTRATIVE
LAW JUDGE
DEC File No. 3-410632
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 Myers 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, insofar as it seeks to exclude statements of settlement negotiations contained in respondent Myers Property, LLC's March 21, 2011, answer, is granted in part. Department staff's motion to exclude is otherwise denied.
II. Respondent Myers Property, LLC's March 21, 2011, answer is redacted as follows:
A. Page 6, paragraph 43: All text following "("AST Site Owners")" through the end of the paragraph is struck;
B. Page 6, paragraph 44: All text following "("Discussion Period")" through the end of the paragraph is struck;
C. Page 7: Paragraph 46 is struck in its entirety;
D. Page 8, paragraph 50: All text following "discussions regarding resolution of the compliance issues" through the end of the paragraph is struck;
E. Page 9, paragraph 56: The second sentence beginning "The Department further" and ending "to be posted." is struck in its entirety;
F. Page 10: Paragraph 60 is struck in its entirety;
G. Pages 10-11: Paragraph 62 is struck in its entirety; and
H. Page 11, paragraph 65: 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 Myers Property, LLC's March 21, 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 Myers Property, LLC's March 21, 2011, answer, is denied.
V. Department staff's motion, insofar as it seeks to exclude statements of settlement negotiations contained in the March 21, 2011, answer jointly filed by respondents Bottini Station Holdings, LLC, Mark Bottini, Anthony Bottini, and Brian Bottini (Bottini respondents) is granted in part. Department staff's motion to exclude is otherwise denied.
VI. The Bottini respondents' March 21, 2011, answer is redacted as follows:
A. Page 6, paragraph 43: All text following "("AST Site Owners")" through the end of the paragraph is struck;
B. Pages 6-7, paragraph 44: All text following "("Discussion Period")" through the end of the paragraph is struck;
C. Page 7: Paragraph 46 is struck in its entirety;
D. Page 8, paragraph 50: All text following "discussions regarding resolution of the compliance issues" through the end of the paragraph is struck;
E. Page 9, paragraph 56: The second sentence beginning "The Department further" and ending "to be posted." is struck in its entirety;
F. Page 10: Paragraph 60 is struck in its entirety;
G. Page 11: Paragraph 62 is struck in its entirety; and
H. Page 11, paragraph 65: In the first sentence, the clause "as part of its" through "certain liability releases," is struck.
VII. Department staff's motion, insofar as it seeks to strike affirmative defenses pleaded in the Bottini respondents' joint answer dated March 21, 2011, 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.
VIII. Department staff's motion, insofar as it seeks clarification of affirmative defenses pleaded in the Bottini respondents' March 21, 2011, answer, is denied.
/s/
James T. McClymonds
Chief Administrative Law Judge
Dated: March 14, 2012
Albany, New York
