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Bath Petroleum Storage, Inc. and EIL Petroleum, Inc. - Decision & Order, October 29, 2003

Decision & Order, October 29, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter of the Alleged Violation(s) of the New York State Environmental
Conservation Law (ECL) Articles 3, 17 and 23, Title 6 of the Official Compilation of
Codes, Rules, and Regulations of the State of New York (NYCRR), and Permits Issued
Pursuant to Environmental Conservation Law Article 17, Title 8 and Article 23, Title
13; and the Application to Renew, Modify, and Transfer SPDES Permit NY 000-4279; and
the Application for an ECL Article 23 Modification Permit;

- by -

BATH PETROLEUM STORAGE, INC.,

and

E.I.L. PETROLEUM, INC.


DEC Case No: R8-1088-97-01
DEC Project No. 8-4624-00008
ECL Article 23-1301 Permit Hearing


DECISION AND ORDER

OCTOBER 29, 2003

DECISION AND ORDER OF THE COMMISSIONER

Bath Petroleum Storage Inc. and E.I.L. Petroleum, Inc. ("Applicants") move, pursuant to 6 NYCRR 624.8(d)(2)(v), for leave to file expedited appeals from the July 26, 2002 ruling and the September 11, 2003 ruling of Administrative Law Judge ("ALJ") Maria E. Villa. For the reasons that follow, Applicants' motion is denied.

In January 2002, staff of the Department of Environmental Conservation ("Staff") moved to consolidate (1) Applicants' ECL article 23 permit proceeding, (2) Bath Petroleum's proceeding concerning its application to renew and transfer a State Pollutant Discharge Elimination System ("SPDES") permit, and (3) Staff's pending enforcement proceeding against Applicants. In a ruling dated and served by ordinary mail on July 26, 2002, the ALJ granted Staff's motion in part by consolidating the Article 23 permit proceeding with the pending enforcement proceedings (see Matter of Bath Petroleum Storage, Inc., Ruling of the ALJ on Motion to Consolidate, July 26, 2002).

Applicants appealed as of right from the July 2002 ruling. By interim decision served by ordinary mail on June 17, 2003, the Commissioner dismissed Applicants' appeal as of right on the ground that the ruling appealed from was not one of the enumerated rulings for which an expedited appeal lies as of right (see Matter of Bath Petroleum Storage, Inc., Interim Decision of the Commissioner, June 17, 2003, at 1-2). In dismissing Applicants' appeal, the Commissioner did not reach the merits of the appeal. The Commissioner indicated that the appropriate vehicle for obtaining expedited review of the merits of the July 2002 ruling was pursuant to a motion for leave to appeal (see id. at 2).

On August 19, 2003, Applicants filed a motion with the ALJ seeking severance of the enforcement and permit proceedings joined in the July 2002 ruling. In a ruling dated and served by ordinary mail on September 11, 2003, the ALJ denied Applicants' motion, directed Staff to file an amended complaint in the enforcement proceeding, and established a schedule for the proceedings (see Matter of Bath Petroleum Storage, Inc., ALJ Ruling on Motion for Severance, Sept. 11, 2003). Deeming Applicants' motion to be in the nature of reargument of the July 2002 ruling, the ALJ held that Applicants failed to establish any law or facts misapprehended in the July 2002 ruling, or any evidence that would entitle Applicants to the relief sought (see id. at 3). On September 17, 2003, Applicants filed the present motion seeking leave to file expedited appeals from both the July 2002 and the September 2003 rulings of the ALJ.

Insofar as Applicants seek leave to appeal from the ALJ's July 2002 ruling granting Staff's motion to consolidate proceedings, there is no view of the proceedings by which the motion may be deemed timely. Department regulations provide that a motion for leave to appeal must be filed with the Commissioner in writing within five days of the disputed ruling (see 6 NYCRR 624.6[e][1]; see also 6 NYCRR 622.6[e][1]). An additional five days is allowed where notification of the challenged ruling is by ordinary mail (see 6 NYCRR 624.6[b][2][i]; see also 6 NYCRR 622.6[b][2][i]). Thus, in this case, Applicants had ten days after the July 2002 ruling was mailed to file their motion for leave to appeal with the Commissioner.

Applicants' September 17, 2003, motion for leave to appeal was filed well beyond ten days after issuance of the July 2002 ruling. Even assuming without deciding that the dismissal of Applicants' appeal as of right from the July 2002 ruling commenced a new ten-day period within which a motion for leave to appeal might be filed, that appeal was dismissed by Commissioner's order mailed on June 17, 2003. Thus, Applicants' present motion is untimely because it was filed well beyond ten days after June 17, 2003.

Finally, even assuming without deciding that Applicants' August 19, 2003 motion to sever somehow tolled the ten-day period for seeking leave to appeal from the July 2002 ruling, the motion to sever was also filed more than ten days after the July 2002 ruling and beyond ten days after Applicants' appeal as of right was dismissed by the Commissioner. Thus, under any view of the proceedings, Applicants' motion, insofar as it seeks leave to appeal from the July 2002 ruling, is untimely and, thus, should be denied on that ground.

Applicants' motion, insofar as it seeks leave to appeal from the September 2003 ruling, however, is timely. Applicants' September 17, 2003, motion for leave to appeal was filed within ten days after the September 11, 2003 ALJ ruling was mailed. However, for the reasons that follow, the remainder of Applicants' motion is denied.

A motion for leave to file an expedited appeal must demonstrate that the failure to decide such an appeal (1) would be unduly prejudicial to one of the parties, or (2) would result in significant inefficiency in the hearing process (see 6 NYCRR 624.8[d][2][v]). The party filing the motion has the burden of making the showing of "undue prejudice" or "significant inefficiency" (see 6 NYCRR 624.8[d][3]; 624.9[b][4]). The Commissioner's determination to entertain the appeal is discretionary (see 6 NYCRR 624.8[d][2][v]).

Applicants have failed to make the requisite demonstration that "undue prejudice" or "significant inefficiency" will occur if an expedited appeal from the September 2003 ruling is not entertained at this time. The arguments Applicants present in their motion papers challenge the July 2002 ruling. They make no persuasive argument that failure to grant expedited review of the narrow issue involved in the September 2003 ruling -- the ALJ's determination not to reconsider her July 2002 ruling -- will lead to undue prejudice or significant inefficiency. Accordingly, insofar as Applicants seek leave to appeal from the September 2003 ruling, their motion is denied.

The denial of Applicants' motion for leave to file an expedited appeal, on the grounds of untimeliness and Applicants' failure to demonstrate undue prejudice or significant inefficiency, is not a ruling on the merits of Applicants' appeal. Applicants remain free to raise before the Commissioner the issues raised in their motion papers at the appropriate time, that is, in an appeal as of right after an issues ruling, assuming the contested issues are found to be adjudicable, or in their final brief after the close of the adjudicatory hearing, if one is held (see 6 NYCRR 624.8[d][1], [2]; see also 6 NYCRR 622.10[d][1], [2]).

Accordingly, it is hereby ordered that Applicants' motion for leave to file an expedited appeal from the July 26, 2002 ruling and the September 11, 2003 ruling of ALJ Villa is denied.

For the New York State Department
of Environmental Conservation


/s/
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
October 29, 2003

To: Bath Petroleum Service List (VIA CERTIFIED MAIL)

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