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Bath Petroleum Storage, Inc. and EIL Petroleum, Inc. - Interim Decision, June 17, 2003

Interim Decision, June 17, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1011

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


INTERIM DECISION

JUNE 17, 2003

INTERIM DECISION OF THE COMMISSIONER

Bath Petroleum Storage, Inc. ("BPSI") has applied to the New York State Department of Environmental Conservation (the "Department" or "DEC") for a modification permit pursuant to Article 23, Title 13 of the Environmental Conservation Law ("ECL") for the proposed expansion of its existing underground storage caverns in Bath, New York (the "Facility"). E.I.L. Petroleum, Inc. ("EIL") is a corporation engaged in the international and domestic bulk purchase and sale of liquefied petroleum gases. BPSI, a wholly-owned subsidiary of EIL, operates the facility. BPSI and EIL are referred to hereafter collectively as the "Applicants."

On January 11, 2002, Department Staff filed a motion pursuant to the provisions of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NCYRR") Sections 622.6(c), 622.10(e), and 624.8(e), seeking consolidation of (1) the Article 23 permit proceeding; (2) proceedings with respect to BPSI's application to renew and transfer a State Pollutant Discharge Elimination System ("SPDES") permit; and (3) Department Staff's pending enforcement action against BPSI and EIL. The Applicants opposed Department Staff's motion.

On July 26, 2002, Administrative Law Judge Maria E. Villa issued a ruling (the "Ruling") on the motion, granting Department Staff's motion in part, and denying it in part. The Ruling consolidated the enforcement proceeding and the Article 23 permit proceeding. Both Department Staff and the Applicants appeal the Ruling as of right, pursuant to 6 NYCRR Section 624.8(d)(2). Department Staff also sought leave to file an expedited appeal pursuant to Section 624.8(d)(2)(v), but has since withdrawn that application. Accordingly, Department Staff's application for leave to appeal will not be considered.

The Applicants' appeal is dismissed. The Applicants base their appeal upon 6 NYCRR Section 624.8(d)(2)(i), which provides that an expedited appeal is available as of right during the course of a hearing from an ALJ ruling including or excluding an issue for adjudication. The Applicants contend that the Ruling improperly identified record of compliance as an issue for adjudication. In fact, the issues conference has yet to take place, and, accordingly, no determination as to the issues for adjudication has been made. The Ruling merely addressed Staff's motion for consolidation, and did not purport to be an issues ruling.

Although there is language in the Ruling stating that the Applicants' record of compliance could be considered in this consolidated proceeding, such language should not be read to hold that Applicants' record of compliance is an adjudicable issue. The language is fairly read to state the proposition that the violations alleged in the enforcement action, and considered on cross-motions for summary judgment, both of which were denied, could be appropriately considered in the permit proceeding, thereby justifying consolidation of the two proceedings. Thus, the Applicants have no appeal as of right on the ground that the ALJ included an issue for adjudication.

To the extent that Applicants base their appeal on that portion of the Ruling granting Department Staff's motion for consolidation in part, and determining that the causes of action in the enforcement matter may be heard in the context of the Article 23 permit hearing, such an appeal is not available as of right. A ruling on a consolidation motion is not one of the enumerated rulings for which an expedited appeal lies as of right. See 6 NYCRR Section 624.8(d)(2)(i) - (iv). Such a ruling is only appealable on an expedited basis by leave of the Commissioner, pursuant to Section 624.8(d)(2)(v), which provides:

by seeking leave to file an expedited appeal, any other ruling of the ALJ may be appealed on an expedited basis where it is demonstrated that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. In all such cases, the commissioner's determination to entertain the appeal is discretionary.

Applicants have not moved for leave to appeal from the consolidation motion, nor have they made the requisite showing. Thus, the Applicants' appeal is dismissed, without prejudice to an application pursuant to 6 NYCRR Section 624.8(d)(2)(v).

With respect to Department Staff's appeal as of right, Department Staff argues that the Ruling improperly joined an issue for adjudication with respect to the Applicants' record of compliance. Department Staff contends that any such ruling is premature, since no issues conference has yet been held, but does not concede that record of compliance is not a proper issue for adjudication. For the reasons stated above with respect to the Applicants' appeal as of right, Department Staff's appeal is dismissed.

Finally, the Applicants moved to strike Department Staff's reply to Applicants' appeal. Because the Applicants' appeal is dismissed, the motion to strike is denied as academic.

This matter is remanded to the ALJ for further proceedings consistent with this Interim Decision, and for the scheduling of a prehearing conference as provided for in the Ruling.

For the New York State Department
of Environmental Conservation

/s/
By: Erin M. Crotty, Commissioner

TO: Richard A. Sherman, Esq.
Assistant Counsel
Division of Environmental Enforcement, 14th Floor
NYS Department of Environmental Conservation
625 Broadway
Albany, New York 12233-5500

John Privitera, Esq.
William S. Hurst, Esq.
McNamee, Lochner, Titus & Williams, P.C.
75 State Street
P.O. Box 459
Albany, New York 12201-0459

Lisa Perla Schwartz, Esq.
New York State Department of Environmental Conservation
Region 8
6274 East Avon-Lima Road
Avon, New York 14414

Arlene J. Lotters, Esq.
Mineral Resources Program Attorney
Division of Legal Affairs
New York State Department of Environmental Conservation
625 Broadway, Fourteenth Floor
Albany, New York 12233-1500

Jerry William Boykin, Esq.
W. Michael Holm, Esq.
Womble, Carlyle, Sandridge & Rice
8065 Leesburg Pike, Fourth Floor
Tysons Corner, Virginia 22182-2738

Richard Brescia
New York Propane Gas Association
New York Capitol Consultants
120 Washington Avenue
Albany, New York 12210

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