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A.L. Blades & Sons, Inc - Hearing Report, February 3, 1994

Hearing Report, February 3, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter of

the Disputed Regulatory Program Fee of

A.L. Blades & Sons, Inc.
Webbs Crossing Road
P.O. Box 590
Hornell, NY 14843

Permit No. 809-3-30-0591

Invoice No. 34678

Billing Period Fiscal Year 1991

REPORT

- by -

____________/s/____________
Frank Montecalvo
Administrative Law Judge

February 3, 1994

PROCEEDINGS

Environmental Regulatory Program Fees for Mined Land Reclamation permits are assessed pursuant to Environmental Conservation Law ("ECL") Article 72 (Environmental Regulatory Program Fees) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 481 (Program Fees: In General).

A.L. Blades & Sons, Inc., Webbs Crossing Road, P.O. Box 590, Hornell, NY 14843 ("Permittee") is disputing the Regulatory Program Fee assessed by the Department of Environmental Conservation ("Department") for Billing Period Fiscal Year 1991 in connection with its Mined Land Reclamation permit. Permittee disputes the entire $400.00 currently assessed. The dispute was referred to the Department's Office of Hearings on January 11, 1994.

On January 28, 1994, a pre-hearing conference pursuant to 6 NYCRR 481.10 (f) took place via a long distance telephone conference call between Administrative Law Judge ("ALJ") Frank Montecalvo; Thomas J. McGuire, Esq., attorney for the Department's Regulatory Fee Determination Unit; and James F. McGee, Permittee's General Manager.

During the conference the relevant facts were reviewed. The parties had previously stipulated to a number of facts. Those are set forth verbatim at 1 through 15 under "Summary of Material Facts" below. The remaining paragraphs under "Summary of Material Facts" were agreed upon during the conference to clarify the stipulated facts.

Staff also agreed that it is not seeking to make Mr. McGee personally liable for any regulatory fee that may be owed herein, thus this Report is being styled only as a dispute between Permittee and Staff. Also, the parties agreed that if a regulatory fee is imposed, it will be prorated (pursuant to ECL 72-1005 (3)) as of the December 16, 1991 reclamation approval date.

It was agreed by all participants that there was no dispute as to the material facts in this case, but there was disagreement over whether the circumstances would justify not strictly applying the rules. The parties agreed that the Issue to be resolved is the one identified below.

There being no material facts in dispute, this matter is being referred to the Department's General Counsel for a declaratory ruling pursuant to 6 NYCRR 481.10 (f)(4). The instant Report summarizes the material facts and the nature of the dispute, and is intended to constitute a petition for a declaratory ruling.

SUMMARY OF MATERIAL FACTS

  1. Respondent A.L. Blades & Sons, Inc. is located at Webbs Road Crossing, (P.O. Box 590), Hornell, New York, 14843.
  2. Respondent James F. McGee is the general manager of A.L. Blades & Sons, Inc.
  3. Respondent McGee operated a certain mine in the Town of Avoca, Steuben County, New York, which mine was designated as a "minor project" affecting less than five acres of land.
  4. Respondent held a Mined Land Reclamation permit (#809-3-30-0591) for the above mine. Said mine is known as the "Wentworth Road Pit".
  5. The subject permit was obtained by Respondent while building New York State Department of Transportation project #D253269.
  6. The Department assessed a Mined Land Reclamation program fee in the amount of $400.00 for 1991 (invoice #34678, dated September 23, 1991), pursuant to Environmental Conservation Law ("ECL") 72-1003 which sets forth an annual Mined Land Reclamation program fee of $400.00 for "minor projects."
  7. Respondent submitted a Regulatory Fee Recalculation Request on October 31, 1991, pursuant to 6 NYCRR 481.9(c).
  8. Respondent alleges that the reclamation of the "Wentworth Road Pit" was completed by November 30, 1990 and the entire project was accepted by the N.Y.S. Department of Transportation on December 4, 1990.
  9. On December 3, 1991, the Department responded to Respondent's fee recalculation request denying a waiver of the $400.00 fee assessed. The Department notified the respondent that the respondent failed to notify the Department of any reclamation activity and consequently the Department had not inspected the site for proper reclamation.
  10. Pursuant to ECL 72-1005(3) all persons holding permits or approvals or subject to regulation are liable for annual fees until such time as reclamation has been completed and approved by the department.
  11. The Department inspected the property on December 16, 1991 and found that the mine was properly reclaimed.
  12. Respondents filed a mining termination notice for the "Wentworth Road Pit" on January 14, 1992.
  13. Pursuant to 6 NYCRR 422.4(d), a termination notice shall be filed 60 days prior to the scheduled temporary or permanent cessation of mining.
  14. Respondent disputes the 1991 Mined Land Reclamation program fee of $400.00 on the grounds that the site had been completely reclaimed by November 30, 1990 and the project was accepted by the N.Y.S. Department of Transportation on December 4, 1990. Furthermore, the fact that Respondent failed to file a timely termination notice should not result in the fee for the 1991 year.
  15. Respondent requests that the assessed fees for the subject mine be waived.
  16. Mined Land Reclamation Permit #809-3-30-0591 was issued to A. L. Blades & Sons, Inc. on June 14, 1990 bearing an expiration date of June 14, 1991.
  17. Invoice #34678, dated September 23, 1991, was sent to A. L. Blades & Sons, Inc.
  18. Regarding 3 above, Mr. McGee was operating the mine as the manager for A. L. Blades & Sons, Inc., and not in his individual capacity.
  19. The term "Respondent" as used in 4, 5, 7, 8, 9, 12, 14, and 15 above refers solely to A. L. Blades & Sons, Inc.
  20. Staff has no evidence contradicting Respondent's allegation that reclamation was completed November 30, 1990.
  21. DEC did not approve the reclamation until December 16, 1991.

ISSUE

As a matter of equity, should the fact that the project was performed for another state agency (Department of Transportation) warrant a waiver of the regulatory program fee?

ORDER OF DISPOSITION

This matter is hereby referred to the Department's general counsel on the issue identified above.

-APPENDIX-

SERVICE LIST for:
A.L. Blades & Sons, Inc. - Regulatory Fee Dispute
Invoice No. 34678 (Billing Period Fiscal Year 1991)

GENERAL COUNSEL:
Marc Gerstman, Esq.
Deputy Commissioner and General Counsel
Department of Environmental Conservation
50 Wolf Road
Albany, NY 12233-1017

REGULATORY FEE DETERMINATION UNIT STAFF:

Thomas J. McGuire, Esq. NYSDEC, Division of Legal Affairs
50 Wolf Rd.
Albany, NY 12233
Tel. 518-457-6695
Fax 518 457 3978

PERMITTEE A.L. Blades & Sons, Inc.
c/o:A.L. Blades & Sons, Inc.
Webbs Crossing Road
P.O. Box 590
Hornell, NY 14843
attn: James F. McGee, General Manager
Tel. 607-324-3636
Fax 607-324-0998

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