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Carlson Associates/Henry Carlson - Order, September 1, 1993

Order, September 1, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Part 421 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of
the State of New York and Environmental Conservation Law Article 23, Title 27

- by -

CARLSON ASSOCIATES and HENRY B. CARLSON,

Respondents

ORDER

DEC File Nos.

1-3639 and 1-4025

WHEREAS:

  1. Pursuant to a Notice of Motion for Summary Order issued on August 28, 1991, an administrative enforcement hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ") on February 18, 1992 at the Department's Region 1 Office located in Stony Brook, New York. The Department Staff appeared by John Byrne, Esq., Assistant Regional Attorney, Region 1. The Respondent appeared by Eugene L. Wishod, Esq., Joel M. Markowitz, Esq. and Frederick Eisenbud, Esq., of Cahn, Wishod, Wishod and Lamb, Melville, New York.
  2. Upon review of ALJ DuBois' Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations, except as noted below.
  3. The Respondents' December 20, 1991 appeal of ALJ DuBois' ruling concerning the scope of the hearing is denied. Any delay in processing the Respondents' permit application for the site is irrelevant to this action and was properly excluded from the hearing record since Respondents had not even submitted an application until the period of the alleged violations was almost over. ALJ DuBois also properly excluded evidence concerning the content of settlement discussions. The public policy concerns which favor excluding such evidence in order to encourage frank discussions outweigh any relevance it might have (see In the Matter of Lopa et. al., Interim Decision of the Commissioner, July 10, 1991).
  4. As concluded in the ALJ's report, the evidence demonstrates that the Respondents operated the mine essentially continuously during the period of the alleged violations. The ALJ erred, however, in concluding that no violations occurred in the time period from January 24, 1990 to March 3, 1990. She so concluded because the date on which the jurisdictional threshold for requiring a permit (1000 tons in twelve consecutive months) was not established to be within this time period. I find that so long as the jurisdictional amount is mined, any day of operation without a permit within the twelve month period, whether or not it occurred before the jurisdictional amount was reached, would constitute a violation of ECL Article 23. The record establishes that mining in the twelve months following January 24, 1990 exceeded the threshold and therefore any day in which the Respondents operated between January 24, 1990 and March 3, 1990 also constitute violations.
  5. In determining the appropriate relief in this case, I have considered the factors discussed in the Hearing Report.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. Respondents are found to be in violation of Environmental Conservation Law Section 23-2711(1) and Section 421.1 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York on all 250 days charged in the complaint.
  2. Respondents are jointly and severally assessed a civil penalty of $125,500 (ONE HUNDRED AND TWENTY-FIVE THOUSAND AND FIVE HUNDRED DOLLARS). This penalty shall be due and payable sixty (60) days after the service of a conformed copy of this Order on Respondents.
  3. Respondents are to cease and desist all mining at their mine located at 140 Old Northport Road, Kings Park, New York.
  4. Respondents are to submit to the Department an approvable reclamation plan for the Site, which plan is to be submitted within thirty (30) days after Respondents' receipt of this Order.
  5. Respondents are to reclaim the Site within sixty (60) days of their receipt of the Department's approval of the reclamation plans.
  6. Respondents are to submit a reclamation bond in the amount of ONE HUNDRED AND SEVENTY-FIVE THOUSAND DOLLARS ($175,000) to the Department within sixty (60) days after Respondents' receipt of this Order.
  7. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 1 Director, NYS Department of Environmental Conservation Region 1, Building 40, SUNY Campus, Stony Brook, New York 11790-2356.
  8. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: Albany New York
September 1, 1993

To: Carlson Associates
Post Office Box 345
Kings Park, New York 11754

Henry B. Carlson
140 Old Northport Road
Kings Park, New York 11754

Eugene L. Wishod, Esq.
Cahn, Wishod, Wishod & Lamb
534 Broadhollow Road
C.S. 9034
Melville, New York 11747-9034

John F. Byrne, Esq.
NYS Department of Environmental
Conservation
200 White Plains Road, 5th Floor
Tarrytown, New York 10591-5805

Lori J. Riley, Esq.
NYS Department of Environmental
Conservation, Region 1
Building 40, SUNY Campus
Stony Brook, New York 11790-2356

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Alleged Violations of Part 421 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York and of
Environmental Conservation Law Article 23 Title 27 (Mined Land Reclamation)

- by -

CARLSON ASSOCIATES

and

HENRY B. CARLSON

RESPONDENTS

Case Nos. 1-3639 and 1-4025

HEARING REPORT

by

______________/s/_____________
Susan J. DuBois
Administrative Law Judge

Proceedings

On August 28, 1991, the New York State Department of Environmental Conservation (the "Department") moved for a Summary Order against Carlson Associates and Henry B. Carlson (the "Respondents"), of P.O. Box 345, Kings Park, New York 11754 and 140 Old Northport Road, Kings Park, New York 11754, respectively. This Motion was made pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 622.10. The Motion alleged that the Respondents had violated Environmental Conservation Law ("ECL") Section 23-2711 and 6 NYCRR Section 421.1 by mining more than 1,000 tons of minerals within twelve successive calendar months without first having obtained a permit from the Department for such mining. The mining allegedly took place at a Site located on Old Northport Road, Kings Park, in the Town of Smithtown, Suffolk County.

On September 25, 1991, the Department moved to amend the August 28, 1991 Motion for Summary Order to include an affidavit of a Town of Smithtown building inspector. On October 9, 1991, I denied the motion to amend the Motion for Summary Order. The Respondents submitted two affidavits in opposition to the Motion for Summary Order, dated October 25 and October 28, 1991.

In a ruling dated November 29, 1991, I denied the Motion for Summary Order since questions of fact existed regarding the amount of material mined within the time period of the alleged violation and the number of days on which mining had occurred. Pursuant to 6 NYCRR Part 622, the Motion for Summary Order and the Respondents' answering papers were deemed to be the Complaint and the Answer and a hearing was scheduled. The hearing was limited to two issues: (1) the amount of minerals mined by the Respondents at the Site during the time from January 24, 1990 to February 1, 1991 or any shorter time within that time period; and (2) the number of days on which any violation may have continued. The November 29, 1991 ruling also stated a number of facts which were not in dispute and which did not need to be proved at the hearing (see below).

The Respondents appealed the portion of the November 29, 1991 ruling which identified the issues for the hearing and requested that the Commissioner direct that the hearing also include evidence regarding allegations of the Respondents' need to continue mining in order to preserve their non-conforming use under Town zoning and allegations of delays in issuance of a mining permit to the Respondents. On January 10, 1992, Robert H. Feller, Assistant Commissioner for Hearings, notified the parties that Commissioner Thomas C. Jorling had declined to consider the appeal on an interlocutory basis and that the ruling could be appealed in the final briefs. The appeal is discussed further below.

The hearing took place on February 18, 1992 before Susan J. DuBois, Administrative Law Judge, at the Department's Region 1 Office, Stony Brook, New York. The Department was represented by John F. Byrne, Esq., Assistant Regional Attorney, Region 1. The Respondents were represented by Eugene L. Wishod, Esq., Joel M. Markowitz, Esq. and Frederick Eisenbud, Esq., of the firm of Cahn, Wishod, Wishod and Lamb, Melville, New York.

The Department called as its witness Robert Galli, Mined Land Reclamation Specialist, Region 1. The Respondents called as their witness Sylvester A. Celebrini, Vice President of Lockwood, Kessler and Bartlett Engineers.

Following extensions of the deadline for submission of briefs, which extensions were requested by both the Department Staff and the Respondents, the briefs were submitted on June 15, 1992. Reply briefs were submitted on August 14 by the Department and August 18 by the Respondents and the hearing record closed on August 18, 1992.

The Charges

The Department alleged that the Respondents had mined sand and gravel in violation of ECL Section 23-2711 and 6 NYCRR Section 421.1. The Department alleged that the Respondents had mined over 1,000 tons of minerals within a twelve calendar month period without having first obtained a permit from the Department. The mining allegedly occurred between January 24, 1990 and February 1, 1991.

Relief Sought

The Department sought an order requiring the Respondents to cease all mining activity at the facility, to submit an approvable reclamation plan for the facility within 30 days of an order by the Commissioner, to reclaim the facility within 60 days of receipt of the Department's approval of the reclamation plan, to submit a reclamation bond in the amount of $175,000, and to pay an administrative penalty of $250,000. In its closing statement at the end of the hearing, the Department proposed a penalty of $164,000, based on a second calculation of the penalty.

The Answer

The Respondents' two affidavits (deemed to be the Answer) did not deny that the Respondents had mined over 1,000 tons of minerals within a twelve calendar month period as alleged by the Department, but instead stated that the Department had failed to prove how much of the excavation had been done after January 24, 1990. The Respondents also alleged that they needed to continue mining in order to preserve the mine's status under Town zoning, that the Department and the Town had delayed the Respondents' receipt of a mining permit, and that the Order on Consent which had been proposed by the Department Staff was unreasonable.

Respondents' Appeal

On December 20, 1991, the Respondents appealed the portion of the November 29, 1991 ruling which identified the issues for adjudication. The Respondents sought to include within the scope of the hearing the facts and circumstances surrounding delays on the part of the Department or "its designated lead agent" (the Town of Smithtown) in processing the Respondents application for approvals for the mine, the Respondents' alleged need to continue mining to preserve a legal non-conforming use, and the Department's willingness to permit a continuation of mining by Respondents during the period of consideration of the mining permit application.

Undisputed Facts

As stated in the November 29, 1992 ruling, the following facts were not in dispute:

  1. Respondents Henry B. Carlson and Carlson Associates are the operators of the mine located at the Site in question (140 Old Northport Road, Kings Park, New York).
  2. Respondent Henry B. Carlson is the general partner of Carlson Associates.
  3. Carlson Associates, whose mailing address is P.O. Box 345, Kings Park, New York, 11754, is a partnership and owns the Site.
  4. No permit has been issued by the Department of Environmental Conservation to the Respondents, nor to anyone, for mining at the site.
  5. The mine is a sand and gravel mine which has been operating without interruption since before January 24, 1990 to at least the date of Mr. Carlson's affidavit (October 25, 1991).
  6. As of February 1, 1991, the volume of the excavation at the Site was approximately 644,611 cubic yards.
  7. The conversion from volume to weight for these minerals is 750 cubic yards equals 1,000 tons of minerals.

Findings of Fact

  1. Mining was taking place on the site on January 24 and 25, 1991 when Robert Galli, a mined land specialist with the Department's Region 1 office, observed the site. This mining was taking place in the northeastern part of the site, in what was referred to as "site 1". On both days, a loader was excavating sand and gravel and loading it into trucks.
  2. The area which was the focus of the testimony regarding the amount of mining was a "dogleg" extending east and south of the areas which were being used for mining and processing as of March 1989. This "dogleg" was also referred to as "site 2". An aerial photograph taken on March 27, 1989 shows this area as being partially cleared, with a small amount of mining having started.
  3. An additional aerial photograph which was taken on March 4, 1990 shows a larger excavated area within site 2 and shows more area to the southeast as having been cleared.
  4. Mr. Galli first saw the mining in site 2 when he visited the mine again on August 16, 1990. He again observed sand and gravel trucks being loaded and leaving the site. He observed sand and gravel being excavated from the ground and loaded into trucks in site 2. The excavation at site 2 was approximately 30 feet deep in comparison to the surrounding ground.
  5. An aerial photograph which was taken on February 1, 1991 shows additional excavation in the southeast portion of site 2.
  6. Respondent Henry B. Carlson provided a topographic map of the site to the Department. This map shows the topography as of March 4, 1990 for the western portion of site 2 and the topography as of October 26, 1990 for the eastern portion of site 2. On this map, a portion of site 2 which was cleared but not yet mined as of the March 27, 1989 aerial photograph is shown as being at an elevation over fifty feet deeper than the surrounding area. The March 4, 1990 aerial photograph shows that the eastern portion of the dogleg was partially excavated, partially cleared and partially undisturbed as of March 4, 1990 but the topographic map shows that by October 26, 1990 the eastern portion of the dogleg had a larger excavated area, the floor of which was at an elevation more than 80 feet below the surrounding land. This deepest portion of the east end of the dogleg included an area more than 100 feet long by 100 feet wide. The soil layer above the sand and gravel would be expected to be two feet deep at most and the soil itself would have a commercial value.
  7. A cubic yard equals 27 cubic feet. A object measuring 10 feet by 100 feet by 20.25 feet has a volume of 750 cubic yards.
  8. The Respondents mined significantly more than 750 cubic yards of minerals from site 2 between March 27, 1989 and March 4, 1990. Even if the surface two feet of the minerals had a lower weight per cubic yard than that of sand and gravel, the Respondents had mined significantly more than 1,000 tons of minerals from site 2 between March 27, 1989 and March 4, 1990.
  9. The number of days on which mining took place within the period of the alleged violation cannot be precisely determined from the evidence regarding the dimensions of the mine. This information does, however, provide a basis for estimating a minimum number of days on which mining took place within this time period. The Respondents mined at least 30,000 cubic yards of minerals from site 2 after March 4, 1990. Mining at a rate of 2880 cubic yards per day would be a fast rate of activity for a mine such as this, and using this number to calculate the number of days it would take to mine 30,000 cubic yards would produce a conservative (low) number of days. The Respondents were mining in site 2 on at least ten days after March 4, 1990.
  10. The 30,000 cubic yard volume is based on the presence of an excavation somewhat more than 100 feet by 100 feet in its horizontal dimensions and 80 feet deep, which existed in a portion of site 2 that had only limited disturbance as of March 4, 1990. In addition to this volume, however, the Respondents mined additional minerals in areas that were not mined as of March 4, 1990 but where the topography at later dates is in question. The volume mined was significantly larger than 30,000 cubic yards.
  11. It is likelier than not that the mine operated on all business days excluding holidays, during the time of the alleged violation. There would be approximately 230 business days (Mondays through Fridays minus major holidays observed by most businesses) during the period from March 4, 1990 to February 1, 1991. There would be approximately 260 business days during the period from January 24, 1990 to February 1, 1991.

Discussion

The hearing involved two issues: whether or not the Respondents mined more than 1,000 tons of minerals in 12 calendar months, and if so, the number of additional days of mining which took place after this threshold had been exceeded.

The record clearly indicates that the Respondents mined more than 1,000 tons of minerals during the 12 calendar month period leading up to March 4, 1990.

The second question, regarding the number of days on which the violation occurred, relates to days on which mining occurred at all, regardless of the quantity which was mined on those days. The number of days could be determined through two distinct methods. The first would rely upon a calculation of the total amount which had been mined and an estimate of the rate at which minerals had been mined. The second would examine the evidence to determine whether the operation was essentially continuous. The Motion for Summary Order requested a penalty based on mine operations having occurred on 250 business days. At the hearing, the Department Staff's evidence focussed primarily on the amount and rate of mining, although they also presented evidence which is relevant to whether the mining was a continuous business.

With regard to the calculation based on the amount mined, the ten days of mining discussed in Finding No. 9 above represent a minimum number of days on which the violation occurred. This figure, however, is based on conservative assumptions and upon information which is clear in the record. The exhibits demonstrate that the excavation done after March 4, 1990 was much larger than the deep part of the eastern end of site 2 which was considered in finding that at least 30,000 cubic yards of minerals had been mined. The exhibits and the testimony are not, however, precise enough to support a finding about the actual amount which was mined during a defined period of time by working backwards from the volume of the mine.

The Respondents did not present any evidence regarding the amount of minerals mined during the time of the alleged violations. The Respondents' answering papers did not deny that they had mined more than 1,000 tons of minerals during the time in question but argued that the Department Staff had failed to prove this.

The testimony which the Respondents presented at the hearing focussed on whether topographic mapping could be done from a single aerial photograph and on the modification of the topographic map. While exact topography would not be determined from a single aerial photograph, such photographs can be used to determine whether an area has been excavated and in interpreting the general extent of mining activity. The aerial photographs, the map which was submitted by Mr. Carlson to the Department, and Mr. Galli's observations on August 16, 1990 when considered together demonstrate that the Respondents violated the Mined Land Reclamation Law and that the violation continued on more than ten days.

The hearing record indicates that the mine is a large and long-established mine, which, according to Mr. Carlson's own affidavit, operated "without interruption" during the time of the alleged violation (see Undisputed Facts paragraph 5 above). Absent information to the contrary, it is reasonable to infer that the mine operated on all ordinary business days during that time. The large size of the area which was mined during the time of the alleged violations also supports this inference. The Respondents were on notice that the Department Staff was seeking penalties for a continuing violation during an identified time period and that number of days on which mining took place was an issue to be adjudicated. The Respondents did not attempt to show that the mine operated intermittently or on only a few days of the week. The Respondents were mining on all of the three days on which inspections did take place.

The Notice of Motion for Summary Order (later deemed to be the Complaint) sought a penalty based on 250 business days of operation. In the post-hearing brief, the Department Staff proposed a penalty based on 163 days of operation: the 124 days which were derived from the volume of the mine and from an estimate of the amount mined per day, plus 39 calendar days of operation prior to the date for which the volume calculation began.

A preponderance of the evidence establishes that mining took place on the 230 business days on and after March 4, 1990. The record is not sufficient to support a finding about days of violation of the Mined Land Reclamation Law prior to March 4, 1990 since the first date on which the Respondents were in violation during the January 24 to March 3, 1990 time period is not clear. In addition, the Complaint sought penalties based on 250 days of operation and the relief imposed should not be based on more than 250 days.

The most reasonable inference is that Respondents were in violation of ECL Article 23 as of March 4, 1990 and that the violation continued on an additional 229 days.

The Respondents' December 20, 1991 appeal argued that additional issues should be included in the hearing. As noted above, this appeal is pending and is before the Commissioner. At the hearing, the Respondents also argued that these additional issues should be included in the hearing as mitigating factors with regard to the penalty.

The Respondents sought to include evidence regarding its position that the Department and the Town of Smithtown had delayed the review of Carlson Associates' mining permit application. The length of time involved in processing the application would not be relevant to the present allegations since, according to the Respondents, the application was only submitted on January 14, 1991 (see affidavit of Eugene L. Wishod, Esq., page 8). This is near the very end of the time period of the alleged violations (January 24, 1990 to February 1, 1991). Any delays in processing this application would have no bearing on the Respondents' lack of a permit during the time of the alleged violations.

The Respondents also sought to include in the hearing their position that they had decided to continue operating the mine in order not to jeopardize their argument that the mine is a valid non-conforming use under the Town of Smithtown code. This would not be a mitigating factor.

The negotiations between the Respondents and the Department Staff regarding an order on consent would not be admissible in the present enforcement hearing, for the reasons stated in the Commissioner's Interim Decision In the Matter of Albert A. Lopa, Rosanne Lopa and Rochester Dismantling and Roll-off, Inc. (July 10, 1991).

With regard to the reclamation of the Site, the Respondents sought to bring in evidence of its negotiations and its permit application process in order to support its argument that the mine was eligible for a permit and thus that the Respondents should not be required to reclaim it prior to getting a permit. Although the Department sometimes allows an unpermitted activity to continue while a respondent applies for a permit, or allows remediation to be postponed until the remedial work is included as part of a permit, caution should be exercised in making such allowances. In the present case, the Respondents and the Department Staff were unable to arrive at an agreement for the Respondents to bring the mine into compliance with the Mined Land Reclamation Law while still operating. The Respondents' operation of a major mine without a permit, and without even applying for a permit until almost a year after receiving the Department's initial Notice of Violation, as well as the Respondents' position regarding reclamation as stated at page 6 of Mr. Wishod's affidavit, indicate that it is very unlikely that such allowances should be made in the present case.

If the Commissioner determines that the record needs to be developed regarding the need for reclamation or the nature of the reclamation work, the hearing could be reopened for that purpose.

The Department Staff sought imposition of penalties based on violation of both Environmental Conservation Law Section 23-2711(1) and 6 NYCRR Section 421.1. These two provisions both require that a mining permit must be obtained from the Department for every mine from which more than 1,000 tons of minerals are removed within 12 successive calendar months. 6 NYCRR Section 421.1 is the regulation which implements ECL Section 23-2711(1). The Respondents' actions which violated ECL Section 23-2711 were the same actions which violated 6 NYCRR Section 421.1 and are not separate violations for which separate penalties could be assessed.

Conclusions

  1. The Respondents were in violation of ECL Section 23-2711(1) and 6 NYCRR Section 421.1 on March 4, 1990, having mined more than 1,000 tons of minerals in the preceding 12 calendar months without a permit from the Department for such mining. Both Carlson Associates and Henry B. Carlson, as the general partner of Carlson Associates, are responsible for the violations.
  2. This violation continued on 229 days during the period from March 5, 1990 to February 1, 1991.
  3. ECL Section 71-1307(1) identifies the administrative sanctions which may be imposed for violations of ECL Article 23. At the time of the violations, ECL Section 71-1307(1) provided that any person who violates ECL Article 23 shall be liable to the people of the state for a civil penalty not to exceed one thousand dollars and an additional penalty of five hundred dollars for each day during which such violation continues.
  4. ECL Section 71-1307(1) also authorizes the Commissioner to direct the violator to cease the violation and reclaim and repair the affected site to a condition acceptable to the Commissioner, to the extent possible within a reasonable time and under the direction and supervision of the Commissioner.

Recommendations

I recommend that an Order be issued which: (a) finds the Respondents in violation of ECL Section 23-2711 and 6 NYCRR Section 421.1; (b) imposes a civil penalty in the amount of at least $6,000 (Six thousand dollars) and up to $115,500 (One hundred and fifteen thousand and five hundred dollars) upon the Respondents; (c) orders the Respondents to cease and desist all mining at the site; (d) orders the Respondents to submit an approvable reclamation plan for the site within 30 (Thirty) days of receiving the Order; (e) orders the Respondents to reclaim the site within 60 (Sixty) days of receipt of the Department's approval of the reclamation plans; and (f) orders the Respondents to submit a reclamation bond in the amount of $175,000 (One hundred and seventy five thousand dollars) to the Department within 60 (Sixty) days of receiving the Order.

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