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Danny Fortune & Co., Inc. - Ruling 2 - Ruling on Motion to Consolidate, November 23, 1999

Ruling 2 - Ruling on Motion to Consolidate, November 23, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of DANNY FORTUNE & COMPANY, INC., for modification of a mined land reclamation permit pursuant to Environmental Conservation Law Article 23, Title 27 (New York State Mined Land Reclamation Law) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Parts 420 through 425 (Mineral Resources: Mined Land Reclamation)and a Solid Waste Management Facility Permit pursuant to Environmental Conservation Law Article 27, Title 7 (Solid Waste Management and Resource Recovery Facilities) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Part 360 (Solid Waste Management Facilities).

(Dutchess County)

NYSDEC Project No. 3-1326-00031/0003

RULING ON MOTION TO CONSOLIDATE

November 23, 1999

Introduction

The Applicant Danny Fortune & Company, Inc., has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility Permit pursuant to Environmental Conservation Law ("ECL") Article 27 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), for a Modification to its current Mined Land Reclamation Law ("MLRL") Permit pursuant to ECL Article 23, Title 27 and 6 NYCRR, Parts 420 through 425 and for a State Pollutant Discharge Elimination System ("SPDES") General Permit. The Applicant proposes to construct and operate a new C&D debris landfill within the existing Palumbo Sand and Gravel mine located east of the Sherman Hill Road near the intersection of Sherman Hill Road and N.Y.S. Route 22, Dover, Dutchess County, New York. The landfill would occupy 58.5 acres of the 96-acre mine property, and would be constructed in 5 phases.

Legislative hearing sessions were held on May 24, 1999 and June 7, 1999 before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Dover Union Free High School, Route 22, Dover Plains, New York at 3:00 p.m. and 7:00 p.m., each day. An issues conference was advertised to commence on June 22, 1999. However, due to the Applicant's submittal of a succession of new filings, the issues conference has been adjourned, most recently until January 2000 or as may be determined by this ruling. The public comment period on the project has been reopened for the filing of written comments and is extended until one week prior to the commencement of the issues conference.

Separately, the Applicant is a Respondent in an enforcement action commenced by Notice of Hearing and Complaint dated September 13, 1999 alleging that the Respondents Danny Fortune & Co., Inc., Palumbo Block Company, Inc., Fortunato Palumbo and Anthony Palumbo (the "Respondents") are unlawfully mining without a permit (NYSDEC Case No. R3-19990909-52) at the Dover Industrial Park site, Dover, New York (the "Dover enforcement action"). The Respondents own various mining interests in New York including sites in Dutchess County and Columbia County and are the owners and developers of the Dover Industrial Park. By motion dated October 15, 1999, the Dover enforcement action Respondents have sought dismissal of the complaint, or in the alternative, an order directing expedited fact finding on the allegations that the Respondents are unlawfully mining without a permit.

The Respondent Palumbo Block Company, Inc., separately, has applied for a Mined Land Reclamation permit pursuant to ECL Article 23 for a proposed mine in Ancram, Columbia County, New York (NYSDEC Case No. 4-1020-00035/00001; the "Ancram permit action"). The Department Staff (NYSDEC Regions 3 and 4) and Interveners in this permit action and the Ancram permit action have raised the issue of Applicants' "record of compliance", including the allegations asserted in the pending Dover enforcement action.

By motion dated October 20, 1999, Staff seek to consolidate the Dover enforcement action with the Dover permit action, or to adjourn or suspend processing of the Dover permit action, pending a disposition in the enforcement action (the "motion to consolidate"). The Applicant Danny Fortune & Co., Inc., has filed papers dated November 5, 1999 in opposition to Staff's motion to consolidate.

My determination on these motions was held in abeyance until motions for intervention in the Dover enforcement action were decided. Only the Town of Dover petitioned for intervention in that proceeding. My ruling denying that motion was issued on November 12, 1999.

Staff's Motion to Consolidate (or Adjourn or Suspend)

In its capacity as a licensing authority, the Department has discretion to evaluate the suitability and fitness of an applicant to hold a NYSDEC permit. Prior violations of law and the applicant's environmental compliance history are factors relevant to a determination of an applicant's suitability and fitness. Matter of Bio-Tech Mills, Inc., v Williams, 105 AD2d 301 (3rd Dept. 1985), aff'd, 65 NY2d 855 (1985), Matter of Al Turi Landfill, Inc., Commissioner's Decision, April 15, 1999, NYSDEC Record of Compliance Enforcement Guidance Memorandum (Revised February 1993).

Pursuant to 6 NYCRR Section 622.10(e)(1), in proceedings that present common questions of fact the proceedings may be consolidated for determination of any or all issues. See, also,6 NYCRR Section 624.8(b)(1)(xv). Staff assert that since the compliance history of the Applicant Danny Fortune & Co., Inc., is an issue in this permit action, including the allegations at issue in the Dover enforcement action, common questions of fact are at issue in both this permit action and in the Dover enforcement action. Staff contend that the Applicant Danny Fortune & Co., Inc., is unfit to hold a Departmental permit. Staff therefore seek consolidation of the Dover enforcement action with the Dover permit action, and that the issues conference be adjourned until the enforcement action has been resolved.

Pursuant to 6 NYCRR Section 621.3(f), "[p]rocessing and review of a permit application may be suspended with written notice to the applicant if an enforcement action has been or is commenced against the applicant for alleged violations of law related to the activity for which the permit is sought or for alleged violations of the ECL related to the facility or site. Such suspension of processing and review may remain in effect pending final resolution of the enforcement action."

By letter dated October 19, 1999 Staff have notified the Applicant that processing and review of its Dover permit application has been suspended due to the pending Dover enforcement action pursuant to 6 NYCRR Section 621.3(f).

Although Staff assert that the Applicant Danny Fortune & Co., Inc., is unfit to hold a Departmental permit, Staff have not sought to revoke the Applicant's current mining permit, nor have Staff sought to suspend processing of the Ancram permit hearing. Nor have Staff provided any rationale for their different approach to the Dover permit action current permit versus the new application or their approach in the Ancram permit action.

The Respondents' Opposition to the Motion to Consolidate

As noted above, counsel for the Applicant Danny Fortune & Co., Inc., also a Respondent in the Dover enforcement action, filed an affirmation in opposition to Staff's motion to consolidate. The other Dover enforcement action Respondents have not requested leave to file in opposition to Staff's motion to consolidate, nor have they made any filing in response to Staff's motion to consolidate.

The Applicant asserts the motion should be denied because it would confuse the issues and cause undue delay in all three proceedings, the Dover enforcement action, the Dover permit action and the Ancram permit action. Further, the Applicant asserts that because it has retained different legal counsel in each proceeding, forcing those attorneys to work together would be disruptive to each attorney's presentation of their respective case.

Lastly, the Applicant contends that common issues of fact do not exist in the instant proceedings.

Discussion

Regarding 6 NYCRR Section 621.3(f), once Staff have referred the action to the Office of Hearings and Mediation Services, Staff's authority to invoke 6 NYCRR Section 621.3(f) is subject to motion practice, as Staff have done in this action. However, suspension of processing and review under 6 NYCRR Section 621.3(f) is a discretionary matter.

Concerning common issues of fact between the Dover enforcement and permit actions, record of compliance is proposed by Staff as an issue in the Dover permit action. It follows that facts pertaining to the Dover enforcement allegations are facts common to the Dover permit action; those facts are central to determination of the record of compliance issue in the Dover permit action.

Nonetheless, I agree with the Applicant's assertion that consolidation would likely cause undue delay in all three proceedings.

The enforcement action will be scheduled, at a minimum, for an expedited ffact findinghearing as discussed above. The disposition on the Dover permit action will occur most expeditiously if the actions are not consolidated. Otherwise, the enforcement action issues will be subsumed by the Dover permit action timetable, in all likelihood resulting in delay in a final agency determination on the enforcement action and in disposition of the Respondents' two pending permit actions. In my view, factors of administrative efficiency militate towards denial of Staff's motion to consolidate. An expeditious determination in the Dover enforcement case also will allow a full and expeditious review of the Respondents' two permit actions, including record of compliance issues.

Ruling: Staff's motion for consolidation of the Dover enforcement action and the Dover permit action is denied.

I have already adjourned the Dover permit action from November 4, 1999 into January 2000 at the earliest, to allow Staff and interveners additional time to review the Applicant's September 1999 and October 1999 filings. At this time, it makes sense to proceed with the issues conference, reserving the record of compliance issue until a disposition is reached on the Dover enforcement action. It may be appropriate, however, to adjourn any adjudicatory hearing in this permit action so that all issues, including record of compliance may be adjudicated together.

Therefore, Staff's request to suspend review and processing (or grant a further adjournment) of the Dover permit action is denied, without prejudice to renew.

I will contact the parties in the near future to set a schedule for the issues conference, ideally commencing in January 2000. Since we already have ordered the issues (in the agenda dated October 30, 1999), we only need agree upon hearing dates. Any amended petitions for party status or additional proposed Staff issues based upon the Applicant's recent filings must be received by this Office by December 15, 1999. We will adjust the issues conference schedule, if necessary, to accommodate any new proposed issues asserted by Staff or the Interveners.

_____________/s/_____________
Administrative Law Judge

Dated:Albany, New York
November 23, 1999

To: Danny Fortune & Co., Inc./Dover Permit Action
Distribution List

cc: Palumbo/Ancram Permit Action Distribution List
L. Zeisel, Esq.
D. Cordisco, Esq.

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