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Desborough, Philip - Hearing Report, March 21, 1994

Hearing Report, March 21, 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

Philip A. Desborough

Thornton Road
P.O. Box 321
Cherry Creek, NY 14723

Permit No. 903-3-30-0217

Invoice No. 34785

Billing Periods 1991, 1992, and 1993

REPORT by

____________/s/_____________
Frank Montecalvo
Administrative Law Judge

March 21, 1994

Proceedings

Environmental Regulatory Program Fees for Mined Land 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).

Philip A. Desborough, Thornton Road, P.O. Box 321, Cherry Creek, NY 14723 ("Permittee") is disputing the Regulatory Program Fee assessed by the Department of Environmental Conservation ("Department") for Billing Periods 1991, 1992, and 1993 (1/1 through 12/31 of each year) in connection with a Mined Land Permit. The dispute was referred to the Department's Office of Hearings on January 11, 1994.

On February 1, 1994, a pre-hearing conference pursuant to 6 NYCRR 481.10 (f) was commenced 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 Philip A. Desborough. This conference was adjourned to a February 24, 1994 conference call to permit Mr. McGuire to complete the file's documentation (invoices, recalculation requests, etc.) for billing periods 1992 and 1993, since the file only contained such documentation for 1991. The ALJ confirmed the discussions by letter to the parties dated February 2, 1994.

Mr. McGuire submitted the requested documentation for billing periods 1992 and 1993 under cover letter dated February 4, 1994.

On February 24, 1994, Mr. Desborough was unavailable to continue the pre-hearing conference, reportedly due to an emergency. The conference call was subsequently rescheduled, and the conference finally continued and concluded on March 10, 1994. The ALJ confirmed the continued discussions by letter to the parties dated March 10, 1994.

During the conference the relevant facts were reviewed. The parties had previously stipulated in writing to a number of facts. Those are set forth verbatim at 1 through 12 under "Summary of Material Facts" below. "Respondent" should be read as "Permittee." The remaining paragraphs under "Summary of Material Facts" were agreed upon during the conference as representing undisputed facts for the purpose of resolving this matter. These facts were confirmed via the previously mentioned letters to the parties. Most of the additional facts reported were chosen to develop the record on disputed years 1992 and 1993 in a manner consistent with the manner in which the parties themselves treated disputed year 1991 in their stipulation.

It was agreed by all participants that there was no dispute as to the material facts, but is a dispute as to what the law requires. 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 resides at Thorton Road Box 321, Cherry Creek, New York 14723.
  2. Respondent is the owner of a certain mine ("Ellington Gravel Products") in Cherry Creek, New York.
  3. Respondent held a mine land permit (#903-3-30-0217).
  4. The Department initially assessed a mined land reclamation fee for 1991 in the amount of $700.00 (invoice #34785, dated September 23, 1991), pursuant to Environmental Conservation Law ("ECL") 72-1003 which sets forth an annual Mined Land Reclamation program fee of $700.00 for mines affecting five acres or less of land.
  5. Respondent submitted a Regulatory Fee Recalculation Request (#11527) dated October 23, 1991, pursuant to 6 NYCRR 481.9(c).
  6. Respondent disputed the $700.00 assessed fee since the mine meets the definition of "minor projects" set forth in ECL 72-1001(3) and since Respondent alleges that no mining has taken place since December 31, 1987.
  7. On November 8, 1991, in response to Respondent's Fee Recalculation Request, the Department reduced the assessed regulatory fee to $400.00 pursuant to ECL 72-1003 which sets forth an annual Mined Land Reclamation program fee of $400.00 for "minor projects."
  8. On November 18, 1991, Respondent continued his dispute of the re-assessed $400.00 fee based on Respondent's allegation that no mining has taken place since December 31, 1987.
  9. Additionally, Respondent disputes the 1992 and 1993 assessed Mined Land Reclamation program fees ($400.00 each year) on the same grounds as above.
  10. Pursuant to ECL 72-1005(3), all persons holding permits or approvals, or subject to regulation under ECL Title 10 are liable for annual fees until such time as reclamation has been completed and approved by the department.
  11. The Department has not received notification that the subject mine has been reclaimed.
  12. Respondent requests that the fee be reduced to $0.00.
  13. The Mined Land Reclamation Permit was originally issued to Permittee during August 1981 or 1982, then reissued at 3 year intervals until 1992 when it was reissued for 5 years.
  14. To date mining has affected approximately 3/4 acre, and the mine has been inactive since 1986 or 1987.
  15. To date DEC has not approved of the mine's reclamation, nor has Permittee requested approval, nor has Permittee surrendered his permit.
  16. Permittee's 9/28/90 and 6/21/93 Mining Permit Applications indicate "1/4" or "less than .5" acres as "Area affected since April 1, 1975" and "0" acres as "Area reclaimed since April 1, 1975."
  17. By invoice dated 8/17/92, the Department billed Permittee $700 for billing period 1992.
  18. Permittee submitted a Regulatory Fee Recalculation Request (assigned number 012975) dated 9/11/92.
  19. Permittee contended none of the $700 fee was due because the project met the "minor project" criteria and there had been no gravel movement since 1986.
  20. On October 27, 1992, in response to Permittee's Fee Recalculation Request, the Department reduced the 1992 assessed regulatory fee to $400.00, because the site had been reclassified as "minor."
  21. By invoice dated 10/28/92, Permittee was billed $400 for the 1992 fee plus $0.77 interest. The invoice also indicated that the total fee assessed was $800.00, with the $400.00 1991 assessment in dispute. Permittee doesn't remember the $800 statement, however, he can't say that he didn't receive it.
  22. On November 10, 1992, Permittee continued his dispute of the re-assessed $400.00 1992 fee based on Permittee's allegations that the project met the "minor project" criteria and that there had been no gravel movement since 1986.
  23. By invoice dated 8/16/93, the Department billed Permittee $400 for billing period 1993.
  24. Permittee submitted a Regulatory Fee Recalculation Request (assigned number 013651) dated 9/8/93.
  25. Permittee contended none of the $400 fee was due because the project met the "minor project" criteria and there had been no gravel movement since 1986.
  26. On October 19, 1993, in response to Permittee's Fee Recalculation Request, the Department notified Permittee that the 1993 fee assessment remained at $400.00, because the "Dispute remains the same as '91 level 3 and '92 level 3 dispute."
  27. By invoice dated 10/20/93, Permittee was billed $400 for the 1993 fee. The invoice also indicated that the total fee assessed was $1200.00, with the $400.00 1991 and $400.00 1992 assessments in dispute.
  28. On November 2, 1993, Permittee continued his dispute of the re-assessed $400.00 1993 fee because the mine was under permit covering August 1990 through 1993, that mining and reclamation plans were approved with a $5,000 bond securing reclamation, and because no gravel had been removed from the mine since 1987.
  29. In his November 2, 1993 submittal Permittee claimed that the 1991 fee was waived in writing and the 1992 fee was waived in a telephone conference. However Permittee is unable to produce a copy of the writing, or identify exactly when and who made the alleged oral waiver. Department Staff is able to verify neither a written waiver of the 1991 fee, nor an oral waiver of the 1992 fee after reviewing permit renewal documentation and consulting with Mr. Meyers, the DEC Mined Land Specialist who has worked most closely with Permittee.
  30. The total amount of assessed fees in dispute is $1,200, covering billing periods 1991, 1992 and 1993.
  31. Until Mr. Desborough received the bill for $1,200, he was under the impression that the fees prior to 1993 had been somehow waived.

Issue

Under the facts set forth above, does the law require payment of the disputed regulatory program fees?

Since it was the basis for the recalculation request for each year billed (Facts 6, 19, and 25), the declaratory ruling should particularly address the situation where the project meets "minor project" criteria and has been inactive for a lengthy period. Also, does the possibility of a waiver need to be considered when it can't be substantiated?

Order of Disposition

This matter is hereby referred to the Department's General Counsel on the issue identified above.

-APPENDIX-

SERVICE LIST for: Philip A. Desborough Regulatory Fee Dispute
Invoice No. 34785 (Billing Period 1991, 1992, and 1993)

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

PERMITTEE:
Philip A. Desborough
Thornton Road
P.O. Box 321
Cherry Creek, NY 14723
Tel. 716-287-2235

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