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Dimick, Charles - Order, May 13, 2003

Order, May 13, 2003

NEW YORK STATE: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of

alleged violations of Environmental Conservation Law (ECL) Article 23
and Part 422 of the Official Compilation of Codes, Rules and Regulations of the State
of New York (6 NYCRR)

AND

Dispute of ECL Article 72, Title 10, Mined Land Reclamation Program Fees and
6 NYCRR Part 480 et seq. (Program Fees) by

Charles Dimick
Chandler Road
Brushton, New York 12916

RESPONDENT/APPELLANT
ORDER
DEC Case No.: R5-00098-91-09

WHEREAS:

  1. After duly serving a Notice of Hearing and Complaint dated July 18, 2000, upon Charles Dimick (Respondent/Appellant), staff from the New York State Department of Environmental Conservation (Department Staff) moved for an order without hearing, pursuant to 6 NYCRR §622.10, with respect to the first and third causes of action alleged in the Complaint. In a ruling dated July 25, 2002, Administrative Law Judge (ALJ) Daniel P. O'Connell granted the Department's motion with respect to liability on the first cause of action. The third cause of action relates to a regulatory fee dispute. ALJ O'Connell's July 25, 2002 ruling held that regulatory fee disputes must be resolved pursuant to the procedures outlined in §481.9 and §481.10, rather than the procedures outlined in Part 622. Therefore, the Department's motion for order without hearing concerning the third cause of action was denied.
  2. With respect to the disputed regulatory fees, the parties participated in a pre-hearing conference pursuant to §481.10(f)(1) on September 27, 2002 to narrow and resolve issues concerning the disputed fees, and to define and limit the scope of any issues remaining for adjudication. Based on the discussion from the pre-hearing conference, ALJ O'Connell determined there were no issues of fact concerning the regulatory fees. In a letter dated September 30, 2002, ALJ O'Connell informed the parties that an adjudicatory hearing was not necessary.
  3. Upon review of ALJ O'Connell's Report (copy attached), and the record in this proceeding, I concur with its Findings of Fact, Conclusions, and Recommendations which establish that Respondent/Appellant violated both the conditions of his permit, and the incorporated reclamation plan, by failing to reclaim the a sand and gravel mine located on Conservation Road in the Town of Dickinson, Franklin County (the Site) concomitantly with mining activities. In addition, Respondent/Appellant violated §422.3(e) by failing to reclaim the Site within two years after the mining permit expired. This violation continued from July 28, 1992 to July 18, 2000, the date of the Complaint.
  4. Concerning the regulatory fee dispute, the procedures outlined in 6 NYCRR §481.9 and §481.10 have been followed. Based on the record before me, there are no facts in dispute nor any issue of law. With respect to mining operations regulated by the Department, I conclude that the only way for any permittee to avoid regulatory fee liability is to reclaim the affected land, and have the Department inspect and approve the reclamation. Therefore, as long as the Site remains unreclaimed, Mr. Dimick remains liable for payment of the regulatory fees.

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

  1. It is determined that Respondent/Appellant violated the conditions of his permit and §422.3(e) by not reclaiming the Site, and Respondent/Appellant is assessed a total civil penalty of $5,000. This civil penalty is apportioned as follows. Mr. Dimick is assessed $2,000 for the initial violation of failing to reclaim the Site. The balance ($3,000) is assessed for the continuous nature of the violation. Full payment of the assessed civil penalty shall be made by cashiers or certified check or money order drawn to the order of "NYSDEC" within 30 days following service of a conformed copy of this Order upon Respondent/Appellant.
  2. Respondent/Appellant shall submit a work plan to implement the alternative reclamation plan to the Department within 30 days following service of a conformed copy of this Order upon Mr. Dimick. After obtaining approval of such work plans from the Region 5 Department Staff, Mr. Dimick shall reclaim the Site consistent with the alternative reclamation plan within eight months of receipt of such approval of his work plan. The alternative reclamation plan appears in the record as Schedule A of Exhibit D submitted by Staff in support of its motion. Accordingly, Respondent/Appellant shall place clean rock fill along the cut slope of the mine face. The diameter of the rocks used for fill must be at least eight inches in diameter. The slope of the rock fill shall be no less than at a ratio of 1:1¼, and the height of the rock fill must be above the highest seep or spring on the mine face. The remainder of all disturbed areas on the Site must be seeded and mulched.
  3. Respondent/Appellant shall pay $7,000 in fees based on an assessment of $700 per year for the years 1991 through 2000. Respondent/Appellant shall pay the full amount of the assessed regulatory fees to the Department within 90 days following service of a conformed copy of this Order upon Mr. Dimick.
  4. All communications between Respondent/Appellant, Charles Dimick, and the Department concerning this Order, including the payment of the penalty and regulatory fees, shall be made to the Department's Region 5 Director, Route 86 - P.O. Box 296, Ray Brook, New York 12977.
  5. The provisions, terms and conditions of this Order shall bind Respondent/Appellant, his officers, directors, agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on behalf of Respondent/Appellant.

For the State of New York Department
of Environmental Conservation

/s/
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
May 13, 2003

To: Charles Dimick (via Certified Mail)
Chandler Road
Brushton, New York 12916

Christopher A. Lacombe, Esq.
Regional Attorney
NYS DEC Region 5
PO Box 296, Route 86
Ray Brook, New York 12977

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the matters of
Alleged violations of Environmental Conservation Law (ECL) Article 23 and Part 422 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
(6 NYCRR)

AND
Dispute of ECL Article 72, Title 10, Mined Land Reclamation Program Fees and
6 NYCRR Part 480 et seq. (Program Fees)

- by -

Charles Dimick
Chandler Road
Brushton, New York 12916

Respondent/Appellant

DEC Case No.: R5-00098-91-09

REPORT

- by -

/s/
Daniel P. O'Connell
Administrative Law Judge

October 8, 2002

Summary

After duly serving a notice of hearing and a complaint dated July 18, 2000 upon Charles Dimick (Respondent/Appellant), Staff from the New York State Department of Environmental Conservation (Staff) moved for an order without hearing, pursuant to 6 NYCRR §622.10, with respect to the first and third causes of action alleged in the complaint. In a ruling dated July 25, 2002 (the Ruling), Administrative Law Judge (ALJ) Daniel P. O'Connell granted Staff's motion with respect to liability on the first cause of action. This Report concludes that Mr. Dimick violated §422.3(e) and the conditions of his mining permit by failing to reclaim the Site. The Report recommends that the Commissioner order Respondent/Appellant to reclaim the Site and to pay a civil penalty of $5,000.

In the Ruling, the ALJ denied Staff's motion with respect to the third cause of action on procedural grounds. The third cause of action relates to a regulatory fee dispute. The Ruling held that regulatory fee disputes must be resolved pursuant to the procedures outlined in §481.9 and §481.10, rather than the procedures outlined in Part 622. With respect to the disputed regulatory fees, the parties participated in a pre-hearing conference pursuant to §481.10(f)(1). This Report concludes that Respondent/Appellant must pay regulatory fees, and recommends that the Commissioner order Mr. Dimick to pay regulatory fees totaling $7,000.

Proceedings

Staff issued a permit to Mr. Dimick to operate a sand and gravel mine at Conservation Road in the Town of Dickinson, Franklin County (the Site). The permit was effective from July 28, 1987 to July 28, 1990. Staff commenced an administrative enforcement matter by duly serving a notice of hearing and complaint dated July 18, 2000 upon Respondent/Appellant.

In the July 18, 2000 complaint, Staff asserted three causes of action. First, Respondent/Appellant allegedly violated §422.3(e) and the conditions of the permit by failing to reclaim the mine within two years of the expiration of his permit. Second, Respondent/Appellant allegedly violated §422.2(c)(3)(iii) and Mining Condition No. 8 of the permit by mining within 25 feet of his property line. This violation allegedly took place from July 28, 1987 to July 28, 1990. Third, Staff alleged that Respondent/Appellant has not paid the $700 annual regulatory fee from January 1991 through January 2000, for a total of $7,000. Regulatory fees are authorized pursuant to ECL §72-1003.

By letter dated August 4, 2000, Mr. Dimick answered Staff's complaint. With respect to the first cause of action, Respondent/Appellant asserted that the mine has not been reclaimed because water originating on the adjacent property owned by the State seeps through the mine face on his property, and washes out sections of the gravel bank. Given these circumstances, Mr. Dimick contends that reclamation is impossible. In addition, Respondent/Appellant asserted that he has not extracted sufficient gravel from the Site to require a mining permit. Concerning the second cause of action, Respondent/Appellant denied that he has mined within 25 feet of his property line.

With respect to the third cause of action, Mr. Dimick disputed the assessed regulatory fees, and appeals Staff's assessment. According to Respondent/Appellant, he did not mine more than four acres of the Site, and the Site is grandfathered. In addition, Mr. Dimick argued that he no longer has a valid mining permit, and therefore, cannot be held liable for regulatory fees.

With a cover letter dated March 1, 2001, Staff filed a motion for order without hearing pursuant to 6 NYCRR §622.12. Staff's motion related only to the first and the third causes of action. Respondent/Appellant did not respond to Staff's motion for order without a hearing.

Shortly after service of Staff's motion for order without hearing, the parties agreed to participate in settlement discussions. Administrative Law Judge Maria E. Villa convened a settlement conference with the parties on December 28, 2001 at Staff's Region 5 Offices in Ray Brook. Unfortunately, the parties could not reach an agreement.

In a letter dated April 4, 2002, Mr. Dimick objected to having ALJ Villa decide Staff's motion for order without hearing because the ALJ Villa had participated in settlement discussions. As a result of Mr. Dimick's objection, the captioned matters were reassigned to me. I informed the parties about the reassignment in a letter dated June 27, 2002.

In the Ruling, I granted Staff's motion with respect to liability on the first cause of action. I denied Staff's motion with respect to the third cause of action because §622.1(b) expressly prohibits the use of the procedures outlined in Part 622 to resolve regulatory fee disputes. Accordingly, I convened a pre-hearing conference, pursuant to §481.10(f)(1), on September 27, 2002 to narrow or resolve issues concerning the disputed fees, and to define and limit the scope of any issues remaining for adjudication. After considering the discussion from the pre-hearing conference, I found there were no issues of fact concerning the disputed regulatory fees. In a letter dated September 30, 2002, I informed the parties that an adjudicatory hearing was not necessary.

Discussion

This Report incorporates by reference the findings of fact, discussion and conclusions presented in the Ruling on Staff's motion for order without hearing. A copy of the Ruling is attached to this Report as Appendix A. This Report also incorporates my letter dated September 30, 2002, which summaries the pre-hearing conference held on September 27, 2002 pursuant to §481.10(f)(1). A copy of the September 20, 2002 letter is attached to this Report as Appendix B.

The discussion that follows is divided into two sections. The first section addresses the first and second causes of action alleged in Staff's July 18, 200 complaint, and the relief sought by Staff with respect to these causes of action. The second section discusses the disputed regulatory fees.

Motion for Order without Hearing: 1st and 2nd Causes of Action

According to the first cause of action in Staff's July 18, 2000 complaint, Respondent/Appellant violated §422.3(e) and the conditions of his permit by failing to reclaim the mine within two years after the expiration of his permit. In the second cause of action, Staff alleged that Respondent/Appellant violated §422.2(c)(3)(iii) and Mining Condition No. 8 of his permit by undertaking mining activities within 25 feet of Respondent/Appellant's property line. The second violation allegedly continued from July 28, 1987 to July 28, 1990.

As explained in the Ruling, Staff issued a permit to Mr. Dimick on July 28, 1987, which authorized him to mine gravel at the Site until July 28, 1990. A mining plan and a reclamation plan, both dated June 9, 1987, were attached to the permit.

In addition to the mining and reclamation plans, Mr. Dimick's permit included special conditions related to the operation and reclamation of the mine. For example, Reclamation Condition No. 5 required Mr. Dimick to seed and revegetate the disturbed areas of the mine site. Also, Reclamation Condition No. 6 required Mr. Dimick to reclaim the Site concurrently with mining operations, and to begin final reclamation immediately upon completion of mining.

DEC Staff visited the Site on July 20, 1998, nearly eight years after the permit expired. The Staff observed that the mined Site had never been reclaimed, despite these permit conditions, and the requirement outlined in §422.3(e). Consequently, Mr. Dimick violated §422.3(e) and various conditions of his mining permit when he failed to reclaim the Site by July 28, 1992, which is two years after his mining permit expired on July 28, 1990.

In the motion, Staff did not request a determination on the second cause of action. Consequently, the Ruling made no findings of fact or conclusions about this allegation. Since it was not clear from the motion whether Staff would request additional relief after a hearing about the second cause of action, I reserved making any recommendation about whether to grant the relief requested by Staff.

By letter dated August 23, 2002, Staff clarified its position with respect to the second cause of action. The letter states, in pertinent part, that from Staff's perspective "it was not necessary to make a motion on the second cause of action in order to obtain the penalty and remedial relief requested." By proving the violation alleged in the first cause of action, Staff essentially contends that it provided sufficient justification for the relief it requested in its motion for order without hearing. A final determination on the second cause of action remains pending.

The relief requested by Staff includes an order directing Respondent/Appellant to pay a civil penalty of $5,000 and to reclaim the Site. Based on the authority provided by ECL §71-1307(1), the maximum civil penalty is $5,000 for a violation of ECL Article 23, Part 422, or a condition of a permit issued pursuant thereto. Additional civil penalties up to $1,000 may be assessed for each day that the violation continues.

Staff's motion papers show that Respondent/Appellant has avoided substantial costs over the last ten years by not reclaiming the Site. In addition to the avoided costs associated with the Mr. Dimick's failure to reclaim the Site, Staff argued that Respondent/Appellant's failure to pay regulatory fees over the same ten year period totaling $7,000 is an additional economic benefit enjoyed by Respondent/Appellant. The issue of regulatory fees is addressed below.

Although Staff requested a civil penalty of $5,000, Staff's stated priority is reclamation of the Site. Staff is concerned that the assessment of a larger civil penalty may preclude reclamation, even though Respondent/Appellant has enjoyed a significant economic benefit by not reclaiming the Site and by not paying regulatory fees.

The record shows that water flows from the face of the mine at some point below the original elevation of the bank. The flow of water erodes material from the toe of the mine face. As explained above, Mr. Dimick, as the property owner and former permittee, is responsible for the reclamation of his Site consistent with the conditions of his permit. A reasonable inference can be drawn that Mr. Dimick caused the water to flow from the mine face by mining below the water table, in violation of the terms of his mining permit. Such a situation, which has persisted for ten years, has the potential to contravene water quality standards. Therefore, the Commissioner may reasonably consider these circumstances to be an additional aggravating factor that would further justify the requested civil penalty.

Based on the foregoing reasons, the Commissioner should assess a total civil penalty of $5,000. The recommended civil penalty should be apportioned as follows. The civil penalty should be $2,000 for the initial violation of failing to reclaim the Site. The balance, $3,000, should be assessed for the continuous nature of the violation.

Mr. Dimick objected to reclaiming the Site because he continues to remove limited amounts of material from the Site. In addition, Respondent/Appellant complained that reclamation is not possible because water flows from the mine face. As explained in the Ruling, Mr. Dimick had an opportunity during the pendency of this enforcement action to propose alternative reclamation plans, but did not.

In response to Mr. Dimick's concern about the flowing water, Staff has developed an alternative. The alternative reclamation plan requires the placement of clean rock fill along the cut slope of the mine face. The diameter of the rocks used for fill should be at least eight inches. The slope of the rock fill should be at a ratio of 1:1¼, and the height of the rock fill should be above the highest seep or spring on the mine face. The remainder of all disturbed areas on the Site should be seeded and mulched. According to Staff's witness, the alternate remediation plan would address the water seeping from the mining face better than the original reclamation plan.

Reclamation of the Site is required pursuant to the regulations and the conditions of the mining permit. Staff's proposed alternative reclamation plan is reasonable, and the Commissioner should direct Mr. Dimick to implement it.

Regulatory Fees

The third cause of action in the July 18, 2000 complaint relates to Staff's assessment of regulatory fees, which are authorized by ECL Article 72, Title 10. According to Staff, Respondent/Appellant owes a total of $7,000 in regulatory fees based on an assessment of $700 per year from 1991 through 2000. Staff argues that Mr. Dimick is responsible for paying these fees because he has not reclaimed the Site.

Mr. Dimick challenges the assessed regulatory fees. He contended that he should not have to pay the fees because his permit expired in July 1990, and is therefore invalid.

The Ruling denied Staff's request for a motion for order without hearing concerning the disputed regulatory fees on procedural grounds. Section 622.1(b), states that Part 622 does not apply to the determination of disputed environmental regulatory program fees that are assessed pursuant to ECL Article 72. The Ruling concluded that the procedures outlined in §481.9 and §481.10 must be used to resolve Mr. Dimick's challenge to Staff's program fee determination. Therefore, consistent with the Ruling, I conducted a pre-hearing conference, pursuant to §481.10(f)(1), on September 27, 2000. In a letter dated September 30, 2002 (Appendix B), the parties were informed there were no factual issues in dispute based on the discussion at the pre-hearing conference, and that a hearing was not necessary.

ECL §§72-1005(1) and (3) identify who is responsible for paying regulatory fees. Section 72-1005(1) states that persons are liable for regulatory fees beginning on January 1, 1991 if they hold a permit or are subject to the mining regulations. Pursuant to §72-1005(3), anyone subject to the mining regulations must continue to pay annual regulatory fees until reclamation has been completed and approved by Staff. For affected land of an acreage equal to or less than five acres, the annual regulatory fee is $700, as provided for by ECL §72-1003(2).

The DEC General Counsel has issued several Declaratory Rulings which contradict Mr. Dimick's claim that he is not liable to pay regulatory fees because he has not had a valid mining permit since July 28, 1990. In these Declaratory Rulings, the General Counsel has determined that the only way a permittee may avoid fee liability is to reclaim the affected land, and have the Department inspect and approve the reclamation. Only the Department can approve the reclamation of the mined land and thereby terminate liability for payment of regulatory fees. Since a permittee remains legally obligated to reclaim the Site even after the expiration of a permit, and because a permittee remains subject to regulation until the reclamation of the affected land is complete, a permittee is, therefore, liable for regulatory fees until reclamation is complete. Finally, the Department may not waive the regulatory fees.

As determined above, the Site has not been reclaimed. Based on the Declaratory Rulings identified above, Mr. Dimick is liable for the assessed regulatory fees, and will remain liable for additional annual fees until the Site is reclaimed and approved by the Department. Accordingly, the Commissioner should direct Respondent/Appellant to pay fees totaling $7,000. The regulatory fees owed are $700 per year for ten years from 1991 through 2000.

Conclusions

  1. Mr. Dimick violated the conditions of his permit, and its approved reclamation plan, by failing to reclaim the Site concomitantly with mining activities. In addition, Respondent/Appellant violated §422.3(e) by failing to reclaim the Site by July 28, 1992, which is two years after his mining permit expired. This violation has continued from July 28, 1992 to the date of Staff's motion.
  2. The only way that a permittee may avoid regulatory fee liability is to reclaim the affected land and have the Department inspect and approve the reclamation. Since the Site has not been reclaimed, Mr. Dimick must pay regulatory fees until he reclaims the Site.

Recommendations

  1. The Commissioner should find that Mr. Dimick violated the conditions of his permit and §422.3(e) by failing to reclaim the Site by July 28, 1992, which is two years after his mining permit expired.
  2. For this violation, the Commissioner should access a total civil penalty of $5,000, and direct Mr. Dimick to reclaim the Site consistent with the alternative reclamation plan proposed by Staff in the motion for order without hearing. The alternative reclamation plan is outlined above.
  3. Because Mr. Dimick has not reclaimed his Site, his liability for regulatory fees continues. Therefore, the Commissioner should direct Mr. Dimick to pay $7,000 in fees based on an assessment of $700 per year for ten years from 1991 through 2000.

NEW YORK STATE: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of
alleged violations of Environmental Conservation Law (ECL)
Article 23 and Part 422 of the Official Compilation of Codes, Rules and
Regulations of the State of New York (6 NYCRR) by

Charles Dimick
Chandler Road
Brushton, New York 12916

RESPONDENT

Ruling on Department's Motion
for Order without Hearing

DEC Case No.: R5-00098-91-09

July 25, 2002

Summary

This ruling addresses a motion for an order without hearing by the New York State Department of Environmental Conservation (the Department) concerning its complaint dated July 18, 2000 wherein three causes of action were alleged. I grant the Department's motion with respect to the first cause of action. I deny the Department's request for an order without hearing with respect to the third cause of action because disputes related to the Department's regulatory fee determinations must be resolved in a manner consistent with the procedures outlined in 6 NYCRR §481.9 and §481.10.

The Department's motion for an order without hearing does not address the second cause of action alleged in the July 18, 2000 complaint. Accordingly, a hearing about the second cause of action is necessary, if the Department wants to pursue the alleged violation further. I reserve making a recommendation about the civil penalty and Site reclamation until a hearing concerning the second cause of action is held. A final recommendation about the disputed regulatory fees will be made after a hearing is held consistent with the procedures outlined in §481.10.

Proceedings

The Department issued a permit [DEC No. 5-1638-7/1] to Charles Dimick (the Respondent) to operate a sand and gravel mine at Conservation Road in the Town of Dickinson, Franklin County (the Site). The effective dates of the permit were from July 28, 1987 to July 28, 1990. The Department commenced this administrative enforcement matter with service, by certified mail, return receipt requested, of a notice of hearing and complaint, dated July 18, 2000, upon Mr. Dimick.

In the July 18, 2000 complaint, the Department asserted three causes of action. In the first cause of action, the Department alleged that the Respondent violated 6 NYCRR §422.3(e), and the terms and conditions of his permit, by failing to reclaim the mine within two years of the expiration of his permit. In the second cause of action, the Department alleged that the Respondent violated 6 NYCRR §422.2(c)(3)(iii) and Mining Condition No. 8 of the permit by conducting mining activities within 25 feet of the Respondent's property line. This violation allegedly took place from July 28, 1987 to July 28, 1990. In the third cause of action, the Department alleged that the Respondent has not paid his $700 annual regulatory fee from January 1, 1991 to the present, for a total of $7,000. Regulatory fees are authorized pursuant to ECL §72-1003.

In the complaint, the Department requested the maximum civil penalty authorized by ECL §71-1307, which is $5,000 per violation, plus an additional $1,000 per day for each day a violation continues. The Department also wants the Respondent to pay all the regulatory fees he owes, and to reclaim the Site.

In a letter dated August 4, 2000, Mr. Dimick answered the Department's complaint. With respect to the first cause of action, the Respondent asserted that the mine has not been reclaimed because water originating on the adjacent property owned by the State seeps through the mine face on the Respondent's property, and washes out roads and sections of the bank. The Respondent also stated that he did not extract sufficient gravel from the pit to require a mining permit. Concerning the second cause of action, the Respondent denied that he has mined within 25 feet of his property line. With respect to the third cause of action concerning regulatory fees, the Respondent contended that he has never mined four acres of the Site, and that the Site is grandfathered.

With a cover letter dated March 1, 2001, the Department moved for an order without hearing pursuant to 6 NYCRR §622.12. With the notice of motion dated February 28, 2001, the Department included a motion, an affirmation by the Department's counsel, Christopher A. Lacombe, Esq., and supporting affidavits by David A. Trost and Robert Schwank. Mr. Trost is the Mined Land Specialist from DEC Region 5. Mr. Schwank is an accountant in the Department's Bureau of Revenue Accounting. In the motion, the Department requested summary judgment on the first and third causes of action described above. The Department requested a total civil penalty of $5,000. According to the motion, the outstanding regulatory fees total $7,000. Exhibits A through I were attached to Mr. Lacombe's affirmation.

Shortly after service of the Department's motion for an order without hearing, the parties agreed to participate in settlement discussions. After many unsuccessful attempts to agree on a date for a settlement conference, the Department requested that Administrative Law Judge (ALJ) Maria E. Villa schedule a conference date. Subsequently, ALJ Villa convened a settlement conference with the parties on December 28, 2001 at the Department's Region 5 Offices in Ray Brook. At the conference, the Department agreed to investigate whether the State would be willing to purchase the Site. The Department agreed to report by January 31, 2002. In addition, the Respondent agreed to retain a consultant who would evaluate the Department's alternate reclamation plan, and provide any alternative reclamation plans that the consultant deemed appropriate, by February 28, 2002.

In a letter dated January 24, 2002, the Department's counsel stated that the Department did not want to purchase the Respondent's property. The Honorable Raymond A. Susice, Member of the Franklin County Legislature, filed a letter dated February 28, 2002 on Mr. Dimick's behalf. According to Mr. Susice, the Site would be very difficult to remediate because water seeps from the mining face and flows into the pit. Mr. Susice requested that the Department reconsider its position. Subsequently, in a letter dated March 21, 2002, the Department asked ALJ Villa to decide the pending motion for an order without hearing.

The Respondent did not file any papers opposing the Department's motion for order without a hearing.

When the settlement conference convened in December 2001, ALJ Villa explained that upon a party's request, another ALJ would be assigned to decide the pending motion. In a letter dated April 4, 2002, Mr. Dimick objected to having any DEC ALJ decide the Department's motion for an order without hearing. According to Mr. Dimick, he has been treated unfairly. As a result of Mr. Dimick's objection, the captioned matter was reassigned to ALJ Daniel P. O'Connell. ALJ O'Connell informed the parties about the reassignment in a letter dated June 27, 2002.

Findings of Fact

  1. With a letter dated August 4, 2000, Mr. Dimick (the Respondent) answered the Department's notice of hearing and complaint dated July 18, 2000.
  2. By certified mail return receipt requested, the Department served the Respondent with a copy of the notice of motion for order without hearing dated February 28, 2001, and related documents. Charles Dimick signed the domestic return receipt, which the DEC Region 5 Office received on March 8, 2001.
  3. Mr. Dimick's gravel mine is located on Conservation Road in the Town of Dickinson, Franklin County (the Site). The adjacent property is owned by New York State.
  4. On July 28, 1987, the Department issued a permit [DEC Permit No.: 5-1638-7/1-0; Mine File No.: 5033-30-0481] to the Respondent, which authorized him to mine gravel at the Site. The effective dates of the permit were from July 28, 1987 to July 28, 1990. The permit included special conditions related to the operation and reclamation of the mine. Attached to the permit were a mining plan and a reclamation plan, both dated June 9, 1987 (Exhibit B).
  5. Reclamation Condition No. 5 from the permit required the Respondent to seed and revegetate the disturbed areas of the mine site. In addition, Reclamation Condition No. 6 required the Respondent to reclaim the site concurrently with mining operations. This condition also required the Respondent to begin final reclamation immediately upon completion of mining.
  6. David Trost is the Mined Land Specialist for DEC Region 5. On July 20, 1998, nearly eight years after the permit expired, Mr. Trost visited the Site and observed that no portion of the Site had been reclaimed (Trost Affidavit and Exhibit C).
  7. At a point below the original elevation of the property, water flows from the face of the mine, and into the pit. The source of the water appears to be from the adjoining property owned by NY State. The flow of water has eroded material from the toe of the mining face.
  8. Exhibit D is a letter dated February 7, 2000 from the Department's counsel, and refers to prior correspondence dated September 1, 1998 concerning the need to reclaim the Site. In addition, Exhibit D also states that Attorney Lacombe visited the Site on two occasions with members of the Department Staff to consider various reclamation options. Attached to Exhibit D is a Consent Order that provides for a schedule and an alternative plan for reclaiming the Site.
  9. On January 1 of each year since 1991, the Department has sent the Respondent an invoice assessing a regulatory fee in the amount of $700. The Department's regulatory fee determination totals $7,000 for the period from January 1, 1991 to September 12, 2000, based on an invoice dated September 12, 2000 (Exhibit F). The invoice does not include any interest or penalties.
  10. On November 1, 1993, the Respondent returned a document to the Department concerning the pending fees entitled, "Regulatory Fee Determination - 'Continued Disagreement' "(Exhibit G). In Exhibit G, Mr. Dimick stated that he does not have a mining permit. Exhibit G also includes copies of letters dated May 4, 1992 and November 11, 1992. In these letters, the Respondent objected to being assessed regulatory fees because his mining permit either expired, or was revoked in 1990.

Discussion

Motion for Order without Hearing

The Department seeks an order without hearing against the Respondent pursuant to §622.12. Section 622.12(d) provides that "a contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR [New York Civil Practice Law and Rules] in favor of any party." This language follows the wording of Section 3212 of the CPLR, the provision governing motions for summary judgment.

Section 622.12(e) mandates denial of the motion "with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing." To succeed on the motion, the Department must demonstrate, based upon the papers submitted, that there is no material issue of fact in dispute such that a hearing is required, and that summary relief is appropriate, based upon the undisputed facts.

Summary judgment is a drastic remedy that deprives a litigant of his day in court, and "should only be employed when there is no doubt as to the absence of triable issues." Moreover, on a motion for summary relief, a court will accept as true the evidence put forward by the party opposing the motion.

Even if the motion for order without hearing is denied, the administrative law judge may issue an order establishing undisputed facts for all purposes in the action. The following discussion provides an explanation for the foregoing findings of fact, which are established for all purposes in this action.

1. First Cause of Action

In the first cause of action, the Department alleged that the Respondent violated §422.3(e), and the terms and conditions of his permit, by failing to reclaim the mine within two years of the expiration of his permit. Section 422.3(e) requires reclamation within two years after mining ceases. To support the alleged violation, the Department offered Mr. Lacombe's affirmation, Mr. Trost's affidavit, and Exhibits A, B, and C. Other than his letter dated August 4, 2000, which answered the Department's complaint, the Respondent did not respond to the Department's motion for an order without hearing.

The Respondent does not oppose the Department's motion, or offer any evidence to rebut the Department's evidence. Exhibit B is a copy of a permit issued to Mr. Dimick, which was effective from July 28, 1987 to July 28, 1990. The conditions of Mr. Dimick's permit require reclamation concurrent with mining activities (Reclamation Condition No. 6), and in a manner consistent with the approved reclamation plan attached to the permit (General Condition No. 17). The terms and conditions of the permit, as well as the attached reclamation plan clearly require Mr. Dimick to reclaim the mining site.

According to Mr. Trost's affidavit, Exhibit C is a set of two photographs of the unreclaimed mining Site. These photographs show a front end loader and backhoe working the mining face, and stockpiling material on the Site. Generally, the Site is not vegetated and the angle of the slopes appears to be greater than 50%.

The Department offered Exhibit A to show that the Respondent filed an application for his July 28, 1987 permit. Further inspection of the document shows, however, that Exhibit A is a renewal application that the Department's Region 5 Office received on June 20, 1990. Although it could be argued that Mr. Dimick may have filed a timely renewal application that would have allowed him to continue mining operations at the Site, I find, based on the information presented in Exhibit G, that Mr. Dimick did not receive a renewal permit. Exhibit G is a set of documents that Mr. Dimick sent to the Department concerning the assessment of regulatory fees. In these documents, Mr. Dimick stated that he should not have to pay a regulatory fee because either he does not have a permit or his permit has been revoked. Whether the Respondent filed an application before the Department issued him a mining permit in July 1987 is irrelevant to the question of whether the Respondent violated the terms and conditions of that permit after it expired on July 28, 1990. In addition, Exhibit A does not establish the facts it was offered to show. Therefore, I assigned no weight to Exhibit A.

I conclude that Mr. Dimick violated the terms and conditions of his permit, and its approved reclamation plan by failing to reclaim the Site concomitantly with mining activities (Exhibit B, Reclamation Condition No. 6). In addition, I conclude that Mr. Dimick violated §422.3(e) when he did not reclaim the Site by July 28, 1992, which is two years after his mining permit expired on July 28, 1990.

2. Second Cause of Action

In the second cause of action, the Department alleged that the Respondent violated 6 NYCRR §422.2(c)(3)(iii) and Mining Condition No. 8 by conducting mining activities within 25 feet of the Respondent's property line. The Department does not seek an order without hearing with respect to the second cause of action. Paragraph 3 of Mr. Lacombe's affirmation states, in pertinent part, that "no triable issue of fact exists for the First and Third cause of Action set forth in the Notice of Hearing and Complaint...." With its motion, the Department offered nothing to demonstrate the violation alleged in the second cause of action. Accordingly, this ruling includes no findings of fact about this cause of action, and a hearing will be necessary if the Department wishes to pursue this allegation further.

3. Third Cause of Action

The third cause of action relates to the Department's assessment of regulatory fees, which are authorized by ECL Article 72, Title 10. According to the Department, the Respondent owes a total of $7,000 in regulatory fees based on an assessment of $700 per year since 1991 for ten years. The Department argues that Mr. Dimick is responsible for paying these fees because he has not reclaimed the Site. To support its position, the Department offered Mr. Lacombe's affirmation and an affidavit by Robert Schwank, who is an accountant from the Bureau of Revenue Accounting. Exhibit F is a copy of the Department's invoice dated September 12, 2000 for $7,000.

Exhibit G to the Department's motion is a set of three documents filed by Mr. Dimick concerning the assessed annual regulatory fees. The first is a document dated November 1, 1993, entitled, "Regulatory Fee Determination - 'Continued Disagreement.' " The reason provided by Mr. Dimick for the continued disagreement over the assessed fees is that he does not have a mining permit. The other two documents included with Exhibit G are copies of Mr. Dimick's letters dated May 4, 1992 and November 11, 1992. In these two letters, Mr. Dimick requested a reconsideration of the fees. In addition, Mr. Dimick stated that he objected to the determination because he no longer has a permit. Other than his objections, the Respondent offered nothing to refute the Department's assertions concerning the regulatory fee assessment.

ECL §§72-1005(1) and (3) identify who is responsible for paying regulatory fees. Section 72-1005(1) states that persons are liable for regulatory fees beginning on January 1, 1991 if they hold a permit or are subject to the mining regulations. Pursuant to §72-1005(3), anyone subject to the mining regulations must continue to pay annual regulatory fees until reclamation has been completed and approved by the Department. For affected land of an acreage equal to or less than five acres, the annual regulatory fee is $700, as provided for by ECL §72-1003(2).

The Department's General Counsel has issued several Declaratory Rulings which contradict Mr. Dimick's claim that he is not liable to pay regulatory fees because he has not had a valid mining permit since July 28, 1990. In these Declaratory Rulings, the General Counsel has determined that the only way a permittee may avoid fee liability is to reclaim the affected land and have the Department inspect and approve the reclamation. Only the Department can approve the reclamation of the mined land and thereby terminate liability for payment of regulatory fees. Since a permittee remains legally obligated to reclaim the site even after the expiration of a permit, and because a permittee remains subject to regulation until the reclamation of the affected land is complete, a permittee is, therefore, liable for regulatory fees until reclamation is complete. Finally, the Department may not waive the regulatory fees.

As determined above, the Site has not been reclaimed. Therefore, the Respondent is liable for the assessed regulatory fees, and would remain liable for additional annual fees until the site is reclaimed and approved by the Department based on the referenced Declaratory Rulings.

Although there appear to be no factual issues related to Mr. Dimick's liability for annual regulatory fees since January 1, 1991 concerning the unreclaimed Site, there is a procedural question about whether the Department's third cause of action can be considered within the context of this proceeding. Pursuant to §622.1(b), the Department's Uniform Enforcement Hearing Procedures (Part 622) do not apply to the determination of disputed environmental regulatory program fees that are assessed pursuant to ECL Article 72, although the enforcement proceedings arising out of a failure to comply with a final determination are. The former, rather than the latter, situation exists here. Therefore, the procedures outlined in 6 NYCRR §481.9 and §481.10 must be used to resolve Mr. Dimick's challenge to the Department's program fee determination.

On this record, it appears that a hearing pursuant to §681.10 has not been convened to date. For the most part, the procedures outlined in §481.10 are similar to the procedures outlined in Part 622. An important distinction, however, is that the §481.10 hearing procedures do not provide for an order without hearing as requested here pursuant to §622.12. As previously mentioned, summary judgment is considered "a drastic remedy."

Up to this point in the proceeding, no party has offered any information to suggest that the outcome concerning the third cause of action would be different if the hearing procedures outlined in §481.10 are applied. Moreover, a consolidation of the regulatory fee dispute with alleged violations of the permit and mining regulations could be considered an efficient use of very limited administrative resources. Such a consolidation, however, is contrary to regulation. The applicability provision in §622.1 expressly prohibits the use of Part 622 to resolve regulatory fee disputes. Therefore, the Commissioner can make a final determination about the disputed fees only after a hearing held pursuant to §481.10 Accordingly, I deny the Department's motion for an order without hearing with respect to the disputed regulatory fees.

Relief

As part of its motion, the Department has requested an order from the Commissioner which would: (1) assess a civil penalty of $5,000 for the violation asserted in the first cause of action, (2) require the Respondent to reclaim the Site consistent with the plan included in Exhibit D, and (3) direct the Respondent to pay regulatory fees totaling $7,000. Mr. Lacombe's affidavit provides argument in support of the requested relief. As explained above, Mr. Dimick did not respond to the Department's motion.

1. Civil Penalty

Citing ECL §71-1307(1), the Department correctly asserted that the maximum civil penalty for a violation of either ECL Article 23 or its implementing regulations, including Part 422, is $5,000. Furthermore, the Commissioner may assess an additional civil penalty of $1,000 for each day that the violation continues.

According to Mr. Lacombe's affirmation, the Department's requested civil penalty is based on two factors identified in the Department's Civil Penalty Policy. They are the "economic benefit" associated with non-compliance and the "gravity of the harm." According to the Department, the Respondent has avoided substantial costs over the last ten years by not reclaiming the Site. In addition to the avoided costs associated with the Respondent's failure to reclaim the Site, the Department argued that the Respondent's failure to pay regulatory fees over the same ten year period totaling $7,000 is an additional economic benefit enjoyed by the Respondent.

The Department contended that the Respondent may not be able to afford to pay a civil penalty greater than $5,000, particularly since unpaid regulatory fees cannot be waived. For the Department, reclamation of the Site is the primary goal of this enforcement action. The Department concluded that even though the Respondent has enjoyed a significant economic benefit from not reclaiming the Site and from not paying regulatory fees, a larger civil penalty may preclude reclamation.

Although the Department identified the "gravity of harm" as another factor relevant to its civil penalty calculation, the Department did not elaborate on this factor further. The record developed to date, however, shows that water flows from the face of the mine at some point below the original elevation of the bank. The flow of water has eroded material from the toe of the mining face. As explained above, Mr. Dimick, as the property owner and former permittee, is responsible for the reclamation of his Site consistent with the terms and conditions of his permit. The flowing water at the Site suggests that Mr. Dimick may have created this condition by mining below the water table in contravention of the terms of his mining permit (Exhibit B, Mining Condition No. 5). Such a situation, which has persisted for ten years, has the potential to contravene water quality standards. Therefore, the Commissioner may reasonably consider these circumstances to be an additional aggravating factor that would further justify the requested civil penalty.

The Department's motion relates only to the first and third causes of action alleged in the July 18, 2000 complaint. Consequently, the second cause of action is not addressed in this ruling. If the Department wants to pursue the second cause of action, a hearing will be necessary. Therefore, I reserve making a final recommendation about the civil penalty since a hearing concerning the second cause of action may identify other factors that should be considered in determining the appropriate civil penalty.

2. Reclamation

A reclamation plan was incorporated into the Respondent's permit. Subsequent to the expiration of the permit, the Department proposed an alternate reclamation plan which it presented to Mr. Dimick in a draft consent order. The alternate reclamation plan would require the placement of clean rock fill along the cut slope of the mine face. The diameter of the rocks used for fill should be at least eight inches in diameter. The slope of the rock fill should be at a ratio of 1:1¼, and the height of the rock fill should be above the highest seep or spring on the mining face. The remainder of all disturbed areas on the Site should be seeded and mulched. Mr. Trost supports the implementation of the alternate remediation plan. According to Mr. Trost, the alternate remediation plan would address the water seeping from the mining face better than the original reclamation plan.

Given the pendency of the hearing concerning the second cause of action, I reserve making a final recommendation about whether to require the Respondent to implement the Department's alternate reclamation plan.

3. Disputed Regulatory Fees

As explained above, a final determination about the disputed fees can be made only after a hearing has been held pursuant to §481.10. Therefore, I reserve making any conclusions or recommendations about the disputed regulatory fees.

Conclusions

1. The Department duly served the Respondent, Mr. Dimick, with a copy of the notice and complaint dated July 18, 2000 by certified mail, return receipt requested in a manner consistent with §622.3(a)(3).

2. Subsequently, with a cover letter dated March 1, 2001, the Department duly served the Respondent with a copy of the notice of motion and motion for order without hearing dated February 28, 2001 by certified mail, return receipt requested in a manner consistent with §622.3(a)(3).

3. Mr. Dimick violated the terms and conditions of his permit, and its approved reclamation plan by failing to reclaim the Site concomitantly with mining activities. In addition, the Respondent violated 6 NYCRR §422.3(e) by failing to reclaim the Site by July 28, 1992, which is two years after his mining permit expired. This violation has continued from July 28, 1992 to the present.

Order of Disposition

1. The First Cause of Action

The first cause of action in the July 18, 2000 complaint has been resolved, except for a recommendation about the appropriate civil penalty and reclamation. A recommendation about the civil penalty and reclamation are dependent upon the disposition of the violation alleged in the second cause of action.

2. The Second Cause of Action

In the July 18, 2000 complaint, the Department alleged that the Respondent violated 6 NYCRR §422.2(c)(3)(iii) and Mining Condition No. 8 by conducting mining activities within 25 feet of the Respondent's property line. This violation allegedly took place from July 28, 1987 to July 28, 1990. The Department did not address this charge in its motion for order without hearing. Accordingly, a hearing will be held if the Department wants to pursue this allegation further. Within 15 business days from receipt of this ruling, the Department shall advise Mr. Dimick and me about whether the Department wants to pursue the second cause of action alleged in the July 18, 2000 complaint.

3. The Third Cause of Action

Mr. Dimick disputes the Department's determination to assess regulatory fees from January 1, 1990 to January 1, 1993. According to Mr. Dimick, the reason for the disagreement is that he no longer has a mining permit. I will presume, unless expressly stated otherwise by Mr. Dimick, that he also disputes the Department's determination to assess regulatory fees from January 1, 1993 to September 12, 2000 for the same reason. To resolve this dispute, a hearing will be held pursuant to the procedures outlined in §481.10.

The first step to resolve this dispute is to schedule a prehearing conference as required by §481.10(f)(1). The purpose of the prehearing conference will be to narrow or resolve issues concerning the disputed fees, and to define and limit the scope of the remaining issues.

Within 15 business days from receipt of this ruling, Mr. Dimick and the Department shall advise me, in writing, about their availability to participate in a prehearing telephone conference. As provided by §481.10(d)(4), any party who does not respond in a timely manner, as directed above, will have waived the right to be heard.

Upon receipt of the parties' responses, I will provide written confirmation to the parties of the date and time for the conference call.

/s/
Daniel P. O'Connell
Administrative Law Judge

Date: Albany, New York
July 25, 2002

To: Charles Dimick
Chandler Road
Brushton, New York 12916

Christopher A. Lacombe, Esq.
Regional Attorney
NYS DEC Region 5
PO Box 296, Route 86
Ray Brook, New York 12977

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, First Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-9003 • FAX: (518) 402-9037
Website: http://www.dec.ny.gov/

September 30, 2002

Charles Dimick
Chandler Road
Brushton, New York 12916

Christopher A. Lacombe, Esq.
Regional Attorney
NYS DEC Region 5
Route 86, P.O. Box 296
Ray Brook, New York 12977

RE: Charles Dimick

DEC Case No.: R5-0998-91-09

Dear Messrs. Dimick and Lacombe:

As scheduled in my letter dated September 13, 2002, I initiated a telephone conference call on Friday, September 27, 2002, concerning Mr. Dimick's regulatory fee dispute. The purpose of the conference call was to fulfill the requirements outlined in 6 NYCRR §481.10(f)(1) for a pre-hearing conference to narrow or resolve issues concerning the disputed fees, and to define and limit the scope of any issues remaining for an adjudicatory hearing.

During the conference, I asked Mr. Dimick if he had any additional information that he wanted to include in the record concerning the disputed fees. Mr. Dimick said no, and stated that he has provided me with all the information that he wants in the record. Mr. Dimick explained that the Site has not been reclaimed because of the water flowing from the mine face. According to Mr. Dimick, the water is coming from the neighboring property owned by New York State. Mr. Dimick repeated the three options which would resolve the matter from his perspective. First, Mr. Dimick would reclaim the Site if the State takes care of the water flowing from its property onto his. Second, the State should buy the mining Site at fair market value. Third, the current situation is acceptable to Mr. Dimick. Therefore, if the State agrees to drop this and any future enforcement proceedings, Mr. Dimick will not object to the water on the Site.

Mr. Dimick added that he paid a $100 fee to renew his mining permit, and to date, he has not received a response from the Department about the status of his renewal application. In conclusion, Mr. Dimick said that many wells had gone dry this summer in Franklin County. Despite the very dry conditions, Mr. Dimick observed that water continued to flow from the mine face.

Mr. Lacombe said that the Department did not have any more information that it wanted to add with respect to the regulatory fee dispute. The Department wants to rely on the information presented in its papers concerning the motion for order without hearing. If a hearing is necessary, the Department requested that the hearing convene in the winter when the hunting season has concluded.

In the July 25, 2002 ruling, I reserved ruling on the Department's second cause of action because the Department did not include this cause of action in the motion for order without hearing. In addition, I did not make a recommendation about whether to grant the relief that the Department seeks. However, in his letter dated August 23, 2002, Mr. Lacombe states that from the Department's perspective, "it was not necessary to make a motion on the second cause of action in order to obtain the penalty and remedial relief requested." During the conference call, Mr. Lacombe agreed to incorporate this statement into the arguments presented in the Department's motion for order without hearing.

Based upon my review of the hearing file and the discussion during the pre-hearing conference, I find there are no issues of fact concerning the disputed regulatory fees. In addition, there are no issues involving the interpretation or application of the regulations. Accordingly, I find that an adjudicatory hearing is not necessary.

With respect to the disputed fees, I am required to file a report with the Commissioner for her review [6 NYCRR §481.10(j)(3)]. This report will also include recommendations about the Department's motion for order without hearing. Subsequently, the Commissioner will issue a final decision concerning the disputed regulatory fees [6 NYCRR §481.10(n)], and the first cause of action [6 NYCRR §622.18(b)].

Very truly yours,

/s/
Daniel P. O'Connell
Administrative Law Judge

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