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Dimick, Charles - Ruling, July 25, 2002

Ruling, July 25, 2002

STATE OF NEW YORK : 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

for Order of Ruling on Department's Motion 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)(1), 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 $500 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

  • With a letter dated August 4, 2000, Mr. Dimick (the Respondent) answered the Department's notice of hearing and complaint dated July 18, 2000.
  • 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.
  • 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.
  • 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).
  • 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.
  • 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).
  • 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.
  • 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.
  • 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.
  • 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."(2) Moreover, on a motion for summary relief, a court will accept as true the evidence put forward by the party opposing the motion.(3)

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(4) 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.(5) 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.(6) Finally, the Department may not waive the regulatory fees.(7)

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.(8) 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.(9) 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

  • 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).
  • 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).
  • 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.(10) 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

Dated: 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

1 The regulatory citation provided in the July 18, 2002 Complaint at Paragraph 4 is §422.4(3). The correct citation is §422.3(e).

2 Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974).

3 Baker v. Briarcliff School Dist., 205 A.D.2d 652, 653 (2d Dept. 1994); Matter of Johnson, ALJ Ruling, 1993 WL 1480627, *6 (Nov. 22, 1993).

4 Declaratory Ruling 72-07 (AL Blades & Sons, Inc. - 1994), Declaratory Ruling 72-08 (Philip A. Desborough - 1994), Declaratory Ruling 72-10 (Southern Cayuga Resources, Inc. - 1996), Declaratory Ruling 72-11 (John H. Newell - 1996).

5 Declaratory Ruling 72-07, p. 5.

6 Declaratory Ruling 72-10, p. 5.

7 Declaratory Ruling 72-11, p. 4.

8 Declaratory Ruling 72-08 (Philip A. Desborough - 1994).

9 Exhibit D, Schedule A.

10 Exhibit G to the Department's motion includes a copy of a "Regulatory Fee Determination 'Continued Disagreement'" form concerning Invoice No. 33745.

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