Dolomite Products Co., Inc. - Commissioner Ruling, July 7, 2000
Commissioner Ruling, July 7, 2000
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233
In the Matter
- of -
Alleged Violations of Title 27 of Article 23 and Title 13 of Article 71 of
the Environmental Conservation Law,
- by -
DOLOMITE PRODUCTS COMPANY, INC.
DEC Case No. R8-20000413-30
RULING ON MOTION FOR LEAVE TO APPEAL
July 7, 2000
This enforcement case was commenced by DEC Staff's filing of a Notice of Motion for Order Without Hearing dated April 20, 2000. This was opposed by the Respondent's counsel in an Affirmation in Opposition to the Motion for Order Without Hearing dated May 23, 2000. On the same date, the Respondent's counsel served a Notice for Discovery and Inspection. In response, DEC Staff filed a Motion for a Protective Order. On June 2, 2000, Administrative Law Judge (ALJ) P. Nicholas Garlick sent a letter to the parties requesting additional information. The responses to these questions were received from the parties on June 12, 2000. On June 16, 2000, ALJ Garlick issued a ruling denying DEC's Staff's Motion for an Order Without Hearing, denying Respondent's Motion to Dismiss, and granting in part and denying in part the Respondent's Notice for Discovery and Inspection and DEC Staff's Motion for Protective Order. On June 21, 2000, the Respondent's counsel filed Motion for Leave to Appeal ALJ Garlick's June 16, 2000 Ruling. This Motion was opposed by DEC Staff in a June 26, 2000 Affirmation in Opposition to Motion for Leave to Appeal. Respondent's counsel responded to DEC Staff's June 26, 2000 Affirmation in a letter dated June 29, 2000. A hearing in this enforcement action is scheduled to commence on July 11, 2000.
I have reviewed all of the above referenced documents and deny the Motion for Leave to Appeal. However, even if leave were to be granted and the appeal were to be considered on its merits, the appeal would be denied for reasons more fully discussed below.
With respect to the Respondent's appeal of ALJ Garlick's denial of the Respondent's Motion to Dismiss, I concur with ALJ Garlick's ruling because upon review of the documents in this case I find there exists a substantive dispute of facts sufficient to require a fact-finding hearing. Specifically, did the Respondent have a DEC permit that allowed it to conduct mining operations below 455' above sea level at the Respondent's Walworth Quarry.
With respect to the Respondent's appeal of ALJ Garlick's limiting certain discovery requests made by the Respondent, I similarly concur with ALJ Garlick based upon the analysis below.
ALJ Garlick ruled that the Respondent was entitled to discover all records, wherever maintained, in the possession of the DEC Divisions of Mineral Resources, Environmental Permits and Legal Affairs relating to the Respondent's quarry located in Walworth, New York, the site of the alleged violations. In addition to this information, the Respondent also sought all documents and records possessed by any other Division, Offices or Bureaus of DEC relating to Respondent's Walworth Quarry. Pursuant to a motion by DEC Staff, ALJ Garlick limited this discovery request to documents and records in the possession of other DEC divisions, offices and bureaus located in DEC Region 8, the region in which the Walworth quarry is located. Respondent appeals this decision and relies on alleged conversations with Gregory Sovas, Director of the Division of Mineral Resources, and purported statements by Mr. Sovas that he had reviewed documents relating this case. However, ALJ Garlick ruled that all documents relating to this matter in the possession of Mr. Sovas and his entire staff are discoverable by the Respondent. The Respondent continues in its appeal that documents which are useful to the Mined Land Reclamation Law (MLRL) permittees are often found in the files maintained by other divisions and bureaus of the Department.
Even assuming arguendo that this statement is true, the Respondent fails to proffer how documents useful to the permittees would be material and relevant to the Respondent's defense (which is the CPLR standard for disclosure) in this enforcement matter.
Further, Respondent's counsel in her June 29, 2000 letter states that while reviewing documents provided to her by DEC Staff pursuant to ALJ Garlick's ruling, she has discovered evidence that DEC's Central Office has been involved in this matter. Citing four e-mail communications, she claims that the Respondent is "entitled to disclosure of the files maintained by Central Office with respect to the Walworth Quarry." This ignores the limited nature of the controversy in this enforcement case. This case deals only with the Respondent's legal authority to conduct mining activity below 455'. The fact that DEC Staff in Region 8 contacted the Wetlands Program Manager in Central Office on some aspect of the Walworth Quarry is irrelevant in this matter and does not promote the possibility that material and relevant documents contained in files of DEC's Central Office have not already been disclosed.
Next, the Respondent appeals ALJ Garlick's ruling on the Respondent's request that DEC disclose all technical, policy, enforcement or other guidance promulgated and/or followed by DEC from 1975 through the present relating to the Mined Land Reclamation Law, the regulations promulgated thereunder and DEC's enforcement of same.
ALJ Garlick ruled that the Respondent is entitled to discover all guidance sought and clarified the definition of guidance for the purposes of this request. ALJ Garlick did deny discovery by the Respondent of all information regarding DEC's enforcement against other parties under the MLRL. In its appeal, the Respondent states over the past 25 years administering the MLRL, the Department's treatment of original and renewal applications has not remained static. Rather it has evolved over the quarter of the century to the program that exists today. It cannot seriously be contended that in determining the mineral reserves which were permitted to be mined when Dolomite's Walworth Quarry was approved by the Department in 1975, the review should be limited solely to documents submitted years later on renewal applications.
ALJ Garlick has, however, ruled that the Respondent should have access to these guidance and I agree. Plainly speaking, it is difficult at times to understand which aspects of ALJ Garlick's ruling Respondent is appealing. Here, the ALJ appears to have granted the Respondent access to the documents it now seeks in its appeal.
Finally, the Respondent sought to discover all technical, policy, enforcement or other guidance promulgated and/or followed by DEC from 1975 through the present relating to the State Environmental Quality Review Act (SEQRA) and the Uniform Procedures Act (UPA) and/or the regulations promulgated thereunder. ALJ Garlick's ruling denied these discovery requests on the basis that the Respondent failed to mention any defense based on either of these Statutes. Respondent correctly points out that paragraphs 67 and 68 of its May 23, 2000 Affirmation in Opposition to Staff's Motion for an Order Without Hearing does mention these Acts. These paragraphs read in their entirety.
67. The Department's Motion is barred by the provisions of the State Environmental Quality Review Act.
68. The Department's motion is barred by the provisions of the Uniform Procedures Act.
These lone, conclusory statements of law, without any explanation of how these statutes bar the present enforcement action, fail to establish that the full disclosure of the documents sought by the Respondent through discovery could be material and necessary in the defense of this action. Respondent counsel's claim that the November 30, 1992 Memorandum of Understanding between DEC's Division of Mineral Resources and Division of Regulatory Affairs (since renamed Division of Environmental Permits) proves otherwise, is unfounded.
As stated above, Respondent's Motion for Leave to Appeal is denied. However, even if this appeal were to be heard on the merits, for the above stated reasons, ALJ Garlick's June 16, 2000 Ruling would be affirmed in its entirety.
For the New York State Department
of Environmental Conservation
By: John P. Cahill, Commissioner
Dated: July 7, 2000
Albany, New York