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Dolomite Products Co., Inc. - Ruling, June 16, 2000

Ruling, June 16, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of
Alleged Violations of Articles 23 and 71 of the Environmental Conservation Law,

- by -

DOLOMITE PRODUCTS COMPANY, INC.,

Respondent

RULING:

  1. Department Staff's Motion for Order without Hearing
  2. Respondent's Motion to Dismiss
  3. Respondent's request that its permit be renewed
  4. Respondent's Notice for Discovery and Inspection and DEC Staff's Notice of Motion for Protective Order

DEC Case No. R8-20000413-30

Procedural History

The above captioned matter was commenced by DEC Staff by a Notice of Motion for Order Without Hearing dated April 20, 2000. This was contested by the Respondent in an Affirmation in Opposition to the Motion for Order Without Hearing dated May 23, 2000. Contained within the Respondent's Affirmation were requests that DEC Staff's Motion should be denied, that the DEC Staff's enforcement action should be dismissed, and that the Respondent's permit should be renewed.

Also on May 23, 2000, the Respondent made motion for Discovery and Inspection requesting various documents from DEC Staff. On June 2, 2000, DEC Staff filed Notice of Motion for Protective Order. On June 12, 2000, Respondent's Attorney filed an Affirmation in Opposition to Motion for Protective Order requesting that Dolomite's May 23, 2000 Motion for Discovery be honored.

On June 2, 2000, I faxed a letter to both DEC Staff and Respondent's attorneys requesting the answers to seven questions. This was done in an effort to determine whether there was a substantial dispute of facts sufficient to require a hearing on the Motion for Order without Hearing. Responses were received on June 12, 2000.

Summary of Parties' Positions

DEC Staff contends that Dolomite needed but never possessed a valid permit to mine at its quarry in Walworth below an elevation of 455' above sea level. Further, that Dolomite did mine an area of approximately 17 acres below 455' and thus violated §23-2713(a) and 71-1305 of the Environmental Conservation Law and regulations promulgated thereunder.

Dolomite does not dispute that mining has occurred below 455' but asserts that no violation occurred. Dolomite asserts that its 1993 mining permit authorized excavations below 455' (paragraph 9 of Dolomite's May 23, 2000 Affirmation). Further, Dolomite asserts that it has had the authorization to continue mining below 455' since "DEC's inception of jurisdiction over the mining operation in 1975"(paragraph 12 of the June 12, 2000 Affirmation) and that; Dolomite's "1977 Mined Land Use Plan and the 1977 mining permit thereafter renewed" authorized mining below 455' (paragraph 8 of the June 12, 2000 Affirmation).

Thus, the defense raised by Dolomite involves documents and evidence dating back to 1975.

Background

It is important to note in addition to this enforcement action brought under 6 NYCRR 622, there is a second, related administrative proceeding involving the same parties that relates to a proposed permit modification (brought pursuant to 6 NYCRR 624) at the same site (DEC Project No. 8-5444-00001/00001). The permit modification controversy has also been assigned to me for adjudication. At the request of the applicant, I have ruled that this permit modification matter will not proceed at this time.

In addition, there is an ongoing proceeding in Supreme Court, Wayne County, before Acting Supreme Court Justice Dennis Kehoe regarding both the enforcement and permit modification issues. The court case was commenced by the Respondent. Oral arguments were heard on May 22, 2000 at which time the court has refused to grant temporary injunctive relief. Justice Kehoe has reserved judgment on the matter and has yet to rule. Justice Kehoe's ruling may affect this administrative proceeding, however, since there is no impediment to proceeding, this enforcement case will progress.

Discussion and Rulings

1. DEC Staff's Motion for Order without Hearing

The standard for whether a contested Motion for Order without Hearing should be granted is found at 6 NYCRR 612.12(c) which states that such motion will only be granted "if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting of summary judgment under the CPLR in favor of any party." CPLR §3212 states that a motion "shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

In this case, DEC Staff asserts through their submissions that Dolomite has violated the terms of its mining permit by excavating below the elevation of 455'. Specifically, DEC Staff allege that Dolomite's mining permit did not allow Dolomite to conduct activities below 455'. Dolomite has contended that its excavations were, in fact, permitted. Dolomite asserts that the 1993 permit specifically allows mining below 455' and alternatively, that there never has been any restriction on depth stated in any permit for the Walworth Quarry. Based upon the papers submitted there is not enough information to determine if either the DEC Staff's position or that of Dolomite is meritorious. This factual dispute is sufficient to require a hearing.

DEC Staff's Motion for an Order without Hearing is denied. The issue of whether Dolomite had a valid mining permit to undertake mining below 455' is a substantive dispute of fact sufficient to require a hearing. There may be other disputes of fact and these will need to be identified at a pre-hearing conference.

2. Dolomite's Motion to Dismiss

Dolomite has requested in its Affirmation in Opposition to Motion for Order Without Hearing that the enforcement action against it be dismissed. However, as explained above, the record in this matter is not sufficiently developed to determine whether any of the charges alleged should be dismissed. In other words, the Parties dispute the facts. Indeed, Respondent seems to admit as much in its June 12, 2000 response to my questions in which it makes repeated statements that a hearing is needed and no mention that the enforcement action should be dismissed.

Therefore, I deny the Respondent's motion without prejudice. At the conclusion of the hearing, the Respondent may renew its motion.

3. Dolomite's request for a Permit Renewal

In its Prayer for Relief, Dolomite requests that its permit be renewed "to allow excavation of the lower lifts at the Walworth Quarry below elevation 455." As explained, this is an enforcement hearing pursuant to 6 NYCRR 622 and the renewal of the permit is not at issue here. Therefore, this motion is denied.

4. Dolomite's Notice for Discovery and Inspection and DEC Staff's Notice of Motion for Protective Order.

Dolomite makes seven specific requests for discovery which are opposed in part or in sum by DEC Staff. Each request is dealt with separately below.

  1. Dolomite seeks all documents and records possessed by DEC's Division of Mineral Resources relating to the Walworth Quarry. Since the enforcement action is premised on DEC Staff's contention that Dolomite never possessed a permit to mine below 455' and Dolomite contends that there was never a restriction on mine depth in any permit, these records are material and necessary to Dolomite's defense. Therefore, DEC Staff must comply with this discovery request.
  2. Dolomite seeks all documents and records possessed by DEC's Division of Environmental Permits, and all predecessors, including but not limited to the Division of Regulatory Affairs and the Division of Regulatory Services relating to the Walworth Quarry. Similar to reasoning in #1 above, DEC Staff must comply with this discovery request.
  3. Dolomite seeks all documents and records possessed by DEC's Division of Legal Affairs relating to the Walworth Quarry. This discovery request must also be complied with, however, DEC Staff may withhold any document or record entitled to protection under CPLR §3101.
  4. Dolomite seeks all documents and records possessed by all other DEC Divisions, Offices or Bureaus of DEC relating to the Walworth Quarry. Unlike the Divisions of Mineral Resources, Environmental Affairs and Legal Affairs, which have had regular dealings with Dolomite on issues relating to its mining permit, which is at issue here, it is difficult to understand what material and relevant information could be obtained by requiring a search of the files of the DEC offices dealing with Air Resources, Environmental Remediation, Fish and Wildlife, Forest Protection and Fire Management, Hearing and Mediation Services, Management Information Services, Lands and Forests, Legislative Affairs, etc. Similarly, it is difficult to understand what material and relevant information could be obtained in the regional offices across the state from Long Island, New York City, the Adirondacks and other places far removed from Dolomite's quarry.

Accordingly, DEC Staff's Motion for Protective Order is partially granted. This request for discovery should be limited. Only DEC's Region 8 files should be the subject of this discovery request, since this is the region where Dolomite's quarry is located and where there may be a possibility of locating material and relevant information in files maintained by DEC Staff that are not employed by the Divisions of Mineral Resources, Regulatory Affairs and Legal Affairs.

Dolomite seeks all technical, policy, enforcement or other guidances promulgated and/or followed by DEC from 1975 through the present relating to the Mined Land Reclamation Law, regulations promulgated thereunder and DEC's enforcement of the same. Some of the guidance memos sought by Dolomite may be material and relevant to this matter including the Technical Guidance Memoranda and Enforcement Guidance Memoranda. To the extent that such other guidance exists, it too should be provided pursuant to Dolomite's discovery request. For the purposes of this request, the term guidance shall mean guidance memoranda and similar documents of general applicability which are relied upon by department personnel for implementation of the Mined Land Reclamation Law, and rules and regulations promulgated pursuant thereto, and documents that provide guidance to the general public in complying with the requirements of the Mined Land Reclamation Law.

However, it is difficult to see how DEC's enforcement in other mining cases affects the dispute here, namely "did Dolomite have a permit to mine below 455'?". This dispute is unrelated to the information sought by Dolomite regarding enforcement actions undertaken pursuant to the Mined Land Reclamation Law. Accordingly, this part of the discovery request is denied.

  1. Dolomite seeks all technical, policy, enforcement or other guidances promulgated and/or followed by DEC from 1975 through the present relating to the State Environmental Quality Review Act, regulations promulgated thereunder. DEC Staff objects to this request stating that there is no apparent SEQRA issue in this enforcement action. Dolomite responds that SEQRA is central to Dolomite's defense and documents in DEC's possession could be critical. However, I find no mention of a SEQRA defense in any of Dolomite's submissions regarding this enforcement action. This discovery request is denied.
  2. Dolomite seeks all technical, policy, enforcement or other guidances promulgated and/or followed by DEC from 1975 through the present relating to the Uniform Procedures Act and regulations promulgated thereunder. Similar to #6 above, DEC Staff have objected and Dolomite has asserted the importance of these records. Again, I find no mention of a UPA defense in Dolomite's submissions, This discovery request is denied.

Conclusion

I will contact the parties to this enforcement action regarding the scheduling of the hearing.

_____________/s/_____________
P. Nicholas Garlick
Administrative Law Judge

Dated: June 16, 2000
Albany, New York

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