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Danny Fortune & Co., Inc. - Ruling, November 12, 1999

Ruling, November 12, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violation of Article 23 of the New York Environmental Conservation Law and Part 421 of
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

DANNY FORTUNE & CO., INC.,
PALUMBO BLOCK COMPANY, INC.,
FORTUNATO PALUMBO, and
ANTHONY PALUMBO,

Respondents.

RULING ON MOTION FOR INTERVENTION

NYSDEC Case No.
R3-1999-0909-52
11/12/99

This enforcement action was commenced by Notice of Hearing and Complaint dated September 13, 1999 alleging that the Respondents Danny Fortune & Co., Inc., Palumbo Block Company, Inc., Fortunato Palumbo and Anthony Palumbo (the "Respondents") are unlawfully mining without a permit (NYSDEC Case No. R3-19990909-52; the "Dover enforcement action") at the Dover Industrial Park site, Dover, New York. Staff allege that the Respondents excavated an area of the site pursuant to Town of Dover Planning Board approval in 1993 to construct a building referred to as "Building II". Staff assert that excavation of a two-acre area exceeded the Town approval, and further, the Respondents have not commenced building construction on the site. The Respondents own various mining interests in New York including sites in Dutchess County and Columbia County and are the owners and developers of the Dover Industrial Park.

Pursuant to 6 NYCRR §622.10(f), by motion dated October 27, 1999, the Town of Dover (the "Town") seeks to intervene in this enforcement action. This Ruling addresses the Town's motion for intervention.

Background

The Respondents have filed a motion dated October 15, 1999, seeking dismissal of the complaint, or in the alternative, an order directing expedited fact finding on the allegations that the Respondents are unlawfully mining without a permit.

By motion dated October 20, 1999, Staff seeks to consolidate the enforcement action with the Dover permit action, or to adjourn or suspend processing of the Dover permit action, pending a disposition in the enforcement action.

The Respondent Danny Fortune & Co., Inc. ("DFC"), separately has applied for a modification of its Mined Land Reclamation permit pursuant to ECL Article 23 and a Solid Waste Management Facility permit pursuant to ECL Article 27 and related permits, to construct and operate a new construction and demolition debris landfill in Dover, Dutchess County, New York (NYSDEC Case No. 3-1326-00031/00003; the "Dover permit action"). The Respondent Palumbo Block Company, Inc., separately, has applied for a Mined Land Reclamation permit pursuant to ECL Article 23 for a proposed mine in Ancram, Columbia County, New York (NYSDEC Case No. 4-1020-00035/00001; the "Ancram permit action"). The Department Staff (Regions 3 and 4) and Interveners in the Dover and Ancram permit actions have raised the issue of Applicants' "record of compliance", including the present allegations.

On October 25, 1999 I set a schedule for the Ancram and Dover permit action interveners to file petitions for intervention in the present enforcement action, and for the Respondents and Staff to respond to any such petitions. I further stated that any person that successfully intervenes in the Dover enforcement action will have an opportunity to be heard on Applicant's and Staff's motions before I rule upon those motions.

Only one petition has been received. Pursuant to 6 NYCRR §622.10(f), by motion dated October 27, 1999, the Town of Dover seeks to intervene in this enforcement action. Responses to intervention motions were to be filed by November 5, 1999. By affirmation and supporting papers dated November 4, 1999, the Respondent opposes the Town of Dover's motion on several grounds.

Department Staff filed a letter supporting the Town's motion on November 9, 1999. The letter advises that Central Office Assistant Counsel Dominick R. Cordisco has been substituted for Assistant Regional Attorney Katherine Hudson in this enforcement action. Ms. Hudson is no longer employed by the Department; presumably the substitution of counsel resulted in the untimely filing.

The Town's Motion to Intervene

Staff assert that the Town motion should be granted because the extent of the Town's approval for the Respondent's site plan is an essential factual element in this enforcement action.

Pursuant to the Department's enforcement hearing regulations, a motion for intervention will be granted only if the petitioner has demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested and that those rights cannot be adequately represented by the parties to the hearing. §622.10(f)(3).

One basis of the Respondents' opposition is the Respondents' assertion that the Town has not met this standard. That is, the Respondents assert that the Town has failed to demonstrate that the Town has any private rights that would be adversely affected by the relief requested in the enforcement action or that any such rights that may exist can not be represented adequately by the parties to the proceeding.

The Respondents are correct. The Town has failed to comply with 6 NYCRR §622.10(f)(3) because it has not asserted any private right that would be affected by the enforcement action. The Town of Dover's motion for intervention is denied. At the same time, this ruling does not preclude the Town's participation in the enforcement action. Public participation in this enforcement action is available to the Town through continued interaction with NYSDEC Staff. The Town may pursue its objectives by volunteering witnesses for Staff's case, providing legal advice or opinion regarding the Town's zoning law and Planning Board actions or otherwise assist in Staff's presentation of the case.

Since I have denied the intervention motion on this basis, I do not reach the Respondents' other arguments in opposition to the motion. Following my issuance of this ruling, I will rule upon the Respondents' and Staff's pending motions.

_____________/s/_____________
Administrative Law Judge

Dated: Albany, New York
November 12, 1999

To: L. Zeisel, Esq.
D. Cordisco, Esq.
S. LaFrance, Esq., and G. , Esq.

cc: Palumbo Block Co., Inc., Ancram Permit Action
Distribution List
Danny Fortune & Co., Inc., Dover Permit Action
Distribution List

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