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Fitch, Doris - Decision, November 27, 1995

Decision, November 27, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Dispute of the Environmental Conservation Law Article 72, Title 10,
Mined Land Reclamation Program Fees and Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York, Part 480 et seq. Program Fees

- by -

DORIS FITCH

Boonville, Oneida County

Appellant

Permit #604-3-30-0538

DECISION

November 27, 1995

Decision of the Commissioner

The attached Hearing Report (the "Report") of Administrative Law Judge ("ALJ") John H. Owen, including its Findings of Fact, Conclusions of Law and Recommendations, in the matter of a regulatory program fee paid to the Department of Environmental Conservation pursuant to Article 72 of the Environmental Conservation Law ("ECL") and 6 NYCRR Part 481, et seq. by Doris Fitch, Boonville, Oneida County ("permittee") is hereby adopted as my Decision in this matter subject to my comments below.

As stated at the opening of the Report, a mine operator who disputes the fee may request a hearing, as was held here. Upon the record before me, no facts are in dispute nor is there any issue of law. Doris Fitch is a permit holder who has not yet completed reclamation. Pursuant to ECL 72-1005(3) a permittee is liable for payment of program fees until reclamation has been completed and approved by the department. Payment must be made "within 30 days of the first invoice, unless otherwise directed by the department" (6 NYCRR 481.3(a) emphasis added).

Upon due consideration of the record in this case, and the time taken to hold a hearing after it was first requested, I am directing Staff to assess the applicable fees consistent with this Decision. No interest or penalties will be required. Failure to pay the fees as directed by this Decision will subject the Permittee to liability for interest and penalties accruing from the date payment is due under this Decision. Staff shall promptly confer with applicant as to completion of reclamation of the site.

For the New York State Department
of Environmental Conservation
_____________/s/_____________
Michael D. Zagata, Commissioner

Dated: November 27, 1995
Albany, New York

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Dispute of the Environmental Conservation Article 72, Title 10,
Mined Land Reclamation Program Fees and Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York Part 480 et. seq.

Program Fees

- by -

DORIS FITCH
Boonville, Oneida County

Appellant

Permit #604-3-30-0538

HEARING REPORT

- by -

____________/s/____________
John H. Owen
Administrative Law Judge

Proceedings

The Environmental Conservation Law ("ECL") imposes upon mine operators annual regulatory program fees and the Department of Environmental Conservation ("Department" or "DEC") calculates the fees and seeks to collect them. A mine operator who disputes either the applicability or the calculation of the fees and cannot be convinced that the fees apply and are properly calculated may request a hearing. When a hearing is requested a proceeding such as this arises.

In this dispute (in which hearing procedures are governed by 6 NYCRR 481.10) Administrative Law Judge ("ALJ") John H. Owen sent a letter-notice on August 8, 1995 by Certified Mail - Return Receipt Requested and by First Class Mail to the appellant, Doris Fitch, at 101 Hutton Heights, Boonville, New York 13309 (which was delivered August 10, 1995 as shown upon the returned certified mail "green card") advising the appellant that a pre-hearing conference would be held at the Department's Region 6 Headquarters, 317 Washington Street, Watertown, New York 13601 on August 30, 1995 at 10:00 AM and that, if necessary, an adjudicatory hearing would follow immediately.

The Region 6 Staff was represented by Assistant Regional Attorney Randall C. Young, Esq. The appellant appeared without counsel but with her son, Terry Fitch, in whose favor the appellant had executed and filed with the ALJ a written authorization allowing her son to represent her.

At the pre-hearing conference the issues were discussed at length and at its conclusion the ALJ advised the parties of the one issue to which testimony and other evidence in the adjudicatory session would be limited and the ALJ summarized for the record the action taken at the conference and incorporated into the record any admissions, stipulations or agreements made by the parties.

The sole issue for adjudication as found by the ALJ was whether the appellant was afforded an opportunity for hearing within reasonable time, as required by Section 301(1) of the State Administrative Procedure Act ("SAPA").

The hearing proceeded on this single issue on August 30, 1995 immediately following the pre-hearing conference and was concluded that same day. The Appellant called as witnesses herself and her son, Terry Fitch; the staff called Region 6 Mined Land Reclamation Specialist Jerome E. Zaykoski; some seven (7) exhibits were received in evidence; and the record closed upon receipt of the last of the parties' post-hearing submissions on September 11, 1995.

Discussion

The record shows (Exhibit 3) that the appellant was billed for the program fees first in 1991 at $700 per year, plus any applicable interest and penalties. Appellant claimed that she requested "an immediate hearing" in the Fall of 1991 and again in the Fall of 1994 and that she has been prejudiced particularly in that "fees...have ballooned out of proportion" (Appellant's Post-Hearing Submissions).

At the pre-hearing conference and at the hearing appellant seemed to be contending that she was prejudiced in that if she had learned as a result of her first request for a hearing what she learned at the pre-hearing conference, the matter would have been resolved at that earlier time. More specifically, the appellant would have been disabused of the notion that at the point when she began extracting less than the threshold amounts of material (provided at ECL Article 23, Section 23-2711(1)) she would owe no further fees, even though reclamation had not been completed and approved by the Department Staff and her Reclamation Bond or other security had not been returned to her. Appellant claims that she was made aware only on August 30, 1995 that reclamation must first be properly carried out, to the satisfaction of Department Staff, and the fees with any interest and penalties paid and the security released, and then only might the appellant thereafter take less than the threshold amounts without liability for further fees.

The appellant also claimed that the fees imposed are unfair, especially since the appellant realized no profit during the periods for which the fees were assessed.

As to when the appellant first requested a hearing, Exhibit 3 at the hearing (a group of papers entitled "Regulatory Fee Reclamation Request Determination") shows that in the Fall of 1991 forms and fee bills were sent by the Department to the appellant, that as part of the forms there was space for the mine operator to write in a response to the Department's claim, and that here there was a response written out by appellant's daughter-in-law, at appellant's request and authorization. This writing as returned to the Department states, among other things: "I wish to challenge the DEC..." and "...We would like to come to Albany and meet with someone from the DEC at their earliest convenience." Then there is a letter in the Department's file dated December 10, 1992 from the appellant to the Department (and so received) stating: "We have not paid the 91 or 92 fee because we sent a registered letter to the Commissioner requesting an immediate hearing on this issue..." (Exhibit 4). Next there is a Department letter to the appellant dated November 29, 1993 demanding the fees, upon which appellant enclosed and returned a hand-written note:

"We have called and talked to you in regards to this matter, under protest since 1991 it is our intention to...receive an audience with [then] Commissioner Jorling" (Exhibit 6)

Lastly there is a letter in the Department's file which was sent to the appellant under date of May 16, 1994 and returned by the appellant with a handwritten note which includes: "...No hearing with the Commissioner was ever granted..."

Thus with the appellant having first requested a hearing in the fall of 1991 and having been afforded one on August 30, 1995, the delay is approximately 3 years, 10 months.

The Staff claims that the appellant was advised by letter to her son Terry Fitch dated November 22, 1991 from Steven M. Potter, Mined Land Reclamation Specialist II (Exhibit 7 admittedly received by the appellant) both that fee increases are matters under Article 72 of the ECL and should be addressed to the State Legislature and that in order to stop the running up of fees the appellant must first have reclamation approved by Department Staff. This letter also shows that the appellant was advised that, after reclamation was approved, she could from that point on extract less than the threshold amounts without a DEC permit and if she paid the fees up to that point (with any interest and penalties due) she could do so under protest and proceed with her appeal.

Staff also contends that the appellant bears the burden of proof that she is entitled to the relief she seeks, citing 6 NYCRR 481.10(k)(5). Where Staff claims the fees are properly calculated and due, appellant must make some showing that this is not true, in whole or part.

An important factor in determining whether appellant was afforded a reasonably prompt hearing is whether she is actually prejudiced by the delay. Cortland Nursing Home v. Axelrod, 66 NY2d 169 at page 178.

Most often, it seems, prejudice results where the delay makes it more difficult to mount a defense, for example, where over time necessary witnesses have become unavailable. This is not the case here.

Appellant points out the passage of time but does not show how this is relevant or prejudiced her in any way. Indeed in the Cortland case it was held that:

"The passage of time, standing alone, does not...serve as a basis for judicial intervention..." (page 177)

Findings of Fact

  1. The appellant was billed by Staff beginning in 1991 at the rate of $700 per year, plus any applicable interest and penalties.
  2. The Appellant has not paid any of the program fees despite due demands.
  3. In words or substance the appellant requested a hearing first in the Fall of 1991 and several time thereafter.
  4. The appellant was afforded a hearing on August 30, 1995.
  5. The delay in affording the appellant a hearing was approximately 3 years, 10 months.
  6. The appellant has not suffered any legally cognizable prejudice, to any defense she might have or wish to offer, or otherwise.

Conclusions of Law

  1. Section 301(1) of the State Administrative Procedure Act has been complied with.
  2. The appellant is indebted to the Department of Environmental Conservation for the program fees together with interest and penalties billed to her.

Recommendation

1. The Commissioner should issue a decision holding that appellant Doris Fitch, pursuant to ECL 72-1005(3) is liable for payment of program fees together with the interest and penalties thereon until reclamation has been completed and approved by the Department.

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