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Getty Terminals Corp., Inc. (Kingston) - Ruling, January 20, 1995

Ruling, January 20, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Appeal from Special License Conditions of a Major Oil Storage Facility License issued pursuant to
Navigation Law Article 12 (Oil Spill Prevention, Control and Compensation),
Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York,
Part 30 (Oil Spill Prevention and Control - Licensing of Major Facilities), and
Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,
Part 610 (Certification of Onshore Major Facilities), by KINGSTON OIL SUPPLY COMPANY
(Catskill Terminal), MOSF #4-1360 and GETTY TERMINALS CORP., INC. (City of Rensselaer),
MOSF #4-1560 Appellants.

Commissioner Ruling on Motions for ALJ's Recusal and Reconsideration

for the December 7, 1994 Decision

This ruling is in response to motions made by Getty Terminals Corp. and Kingston Oil Supply (collectively referred to "Getty" herein), in the above-captioned matter for: 1) recusal of Administrative Law Judge ("ALJ") Kevin J. Casutto and 2) for reconsideration and/or reargument. Both motions are denied and the matter concerning the status of the new major oil storage ("MOSF") licenses that the Department's Region 4 Staff (the "Staff") sent to Getty shall proceed with ALJ Casutto presiding.

Background

On June 14-16, 1994, ALJ Casutto presided over a hearing to adjudicate the appeals of Getty and Kingston regarding the special license conditions for their Rensselaer and Catskill MOSFs. The conditions at issue related to licenses that were for the time period April 1, 1993 through March 31, 1994. These licenses included requirements for secondary containment that DEC had not incorporated in previous licenses.

After the close of the record, by letter dated August 9, 1994, the Staff notified the ALJ that a license renewal covering the period April 1, 1994 through March 31, 1999 had been issued to the Appellants.

Recent amendments to the enabling statute, Navigation Law 174(2) authorized extending the licensing period from one to five years. The Staff maintained that this action was taken mistakenly and that it had "withdrawn" the licenses.

ALJ Casutto prepared a hearing report which addressed the disputes for the conditions attached to the 1993-1994 licenses that had given rise to the appeals. The Commissioner rendered a decision dated December 7, 1994 that confirmed the findings of the ALJ which concluded that the Staff properly applied the conditions to these two facilities, thus denying the appeals. As the parties are not in agreement over the status of the new licenses, the Commissioner directed the ALJ to establish a schedule for submission of written arguments on this question. In addition, the Commissioner ruled that until the ALJ issues a recommendation on this matter, the implementation of the December 7, 1994 decision is stayed.

By letter dated December 22, 1994, ALJ Casutto advised the parties that briefs regarding the issue of the new licenses were due on January 12, 1995.

Recusal

Section 624.8(b)(2)(iii) of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR") provides that any party may file a motion for recusal on the basis of personal bias or other good cause. In its motion, Getty did not provide any basis to find personal bias on behalf of the ALJ nor other good cause for recusal. A review of the hearing record reveals that ALJ Casutto carefully weighed the evidence presented and was objective in his analysis. Getty relies on various grounds for its request for recusal that are addressed below.

Getty claims that ALJ Casutto is biased because he already recommended that Getty's position on the new licenses be rejected and insisted on deciding the case based on the issues raised with respect to the terms of the 1993-1994 licenses, which by their very terms had expired.

However, a review of the hearing report shows that ALJ Casutto did not reject Getty's argument concerning the new licenses on the merits. Rather, he determined that the status of those licenses would not be addressed by him in the context of the hearing report because he did not view this question as properly before him. In fact, at the time that ALJ Casutto was preparing the hearing report, the new licenses had not been submitted to the record and ALJ Casutto was not even aware of their contents.

Given the ALJ's view that the status of the new licenses was not to be addressed, it follows that the disputes concerning the licenses that had given rise to the appeals were not moot. The regulated activities at both facilities were on-going and, until it was established that the new licenses were valid, the facilities would operate under the terms of the 1993-1994 licenses even beyond the expiration date [SAPA 401(2)]. The Commissioner essentially affirmed this view although, in recognition of the dispute over the status of the new licenses, Getty was not required to implement the terms of the 1993-1994 license immediately. The legal effect of the Commissioner's Decision is to allow operation under the terms of the 1992-1993 licenses while the dispute is pending.

Getty also argues that the ALJ's refusal to entertain its offer of settlement regarding special license condition 3(j) evidences bias. The record shows that the settlement offer was not an acceptable resolution of the issue to the Staff. An ALJ has no authority to settle a case over the objections of one of the parties. While there may have been no harm in including the settlement offer in the record, there was no purpose in it either. The ALJ's decision to exclude the settlement offer from the record evidences his concern for efficiency, not bias.

Getty requested that the ALJ identify the date on which he submitted his hearing report, the document itself being undated. In its view, his refusal to do so is another instance of bias. It is the practice of the Office of Hearings not to date its hearing reports. ALJ Casutto's decision to follow established office practice is hardly evidence of bias.

Finally, Getty's claim that ALJ Casutto's bias is apparent because he would not grant a week's extension prior to setting a schedule is unfounded. The ALJ's provision of four weeks for submission of briefs by the parties regarding the new licenses is reasonable and certainly not evidence of bias. In fact, his ruling rejected a Staff request for an even shorter briefing schedule.

Reconsideration/Reargument

Although there is no specific provision in 6 NYCRR Part 624 for motions for reconsideration/reargument of a final decision of the Commissioner, the Department has inherent authority to entertain such applications. See, In the Matter of the Application of Hyland Associates on Motion for Reconsideration (Nov. 18, 1993). CPLR 2221 provides for a motion for reargument when the court overlooked or misapprehended the facts or law and the same criteria are sensibly applied to administrative decisionmaking.

Getty moves for reconsideration and reargument of the appeals on the grounds that the ALJ failed to properly present the Appellants' evidence and because DEC Region 4 engineers interpreted the regulatory requirements in a disparate manner. However, Getty does not identify any component of its case which was not properly presented by the ALJ or which was misunderstood by the decisionmaker. It also misperceives the basis for the Decision. The interpretation of regulatory requirements by the Region 4 engineers was not a factor in the denial of the appeals, rather it was Getty's failure to meet its burden to show that the conditions imposed by Staff were unnecessary in order to meet the requirements of 6 NYCRR 613.3(c)(6) and the natural clay deposits were adequate to meet these requirements, i.e. that the natural liners would prevent spills from permeating, draining, infiltrating or otherwise escaping to ground and surface waters before cleanup occurs.

Conclusion

There is no merit to Getty's motion to recuse the ALJ or to grant reconsideration or reargument on the questions that were decided. These motions are denied.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling to be signed and issued and has filed the same with all documents relating thereto in its office in the County of Albany, New York this 20th day of January, 1995.

/s/

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
LANGDON MARSH, COMMISSIONER

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