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Graham, Bernard - Summary Hearing Report, July 22, 1993

Summary Hearing Report, July 22, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

Alleged Violations of Environmental Conservation Law ("ECL")
Article 9 (Lands and Forests), Article 15 (Water Resources), Article 23 (Mineral Resources),
Article 24 (Freshwater Wetlands), and Article 27
(Collection, Treatment and Disposal of Refuse and Other Solid Waste) and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")
Part 360 (Solid Waste Management Facilities)

- by -

Bernard C. Graham, Sr.
and
Graham Construction and Maintenance Corporation
Route 37
Watertown
New York 13601

DEC File Number R6-1041-90-11

SUMMARY HEARING REPORT

For the New York State Department
of Environmental Conservation
_____________/s/_____________
By: Robert P. O'Connor
Administrative Law Judge

Dated: July 22, 1993

PROCEEDINGS

On August 6, 1992, the New York State Department of Environmental Conservation (the "Department" or "DEC"), through its Region 6 office, located at 317 Washington Street, Watertown, New York 13601, personally served two Notices of Hearing and two Complaints upon Bernard Graham at his office, Route 37, Watertown, New York 13601. The Complaints were against named Respondents Bernard C. Graham, Sr. and Graham Construction and Maintenance Corporation, of which Mr. Graham is President, both at the Route 37, Watertown, New York address. The Notices and Complaints called for the Respondents to appear at an administrative enforcement hearing in the Department's Region 6 Watertown office on September 2, 1992. On August 20, 1992, Respondents requested an adjournment of the hearing and on August 24, 1992, Respondent submitted an Answer to the charges in the Complaint. On September 10, 1992, the Department Staff amended the Complaint to clarify several of the allegations.

Subsequently, subject to adjournments duly taken, the hearing was commenced on September 30, 1992 in the Department's Region 6 office in Watertown, New York before Administrative Law Judge ("ALJ") Robert P. O'Connor. The hearing was continued in the same location on October 1, 1992.

Bernard C. Graham, Sr. was represented by Sanders D. Heller, Esq., 23 Main Street, P.O. Box 128, Gouverneur, New York.

Graham Construction and Maintenance Corporation was represented by George P. McAloon, Esq., 2 Bethune Street, Alexandria Bay, New York.

The Department Staff was represented by Regina R. Gough, Esq., at the time Assistant Regional Attorney in the Department's Region 6 office, 317 Washington Street, Watertown, New York.

The Staff's charges against Respondents related to alleged violations of the Environmental Conservation Law ("ECL") and its implementing rules and regulations in Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") on or about real property owned by Respondents in the vicinity of the Kansas Road, Town of Pitcairn, St. Lawrence County, New York. Respondents' actions involved alleged violations of ECL 9-0303(7) - removal of materials belonging to the State from State lands without authorization from the Department; ECL 24-0701(1) and (2) - conducting regulated activities in a freshwater wetland or adjacent area without a permit; ECL 15-0501(1) - alteration of course and channel of a classified stream without a permit from the Department; ECL 23-2711(1) - removal of more than 1,000 tons of gravel within twelve consecutive months without a mining permit issued by the Department; and 6 NYCRR 360-1.5(a) - disposal of solid waste at a location other than an exempt or an authorized disposal facility. The Staff sought a monetary penalty of $60,700 and remediation to mitigate the impacts of the Respondents' activities.

The hearing commenced with the Department Staff presenting its case, calling witnesses Environmental Conservation Officer Klause D. Crosbie and Conservation Biologist II (Ecology) Mark D. Craig, both on the Department's Region 6 Staff, to testify regarding their observations and the impacts caused by Respondents' work in the area in question. At the conclusion of the first day's testimony, Respondents sought an opportunity to negotiate a settlement of the Department's charges. I authorized the negotiations which then continued into the early evening hours. The settlement negotiations were resumed and successfully concluded the following day. The hearing record was then opened for the sole purpose of memorializing the stipulated agreement.

The stipulation of settlement became effective on December 11, 1992, and the Staff advised me on December 17, 1992 that all parties wished to terminate the proceeding. On December 30, 1992, I advised the parties of the applicability of the Department's Organization and Delegation Memorandum #85-13: "Effect of Stipulations on Decision-Making in Permit and Enforcement Hearings," noting the requirement that a stipulated settlement must be formalized in a consent order. On January 21, 1993, all parties agreed that the stipulation of settlement in the instant matter should be considered as a consent order, that the words "consent order" should be substituted for the word "stipulation" throughout the document, that the intent of the stipulation was carried through into the consent order, and that there was no change in the agreement of the parties to the terms of the consent order vs. the stipulation.

The stipulation of settlement/consent order was forwarded to me by the Department Staff on January 26, 1993, and is attached hereto as "Appendix A." At that time, I requested Staff to provide information on the status of the remedial work which the stipulation had required the Respondents to complete by January 1, 1993. Staff advised on February 8, 1993 that a site inspection would be accomplished when weather and schedules allowed. On June 15, 1993, I requested the Staff to provide information on the status of all the remedial work at the site, required by the stipulation to have been completed by June 1, 1993. The Staff responded on July 16, 1993, noting that all required remedial work had been satisfactorily completed. The Staff's letter is attached hereto as "Appendix B."

I have reviewed the stipulation/consent order and have noted the Staff's satisfaction with Respondents' remediation activities. It is my determination that this matter is now resolved. No more action is required by the Office of Hearings, and in accordance with O&D Memorandum #85-13, this report is hereby filed with the Commissioner.

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