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Green, Clinton W. - Decision and Order, December 8, 2003

Decision and Order, December 8, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Environmental Conservation
Law (ECL) Article 23 by

CLINTON W. GREEN,
Respondent

DECISION AND ORDER

DEC Case No.
R6-2003-512-38

WHEREAS:

  1. On May 29, 2003, staff of the Department of Environmental Conservation ("Department") served a motion for order without hearing upon Clinton W. Green, P.O. Box 124, Lisbon, New York 13658 ("Respondent"), alleging violations of Environmental Conservation Law ("ECL") Article 23 at two sand and gravel mines in the Town of Lisbon, St. Lawrence County, New York ("Pray Road mine" and "Brown Road mine").
  2. Respondent did not file any response to the motion.
  3. Administrative Law Judge ("ALJ") Susan J. DuBois determined that Department Staff's motion for order without hearing should be granted because no facts are in dispute which required a hearing. Upon review of the record and the ALJ's hearing report, I hereby adopt the hearing report including its Findings of Fact, Conclusions and Recommendation.
  4. No hearing is required because no material issue of fact exists.
  5. Department Staff is entitled to judgment as a matter of law and to the relief requested in its motion, as modified below.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

  1. Department Staff's motion for an order without hearing is granted.
  2. Respondent is adjudged to have violated ECL 23-2715(3) by failing to maintain financial security at the Pray Road mine and the Brown Road mine until reclamation is complete, and ECL 23-2713(2) by failing to provide the Department with a notice of termination of mining within 30 days after termination of mining at the Pray Road mine and by failing to complete reclamation of the Pray Road mine within two years after termination of mining at the site.
  3. Respondent is liable for a civil penalty in the amount of ten thousand dollars ($10,000.00), of which five thousand dollars ($5,000.00) shall be paid within thirty (30) days of service of a copy of this order upon Respondent, and five thousand ($5,000.00) shall be suspended conditioned on Respondent's compliance with this Order.
  4. Respondent shall submit a complete application to the Department for a mined land reclamation permit for the Brown Road mine within 30 days of service of this Order upon Respondent, or shall complete reclamation of the Brown Road mine by a date to be set by the Regional Director of Region 6.
  5. Within 30 days of service of this Order upon Respondent, Respondent shall submit financial security to the Department in the amount of five thousand dollars ($5,000.00) for the Brown Road mine.
  6. Respondent shall complete reclamation of the Pray Road mine by a date to be set by the Regional Director of Region 6.
  7. All communications between Respondent and the Department concerning the order, including the payment of the penalty, shall be made to the Regional Director of New York State Department of Environmental Conservation, Region 6, 317 Washington Street, Watertown, New York 13601.
  8. The provisions, terms and conditions of this Order shall bind Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf Respondent.

For the New York State Department
of Environmental Conservation

By: ___________/s/____________
Erin M. Crotty, Commissioner

Albany, New York
December 8, 2003

To: Clinton W. Green
Post Office Box 124
Lisbon, New York 13658

James T. King, Esq.
Regional Attorney
New York State Department of
Environmental Conservation
Region 6
317 Washington Street
Watertown, New York 13601

Sandra L. LeBarron
Regional Director
New York State Department of
Environmental Conservation
Region 6
317 Washington Street
Watertown, New York 13601

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
625 Broadway
Albany, New York 12233-1550

In the Matter of Alleged Violations of
Environmental Conservation Law Article 23 by

CLINTON W. GREEN
RESPONDENT

Case No. R6-2003-512-38

Hearing Report

by

___________/s/_____________
Susan J. DuBois
Administrative Law Judge

PROCEEDINGS

On May 29, 2003, the Staff of the Department of Environmental Conservation ("DEC Staff") served a motion for order without hearing upon Clinton W. Green, P.O. Box 124, Lisbon, New York 13658 ("Respondent") concerning alleged violations of Environmental Conservation Law ("ECL") article 23 at two sand and gravel mines in the Town of Lisbon, St. Lawrence County.

The DEC Staff made the motion pursuant to section 622.12 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR 622.12"). This section provides, in part, that, "In lieu of or in addition to a notice of hearing and complaint, the department staff may serve, in the same manner, a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence."

The motion alleges that the Respondent failed to maintain financial security for reclamation of the mines until the DEC approved reclamation, failed to complete reclamation for one of the mines within two years after completion of mining, and failed to pay regulatory fees. The DEC Staff submitted affidavits and exhibits, and asserted that the facts shown in them demonstrate the alleged violations. The DEC Staff mailed a copy of the motion to the Chief Administrative Law Judge ("Chief ALJ") of the DEC on May 29, 2003.

On June 3, 2003, James T. King, Esq., Regional Attorney for Region 6, mailed to the Chief ALJ proof of service of the motion upon the Respondent. The copy of the certified mail receipt included with this correspondence identified the date of delivery as May 30, 2003. The notice of motion stated that the Respondent must file a response to the motion, including all proof and supporting affidavits with the Chief ALJ at the DEC Office of Hearings and Mediation Services ("OHMS"). As of September 16, 2003, the OHMS has not received any response to the motion from or on behalf of the Respondent.

The DEC Staff submitted affidavits by Jerome E. Zaykoski, Mined Land Reclamation Specialist II, DEC Region 6 and by Yunian (Peter) Huang, Mined Land Reclamation Specialist I, DEC Region 6. The Respondent submitted no affidavits.

POSITIONS OF THE PARTIES

The Department Staff

The DEC Staff alleged that the Respondent had two mined land reclamation permits, which allowed mining of sand and gravel from 10.0 acres of affected land near Pray Road and from 3.0 acres of affected land near Brown Road, Lisbon, respectively. With regard to the Pray Road site, the DEC Staff alleged that the Respondent did not notify the DEC when mining terminated and that, although the mine was partly reclaimed, it is eroding. With regard to the Brown Road site, the DEC Staff alleged that the Respondent did not submit a notice of termination and had not properly reclaimed the mine. With regard to both mines, the DEC Staff alleged that the Respondent had not maintained financial security for reclamation. The DEC Staff alleged that the Respondent had failed to pay certain regulatory program fees, but noted that collection of the fees has been referred to the New York State Attorney General's Office.

In its motion, DEC Staff requests that the Commissioner issue an order imposing a civil penalty of $10,000, of which $5,000 would be suspended pending compliance with the order; requiring the Respondent to complete reclamation of the Brown Road mine or submit a permit application for the mine; requiring the Respondent to submit financial security for the Brown Road mine; and requiring the Respondent to complete reclamation of the Pray Road mine.

The Respondent

The Respondent did not reply to the motion.

STATUTORY PROVISIONS

ECL 23-2715(1) provides, in part, that: "Before the department may issue a permit, the applicant, unless exempt, shall furnish financial security to ensure the performance of reclamation as provided in the approved mined land-use plan and naming the state as beneficiary." ECL 23-2715(3) provides that, "The financial security shall remain in full force and effect until the department has approved the reclamation. At the discretion of the department, the permittee may secure the release of that portion of the financial security for affected land on which reclamation has been completed and approved by the department."

ECL 23-2713(2) provides, in part, that, "The reclamation of all affected land shall be completed in accordance with the schedule contained in the approved mined land-use plan pertaining thereto. The schedule, where possible, shall provide for orderly, continuing reclamation concurrent with mining. The permittee shall submit to the department a notice of termination of mining within thirty days after such termination. Reclamation of the affected land shall be completed within a two year period after mining is terminated, as determined by the department, unless the department deems it in the best interest of the people of the state to allow a longer period for reclamation."

ECL 71-1307(1) (Administrative sanctions) provides, in part, that: "Any person who violates any provision of article 23 of this chapter or commits any offense described in section 71-1305 of this title shall be liable to the people of the state for a civil penalty not to exceed five thousand dollars and an additional penalty of one thousand dollars for each day during which such violation continues, to be assessed by the commissioner after a hearing or opportunity to be heard.... In addition, the commissioner shall have the power, following a hearing conducted pursuant to rules and regulations adopted by the department, to direct the violator to cease the violation and reclaim and repair the affected site to a condition acceptable to the commissioner, to the extent possible within a reasonable time and under the direction and supervision of the commissioner."

ECL 72-1005(3) provides that, "for all persons holding permits or approvals, or subject to regulation under this title liability to pay annual fees shall continue until such time as reclamation has been completed and approved by the department and any required financial security has been released, and shall be prorated to the date of approval by the department."

RULING ON THE MOTION FOR ORDER WITHOUT HEARING

Section 622.12 of 6 NYCRR governs motions for orders without hearing in DEC enforcement hearings. This regulation requires that within 20 days of receipt of such motion, the respondent must file a response with the Chief ALJ which shall also include supporting affidavits and other available documentary evidence (6 NYCRR 622.12(c)). The regulation also provides that, "A contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the [Civil Practice Law and Rules ("CPLR")] in favor of any party. Likewise, where the motion includes several causes of actions, the motion may be granted in part if it is found that some but not all such causes of action or any defense thereto is sufficiently established. Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the commissioner pursuant to section 622.18 of this Part" (6 NYCRR 622.12(d)).

Section 3212(b) of the CPLR provides, in part, that a motion for summary judgment shall be granted, "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact"

The procedure for motions for order without hearing also requires that the DEC Staff send to the Chief ALJ proof of service of the motion on the respondent (6 NYCRR 622.12(a)). The DEC Region 6 Staff did submit proof of service, in the form of an affidavit by Ardis Seifried, Secretary I, DEC Region 6 to which was attached a copy of the certified mail return receipt. The receipt was signed by Emily Green on May 30, 2003.

The affidavits and exhibits submitted by the DEC Staff prove the alleged violations, and the Respondent has not contested the proof. There are no disputes of fact which require a hearing.

Ruling: The motion for order without hearing is granted, because there are no facts in dispute that would require a hearing. The present report, including the findings of fact, conclusions and recommendation below, will be submitted to the commissioner for her review in deciding this matter.

FINDINGS OF FACT

  1. Clinton W. Green (the "Respondent"), Post Office Box 124, Lisbon, New York 13658, had two mined land reclamation permits for mines located in the Town of Lisbon, St. Lawrence County, New York. The Respondent mined at both mines.
  2. Mined Land Reclamation permit No. 6053-30-0419 (DEC Permit No. 6.01100) was issued to the Respondent allowing mining of sand and gravel from 10.0 acres of affected land near Pray Road, Town of Lisbon. The permit had an effective date of December 7, 1990 and an expiration date of December 31, 1993. This mine is also referred to in a letter from DEC Region 6 as the Trevor Moore Pit.
  3. Mined Land Reclamation permit No. 605-3-30-0333 (DEC Permit No. 6.01066) was issued to the Respondent allowing mining of sand and gravel from 3.0 acres of affected land near Brown Road, Town of Lisbon. The permit had an effective date of January 10, 1997 and an expiration date of January 1, 2002.
  4. The Pray Road mine's permit expired on December 31, 1993 but the Respondent never renewed the permit. The Respondent has not mined at this facility since the early 1990's. On September 20, 2002, Jerome E. Zaykoski, a Mined Land Reclamation Specialist II in the DEC's Region 6 Office, inspected the Pray Road mine. The facility was graded and mostly vegetated, but erosion had occurred that required attention. Mr. Zaykoski sent a letter dated October 3, 2002 to the Respondent, describing the required reclamation; this would consist of grading some locations and seeding with a specified seed mixture. The Respondent has not properly reclaimed the affected land on the Pray Road mine site.
  5. The Respondent did not submit to the DEC a notice of termination of mining for the Pray Road mine.
  6. The Brown Road mine's permit expired on January 1, 2002. On or about November 14, 2001, Yunian (Peter) Huang, Mined Land Reclamation Specialist I, DEC Region 6, mailed a letter to the Respondent, reminding the Respondent that the permit for the Brown Road mine would expire on January 1, 2002 and transmitting the forms necessary for renewal. The Respondent did not renew the permit.
  7. Mr. Zaykoski inspected the Brown Road mine on September 20, 2002. Mr. Zaykoski's October 3, 2002 letter to the Respondent also describes reclamation work to be done at this mine. The Respondent has not properly reclaimed the affected land on the Brown Road site.
  8. The Respondent did not submit to the DEC a notice of termination of mining for the Brown Road mine.
  9. On or about February 21, 1996, the DEC received a blanket letter of credit in the amount of $13,000 to cover the Respondent's reclamation liability for the Pray Road mine ($8,000) and the Brown Road mine ($5,000).
  10. On or about July 18, 2000, the DEC caused a letter to be sent to the Respondent informing him that, through an audit of the mined land reclamation financial security records, the DEC found that the Respondent's $13,000 letter of credit was revoked in 1997. The July 18, 2000 letter asked the Respondent to supply the DEC with a financial security instrument in the amount of $13,000 by July 28, 2000.
  11. On or about September 13, 2000, the Department caused a letter to be sent to the Respondent by certified mail requiring submission of proof of financial security within 15 days of receipt of this certified mailing. Since the September 13, 2000 correspondence, the DEC has not received proof of financial security.
  12. As of May 9, 2003, the Respondent is responsible for back regulatory fees and interest totaling $4,912.88 for the Brown Road mine and $6,317.55 for the Pray Road mine (for a combined total of $11,230.43). The DEC referred collection of this total to the New York State Attorney General's Office.

CONCLUSIONS

  1. The Respondent violated ECL 23-2715(3) by failing to maintain financial security at the Pray Road mine and the Brown Road mine until reclamation is complete.
  2. The Respondent violated ECL 23-2713(2) by failing to provide the DEC with a notice of termination of mining within 30 days after termination of mining at the Pray Road mine.
  3. The Respondent is liable for permit fees, including penalty and interest, until such time as reclamation has been completed and approved by the DEC. This has not yet occurred for the Pray Road mine or the Brown Road mine.
  4. The Respondent violated ECL 23-2713(2) by failing to complete reclamation of the Pray Road mine within two years after completion of mining.
  5. The DEC Staff did not submit proof that five acres have been affected by mining at the Brown Road mine or that this acreage should be the basis for $12,500 as the financial security for this mine. The DEC Staff's proof does, however, demonstrate that the prior financial security for the Brown Road mine was $5,000. If the Respondent applies for a permit for the Brown Road mine, the amount of the reclamation bond would be determined by the DEC Staff pursuant to 6 NYCRR 423.1.

RECOMMENDATION

The relief requested in the motion for order without hearing should be granted by the Commissioner, with a lower amount for the requested financial security and an adjustment of the date by which the Respondent shall complete reclamation. This relief includes a civil penalty of $10,000, $5,000 of which would be suspended conditioned on the Respondent's compliance; an order that the Respondent submit a completed application to the DEC for the Brown Road mine within 30 days of service of the order or complete reclamation of the mine by a date to be set by the Region 6 Director; an order that the Respondent submit financial security in the amount of $5,000 for the Brown Road mine; and an order that the Respondent complete reclamation of the Pray Road facility by a date to be set by the Region 6 Director.

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