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Harvey Sand & Gravel/Michael Harter - Order, January 4, 1995

Order, January 4, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the alleged Violations of the Environmental Conservation Law ("ECL")
Article 23 Title 27 Mined Land Reclamation and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 420 et seq.,DEC File #R4-1549-93-07

- by -

MICHAEL P. HARTER
and
HARVEY SAND AND GRAVEL, Inc.
Oneonta (T) Otsego County, NY
RESPONDENTS

ORDER

WHEREAS:

  1. Pursuant to a Notice and Complaint effective March 10, 1994, [when the motion for a Summary Order was denied], a civil administrative enforcement hearing was held before Administrative Law Judge Francis W. Serbent on September 13 and 14, 1994 at the Department's Region 5 Headquarters, 1150 North Wescott Road, Schenectady. Marc S. Gerstman, Esq., General Counsel and Deputy Commissioner (David Keehn Esq., Assistant Regional Attorney, of Counsel) represented the Department Staff. The Respondent Michael Harter represented himself and as owner and operator of Harvey Sand and Gravel Inc.
  2. Upon review of the Hearing Report [copy attached] of Administrative Law Judge Francis W. Serbent, I concur with its Findings of Fact, Conclusions and Recommendations.

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

  1. Respondents violated the Order on Consent in case R4-1192-91-06 dated October 7, 1991 paragraph IV by not reclaiming designated areas.
  2. Respondents violated the Order on Consent in case R4-1192-91-06 dated October 7, 1991 paragraph VI by not securing or maintaining a reclamation bond or equivalent surety in the amount of Fifty Four Thousand and Six Hundred ($54,600.00) Dollars.
  3. Respondents violated the Order on Consent in case R4-1192-91-06 dated October 7, 1991 paragraph VI by not providing a report identifying in narrative and on a map the acres duly reclaimed.
  4. Within thirty (30) days after the service of a conformed copy of the Order, the Respondents shall post a reclamation bond or equivalent surety in the amount of Fifty Four Thousand and Six Hundred Dollars ($54,600.00) or, alternatively, the Respondents shall cease mining operations immediately at the mine site.
  5. The Respondents shall reclaim lands identified on attachment B in the Order on Consent in case R4-1192-91-06
  6. For the aforementioned violations, Respondents are jointly and severally assessed a civil penalty of Seventy Five Thousand Dollars ($75,000). Of this amount Fifty Thousand Dollars ($50,000) is suspended on the condition that the Respondents fully comply with the terms of this Order. The unsuspended portion of the civil fine shall be due and payable Sixty (60) days after the service of a conformed copy of this Order on the Respondents.
  7. The Respondent's shall provide access to Department personnel to enter and inspect the mine to check compliance with the ECL, regulations promulgated thereunder, the terms and conditions of the Order on Consent in case R4-1192-91-06 and this Order.
  8. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, agents, servants, employees, successors assigns and all persons, firm and corporations acting for or on behalf of the Respondent.
  9. All Communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 4 Director, 1150 North Wescott Road Schenectady NY 12306.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH,
COMMISSIONER

Dated: Albany, New York
January 4, 1995

TO:

Michael Harter
PO Box 868
Hemlock Road
Oneonta NY 13820

Michael Harter, Owner/Operator
Harvey Sand and Gravel, Inc.
PO Box 868
Hemlock Road
Oneonta NY 13820

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the alleged Violations of the Environmental Conservation Law ("ECL")
Article 23 Title 27 Mined Land Reclamation and Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")
Part 420 et seq.,DEC File #R4-1549-93-07

- by -

MICHAEL P. HARTER
and
HARVEY SAND AND GRAVEL, Inc.
Oneonta (T) Otsego County, NY

Hearing Report

PROCEEDINGS

On January 6, 1994, the New York State Department of Environmental Conservation ["Department"] served a Motion for a Summary Order and a Notice of Hearing, both dated December 22, 1993, and supporting papers for Case R4-1549-93-08. Service was by certified mail, article #325 346 009 to Respondent Harvey Sand and Gravel, Incorporated and by certified mail article #325 346 010 to Respondent Michael P. Harter. The Department filed signed return receipts for both mail articles.

This proceeding is pursuant to the Environmental Conservation Law ("ECL") Article 3 Title 3 General Functions, Powers, Duties and Jurisdiction; ECL Article 23 Title 17, New York State Mined Land Reclamation Law; ECL Article 71 Title 13, Enforcement of Article 23 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 420 et seq. and Part 622 (Uniform Enforcement Hearing Procedures) in effect on the date of service of process, January 6, 1994. [Note: Revisions to Part 622 became effective on January 9, 1994.].

6 NYCRR 622.10 provides twenty days for a respondent to file answering papers on a motion for a summary order. Mr. Harter filed on January 31, 1994. He filed an affidavit in opposition with apparent facts sufficient to require a hearing. Francis W. Serbent is the administrative law judge ["ALJ"] assigned to this case. On March 10, 1994, the ALJ denied the motion for a summary order and ordered a hearing. The ALJ advised the Parties that the motion for a summary order would now serve as the Complaint. Mr. Harter's affidavit would serve as the Answer.

The ALJ adjourned, without date, the hearing scheduled for July 13, 1994 to accommodate a family matter of Mr. Harter. Mr. Harter filed appropriate documentation later to avoid any question of default. The ALJ rescheduled the hearing for September 13, 1994.

The ALJ held the hearing as scheduled at the Department's Region 4 Headquarters, 1150 North Westcott Road, Schenectady. The examination of the testimony at hearing concluded on the next day, September 14, 1994. The record was initially closed on November 18, 1994 upon receipt of Mr. Harter's post hearing submittal. Staff then moved to file a response, an option arranged for at the hearing. The ALJ reopened the record for Staff's response until December 16, 1994 when the record was closed.

Mr. Harter used video tapes with his testimony. The ALJ asked Mr. Harter to transpose the video tapes into the VHS format. The ALJ said he would receive the tapes and Mr. Harter's petitions for subpoenas until the transcript came. He received the transcript of the hearing on October 28, 1994. The ALJ then advised the Parties that the record would remain open through November 18, 1994 for Mr. Harter's written closing statement. The ALJ also advised the Parties that Mr. Harter did not submit as scheduled the petitions for subpoenas or the video tape. As a result, the ALJ excluded the testimony based on the video from the record as evidence.

Appearances

The Respondent Michael Harter represented himself and as owner and operator of Harvey Sand and Gravel Inc. [collectively, Mr.Harter]. He testified for Respondents and examined Staff witnesses and evidence.

Marc S. Gerstman, Esq., General Counsel and Deputy Commissioner (David Keehn Esq., Assistant Regional Attorney, of Counsel) represented the Department Staff. Allan Hewitt, the Region IV Mined Land Reclamation Specialist and Donald Seacord, Regional Forest Ranger of Staff prefiled their direct testimony. and were available for examination.

Complaint

The Department's Region 4 Staff ["Staff"] alleges violations of the 1991 Consent Order in Case #R4-1192-91-06 ("Consent Order") at Mr. Harter's sand and gravel surface mine [the "mine"]. The mine is at Hemlock Road, Oneonta, Otsego County. The Consent Order sought to document in words and to show on a site map the mined lands reclaimed by Mr. Harter. The Consent Order also sought a bond of fifty four thousand and six hundred ($54,600) dollars. In the alternative, the Consent Order would have Mr. Harter immediately cease mining and reclaim the lands.

The Staff contends Mr. Harter violated the Consent Order by failing to provide a reclamation bond or equal, by failing to provide a report and map showing reclaimed areas as of December 31, 1991 and by failing to complete reclamation as ordered.

Relief

The Staff seeks a new Order for reclamation as found in the Consent Order. The Staff wants a penalty assessed jointly and severally. The penalty would be twenty-five thousand [$25,000] dollars if there is performance bond of fifty-four thousand six hundred ($54,600.00) dollars. In the alternative, the Staff seeks complete reclamation, the end of mining activities plus a penalty of seventy five thousand [$75,000] dollars.

Answer and Position

At the hearing, Mr. Harter acknowledged the facts disputed in his Answer. The ALJ would have granted Staff's motion for a summary order if Mr. Harter admitted the facts in his Answer. However, since testifying, he continues to blame Staff for the status of reclamation and reclamation bonding.

Mr. Harter initially claims he either obeyed the Consent Order, was unable to obey because of further oral agreements with Staff or he was unable to obey because of action and inaction by Staff. Mr. Harter's stated impressions, expectations and understandings are that the Parties should consider the Consent Order in the context of all the meetings, conversations and proceedings leading up to it. He believes the Parties should consider the Consent Order in the context of the means and mechanisms for carrying out its provisions. During the hearing he claimed the Consent Order was inappropriate because the Staff reneged on oral agreements. He also claimed the Staff erred in the assessments of mine activity and reclamation efforts before and after the 1991 Consent Order.

In the Answer, Mr. Harter admits his failure to report and certify reclaimed areas. He contends that Staff misled him into believing he would get Staff's help in identifying reclaimed areas before ordering a surveyor on site. In closing he says that he would be wasting his money for the expense of a surveyor if he and Staff would not recognize the same reclamation.

He also contends that the amount of the bond in the Consent Order is too high. He says that if Staff agreed with him to reclaim less area, the Consent Order would require a smaller bond. He contends he could have sought a smaller bond. Since Mr. Harter disputed the amount of the bond, he decided not to pursue bonding alternatives either initially when he did not have enough money or later as his finances improved. Since Staff did not identify reclaimed areas on site as Mr. Harter wanted, he blames Staff for his not hiring a surveyor and for not securing a bond.

Mr. Harter contends that his original bond would still be in effect if Staff did not arbitrarily and capriciously interfere. Staff responded to the notices of cancellation of the bond by claiming the bond before it expired. Mr. Harter was not aware of Staff's claims and states it is interference. Staff also increased the cost estimate for reclaiming each acre and so the bond amount, even for the same acreage, would be more.

Mr. Harter attacked the credibility of Staff's witness Mr. Hewitt. He disputes Mr. Hewitt's denial of certain statements, agreements and events surrounding the Consent Order. He disputes Mr. Hewitt's ability to recognize reclamation, topsoil and overburden at the mine [Note: On cross examination, Staff witness Hewitt confused two identical photographs of different size prints, as showing two different places at the mine site.]

Mr. Harter claims a 1992 fire that destroyed records at his attorney's office cripples his defense in this proceeding. (100)

Motions

Staff moved on May 13, 1994 for the ALJ to compel Mr. Harter to reveal certain documents requested by Staff on April 1, 1994. The ALJ posted his order to produce by certified mail, article #P 099 130 715. Mr. Harter received the order on June 6, 1994 and returned the signed receipt for the file. Absent any response, Staff moved for an order preventing evidence on subjects referenced in discovery. Staff also moved for an order resolving in its favor the issues subject to discovery.

In a letter to the ALJ dated July 12, 1994, Mr. Harter requested a denial of Staff's motion. He claims the documents sought by discovery are either in the Department's files or are easily available to Staff otherwise.

In that same letter Mr. Harter also requested the ALJ to sign subpoenas duces tecum for service on Donald Seacord and Al Hewitt of the Staff. The ALJ asked Mr. Harter if he is an attorney and the response was yes. Although the ALJ advised him that an attorney has the power to issue subpoenas, Mr. Harter continued to press his request. The motion became moot since Staff presented both people as witnesses and Mr. Harter examined them.

On the day before the hearing, Mr. Harter served subpoenas duces tecum on Staff's Tom Dent and Donald Seacord. At the hearing, Staff moved to quash. Mr. Harter signed the Dent subpoena pro se and the Seacord subpoena was unsigned. The ALJ advised Mr. Harter to submit a petition to the ALJ for judicial subpoenas. He did not file a petition.

FINDINGS OF FACT

  1. Harvey Sand and Gravel, Inc, ["Harvey"] owns and operates a sand and gravel surface mine located on Hemlock Road in the Town of Oneonta, Otsego County.
  2. Mr. Michael P. Harter is the President of Harvey Sand and Gravel, Inc, and is in control of day to day operations at Harvey.
  3. On October 4, 1991, Mr. Harter, on his own behalf and as President of Harvey, signed Consent Order R4-1192-91-06 ["Consent Order"].
  4. Mr. Harter did not ask for any change in the Consent Order after he signed it.

    Reclamation

  5. Paragraph IV of the Consent Order incorporates a site map to identify two (2) areas of mined lands for Mr. Harter to reclaim by December 31, 1991. The map is altered to show the two areas by the addition, drawn freehand, of diagonal parallel lines within a frame outline.
  6. Paragraph IV of the Consent Order includes the specifications for growing an erosion resistant vegetative cover on lands disturbed by mining, grading, stripping or excavation. The specifications recommend the use of seeds of perennial rye grass, creeping red fescue, birdsfoot trefoil, Kentucky blue grass, annual rye grass and white clover. Also specified is a vegetative cover without rill or gully erosion. The vegetation should cover at least seventy five (75%) percent of the surface area, without bare spots and with grasses evenly dispersed. The specification requires reclamation before May 30, 1992.
  7. Paragraph IV of the Consent Order requires Mr. Harter to submit by December 31, 1991, a sworn statement that the reclamation is complete as ordered.
  8. Paragraph VI of the Consent Order requires by December 31, 1991, the identification by narrative and by mapping the acres duly reclaimed.
  9. The area on the map of one and three tenths (1.3) acres is the smaller of the two areas for reclamation. Because of the dense vegetative growth covering the area in 1991, no soil was visible. The growth includes scrub and weed cover, some beginnings of secondary growth, berry bushes, flowers and trees up to an estimated twelve foot height.
  10. The other area for reclamation on the map is larger but of unspecified size. The map identifies the area as mined before 4-1-75. Vegetative growth partially covers the area. Mr. Harter stopped the reclamation work in this vicinity in 1993.
  11. Within the mine area of unspecified size and identified for reclamation, Mr. Harter seeded bare spots in the south westerly portion in 1992. There was erosion in the seeded areas.
  12. Various other areas of the mine support enough volunteer growth to hide the surface soil from view.
  13. After signing the Consent Order in 1991, Mr. Harter delayed reclamation efforts until 1992. He delayed working his equipment at the end of 1991 because the steep soil banks were too wet from weather conditions.
  14. In April 1992, a D8 size bulldozer began rough grading at the mine. In the estimated four and one half (4 1/2) weeks at the site, the bulldozer cost Mr. Harter sixteen thousand two hundred and sixty nine ($16,269.00) dollars.
  15. Later in 1992 and into 1993, a smaller sized bulldozer was at the mine at a cost of four thousand five hundred ($4,500.00) dollars. Its work included the mixing of the settled material from wash water ponds with other materials to make substitute topsoil.

    Reclamation Bond

  16. The Aetna Casualty and Surety Company canceled Mr. Harter's bond on October 15 1991. It was a Mined Land Reclamation policy, #10 S 100077701 BCA insuring Harvey Sand and Gravel, Inc., PO Box 868 Hemlock Road, Oneonta NY 13820. The policy identifies the trustee as the Department's Region IV Headquarters.
  17. Mr. Harter could not afford alternative bonding.
  18. Mr. Harter has not posted a bond as required in the Consent Order.

CONCLUSIONS

Reclamation

1. Mr. Harter violated the provision of the Consent Order paragraph IV by not reclaiming identified areas before May 30, 1992.

Discussion: The Consent Order presents two (2) deadlines for reclamation, December 31, 1991 in the main body of the text and May 30, 1992 in attachment A, the specifications for reclamation. Only the May 30, 1992 date is considered for on site reclamation in this report. Mr. Harter admitted in testimony both of incomplete reclamation in 1992 and 1993. He did not seek any changes to the Consent Order. He did not reschedule the completion date, clarify what areas really needed reclamation and did not identify areas that had partial reclamation or what areas had natural growths providing a vegetative cover serving as reclamation.

Among his excuses, Mr. Harter claims that he agreed to reclaim areas disturbed before he took over because of oral assurances (unspecified) from Staff. He implies that these assurances would allow him to proceed with reclamation without the Consent Order. He did not say why the assurances were not in the Consent Order. He states that if he could continue to operate and reclaim as he agreed to and with Staff's assurances, these proceedings should not be taken against him.

In 1991, volunteer vegetation growing on the smaller of the two areas ordered reclaimed, grew to cover part or all of the area. A survey and map would define the area and the cover. There were no signs of erosion, rills or bare spots in the area. Staff's position is that it is reclamation only if done as specified. However Staff's did not provide the identification of any departure from any particular specification item for functional reclamation. Regardless of the question of acceptable reclamation, even if there is reclamation, the survey and map for certification is a requirement of the Consent Order. The map, rather than testimony or exhibits of snapshots or video tapes, would show the areal extent and locations of reclamation.

Mr. Harter wants recognition and credit for his uncompleted reclamation efforts of rough grading and the mixing of materials as a substitute for topsoil. However, there is no partial credit for uncompleted reclamation. The Consent Order specifies only a successful erosion resistant vegetative cover with complete reclamation by May 30, 1992.

Mr. Harter admits he stopped the reclamation process in 1993 when he understood his work did not satisfy Staff. He claims he wanted to find out what work would satisfy Staff before continuing. He blames Staff for not catering to his wants, methods and operations so since 1993, there was no reclamation work. (193 205).

2. Mr. Harter violated the provisions of the Consent Order paragraph VI by failing to submit the narrative descriptions and maps of reclaimed acres.

Discussion: Mr. Harter admits his failure to report and certify reclaimed areas. He blames Staff for misleading him to believe he would get Staff's help in identifying reclaimed areas before ordering the surveyor on site. Without Staff's agreement on where and what is reclamation, Mr. Harter claims the expense of a surveyor would be a waste. However Mr. Harter signed the Consent Order agreeing to provide by a given date a map showing reclamation. His disputed with Staff is an excuse for his failure to obey the Consent Order.

Reclamation Bond

3. Mr. Harter violated the provisions of the Consent Order paragraph VI by failure to post by December 31, 1991 a reclamation bond, or equal, at a minimum of fifty four thousand and six hundred ($54,6000.00) dollars.

Discussion: Mr. Harter as a witness admitted he did not post a bond. He also admits that he paid no premiums to maintain a bond or that he otherwise provided surety since 1991. His excuses are that Staff would not recognize overgrown areas as reclamation and Staff interfered with his bonding agents.

Staff determines the bond amount on the acreage to be reclaimed and the estimated cost to reclaim any acre. Mr. Harter claims Staff can exclude overgrown areas from the computation for the amount of a bond. Mr. Harter claims he could have sought a reduced bond. Since Staff did not agree with him on where and what is reclamation, Mr. Harter blames Staff for his not securing a bond.

The bonding company sent cancellation notices on three occasions to Mr. Harter with copies of each to Staff. Mr. Harter claims interference when Staff sought to claim the bond by letters on the first two occasions. Staff did not send a copy of either letter to the Respondents. Mr. Harter says that Staff's claims for the bond later prevented him from getting a reclamation bond. After each of Staff's claim for the bond, the bonding company would rescind the cancellation notices. A third cancellation notice was not rescinded in 1991 and Staff did not claim the bond by letter. The bonding company did not rescind the third cancellation notice. There is nothing in this record pointing to Staff's interference or otherwise supportive of the Mr. Harter's claim.

Penalties

The Consent Order paragraph II orders includes a daily penalty of one thousand ($1,000.00) dollars a day for failure to comply with the terms, provisions and conditions of the Consent Order. The Consent Order fixes a completion date of May 30, 1992 for Mr. Harter, who failed to do the reclamation and related work ordered. The ALJ ruled the motion for a summary order was a Complaint on March 10, 1994, six hundred and fifty (650) days after the completion date. According to the Consent Order, Mr. Harter agreed to the $1,000 a day for any violation occurring after the Consent Order. However, Staff asks for a lesser penalty. Staffed moved for satisfaction of reclamation requirements plus a penalty of $25,000 dollars and a bond of $54,600. In the alternative, Staff moved for complete reclamation, a penalty of $75,000 and the end of mining.

During this proceeding, Mr. Harter acknowledged the facts that he initially disputed in his Answer. The motion for a summary order would have been granted and the penalties therein would stand had Mr. Harter not initially disputed the facts. The penalties recommended are the same as the amounts in the Complaint (initially the motion for a summary order) and are nominal compared to the sum of the daily penalties at the rate of $1,000.00 a day that Mr. Harter agreed to in the Consent Order.

RECOMMENDATIONS

1. The Order as originally sought by Staff should be given as follows:

  1. Finding Respondents violated the DEC Order on Consent in case R4-1192-91-06 dated October 7, 1991 paragraph IV by not reclaiming designated areas.
  2. Finding Respondents violated the DEC Order on Consent in case R4-1192-91-06 dated October 7, 1991 paragraph VI by not securing or maintaining a reclamation bond or equivalent surety in the amount of fifty four thousand and six hundred ($54,600.00) dollars.
  3. Finding Respondents violated the DEC Order on Consent in case R4-1192-91-06 dated October 7, 1991 paragraph VI by not providing a report identifying in narrative and on a map the acres duly reclaimed.
  4. Requiring Respondents to comply with the Order on Consent in case R4-1192-91-06 and the applicable regulations by posting a reclamation bond or equivalent surety in the amount of fifty four thousand and six hundred dollars ($54,600.00) or alternatively, ordering Respondents to cease mining operations immediately at the mine site.
  5. Requiring Respondent to reclaim lands identified on attachment B in the Order on Consent in case R4-1192-91-06
  6. Assessing a penalty against Respondents, jointly and severally, in accordance with the terms of ECL 71-1307 and the Order on Consent in case R4-1192-91-06. The penalty is in the amount of seventy five thousand ($75,000.00) dollars if Respondents fail to post a reclamation bond as required or voluntarily cease mining immediately and in the amount of twenty five thousand ($25,000.00) dollars if Respondents do post a bond as required and reclaim as stated in the Consent Order.
  7. Providing access to DEC personnel to enter and inspect the mine to check compliance with the ECL, regulations promulgated thereunder, the terms and conditions of the Order on Consent in case R4-1192-91-06 and this Order.

_____________/s/_____________
Francis W. Serbent
Administrative Law Judge

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