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Merrell, Peter - Order, February 28, 2000

Order, February 28, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 23 of the New York State Environmental Conservation Law, and 6 NYCRR Part 420 by

Peter Merrell
Respondent

Case No. 6-3050-00019/00001-1

ORDER

WHEREAS:

  1. Pursuant to a Motion dated December 23, 1998, the New York State Department of Environmental Conservation (the "Department" or "DEC") Division of Mineral Resources Staff ("Staff") moved for an Order Without Hearing pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 622.12 against Peter Merrell (the "Respondent"), alleging that he violated Article 23 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Parts 420 et seq., by failing to maintain financial security to guarantee completion of reclamation of his mine located on Mohawk Street, Town of Paris, Oneida County, NY. The Staff sought an Order Without Hearing to direct that Mr. Merrell's Mining Permit be revoked, that the mine be deemed abandoned, and that the affected land be reclaimed.
  2. The Respondent responded to the Motion by a letter which explained that his mining permit had expired on February 28, 1998; that no notice of renewal was ever filed; and that he had understood that the bond had been previously refunded to a third party due to the permit's expiration and his contract with the third party whereby the third party was responsible for all expenses and liability. The Respondent explained that the mine was intended to supply gravel to the third party's construction business, but that none was ever mined because the gravel was no longer needed by the time the local special use permit was received. The Respondent submitted copies of two letters he wrote to the Department on December 26, 1995, which requested that the permit be canceled effective January 1, 1996 and that a site visit be made to enable the bond to be returned.
  3. The Motion was considered by Administrative Law Judge Frank Montecalvo who issued on January 22, 1999, an Order of Continuance to obtain from the Staff information on what, if any, reclamation was needed to bring the site into compliance with Article 23; and that if reclamation was needed, the amount of financial security Staff required.
  4. Regional Staff responded by inspecting the mine site on February 3, 1999. They found that approximately one acre had been disturbed by mining activities, and that there had been no grading or vegetation of same, other than some regrowth through wind borne seeding. However, the application on file in the Department's Central Office which had been submitted with Staff's motion papers, stated that the "present land use" was "an existing gravel pit that was used for a limited source of gravel" (emphasis supplied), and that the "Area affected since April 1, 1975" was "None."
  5. On March 19, 1999, ALJ Montecalvo issued an Order of (Further) Continuance to obtain from the Staff information that would distinguish any post-permit review excavation from the pre-existing gravel pit. No response from Staff was received.
  6. Following additional inquiry by the ALJ and receipt of other correspondence, the ALJ issued on January 24, 2000, a Ruling and Summary Report.
  7. Upon review of the ALJ's Ruling and Summary Report (copy attached) and the record of this proceeding, I concur with his findings of fact and conclusion which establish that the mine site predates the effective date of the law and regulations, that mining has not occurred since the effective date of the regulations, that Respondent requested cancellation of the permit and, thus, under these circumstances there is no basis to require reclamation. Accordingly, I concur with the ALJ's recommendation and, THEREFORE, ORDER that:

This proceeding is hereby dismissed.

For the New York State Department Of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Albany, New York
February 28, 2000

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