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Merrell, Peter - Ruling, January 22, 1999

Ruling, January 22, 1999

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

ORDER OF CONTINUANCE
(Motion for Order Without Hearing)

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

PROCEEDINGS

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, 2414 Mohawk Street, Sauquoit, NY 13456. Dominic R. Cordisco, Esq., Assistant Counsel, filed the motion for the Department Staff along with his affirmation, an affidavit of the Director of the Bureau of Resource Management and Development, and several exhibits. Mr. Merrell responded by letter of January 7, 1999, enclosing several exhibits. Staff submitted an affirmation in response on January 19, 1999.

The Charge:

The Staff charges Mr. Merrell with violation of Article 23 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Part 420 et seq. In particular, Mr. Merrell is alleged to have violated ECL §23-2715 and 6 NYCRR §423.1 by failing to maintain financial security since June 24, 1998 to guarantee completion of reclamation of his mine located on Mohawk Street, Town of Paris, Oneida County, NY. Staff's motion papers explain that Mr. Merrell was granted a permit to mine the site, that financial security is required to be maintained on the site, that Mr. Merrell's surety (an insurance company) became insolvent, and that Mr. Merrell did not file a new reclamation bond or other financial security after two requests to do so.

The Relief Requested:

The Staff seeks an Order Without Hearing directing that Mr. Merrell's Mining Permit be revoked, that the mine be deemed abandoned, and that the affected land be reclaimed; that should Mr. Merrell fail to comply with the Order Without Hearing, he would be subject to a civil penalty of $5,000 for owning and/or operating a mine without financial security and an additional penalty of $1,000 per day for every day that he failed to stay in compliance; and that he shall immediately cease and desist any and all violations.

The Response:

Mr. Merrell contends in his January 7, 1999 letter that his mining permit 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 Michael Buck due to the permit's expiration and Mr. Merrell's contract with Mr. Buck whereby Mr. Buck was responsible for all expenses and liability. Mr. Merrell explains that the mine was intended to supply gravel to Mr. Buck'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. Mr. Merrell 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.

DISCUSSION and ORDER

Pursuant to §622.12(c), when it appears from affidavits and documentary evidence filed in opposition to the motion, that facts essential to justify opposition may exist but cannot then be stated, the assigned ALJ may deny the motion or order a continuance to permit the submission of such essential facts and make such other orders as may be just. Mr. Merrell's response suggests that there may be facts that would justify opposition here.

As detailed in 6 NYCRR 423 and ECL §23-2715, a permittee is obliged to maintain financial security until the Department has approved of the reclamation and released the obligation. This holds true regardless of whether or not the permit has expired. The Department holds the obligation to ensure not only that mine site reclamation is completed, but that it is successful. Here, it is presumed that the Department has not released the obligation because it has not verified a successful reclamation -- otherwise the Department would not seek the relief it is requesting.

On the other hand, the substance of Mr. Merrell's letters (which have not been disputed by Staff) suggest that the Department may no longer need a bond to secure successful reclamation because (1) mining may not have taken place and (2) there is no permit to mine in the future (i.e., there may be nothing to reclaim).

Of course, financial security cannot be allowed to lapse before the Department has had an opportunity to verify successful reclamation (or the lack of need for such). The Department seems to have had the opportunity here. The regulations require that within 15 days of notification that reclamation of the affected land has been completed, the Department is to inspect the site to establish that reclamation has been performed (§422.3(f)). Mr. Merrell's letters seeking cancellation of the permit effective as of January 1, 1996 (i.e., three years ago), and requesting that Staff visit the site so the bond could be released, could be construed to be such notice. It is unknown if or how Staff responded to Mr. Merrell's request, or even if Staff was aware of it. Dwelling on this issue now, however, is not useful since it does not address the purpose of the financial security requirement, i.e., the Department's need to ensure that reclamation is carried out (or that none is needed).

More information is needed before I can make a determination on Staff's motion. If not already done, Staff needs to visit the site to determine what, if any, reclamation is needed to bring the site into compliance with Article 23. If reclamation is needed, then Staff should determine the amount of financial security it requires. Pursuant to §622.12(c), it is ordered that this matter is continued until February 23, 1999, before which date Staff will have submitted this information to me with a copy to Mr. Merrell. Mr. Merrell will have a week following Staff's submission to file a response (with a copy to Staff).

/s/
Frank Montecalvo
Administrative Law Judge

January 22, 1999
Albany, NY

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