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Merrell, Peter - Ruling 3, January 24, 2000

Ruling 3, January 24, 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

RULING and SUMMARY REPORT
(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.

Charges and Response

The Staff charged Mr. Merrell with violation of Article 23 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Parts 420 et seq. In particular, Mr. Merrell was 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. The Staff's motion papers explained 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 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. The Staff further requested that should Mr. Merrell fail to comply with the foregoing requirements, that he 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 be directed to immediately cease and desist any and all violations.

Mr. Merrell responded in a letter 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 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 explained 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.

Order of Continuance and Supplemental Information

On January 22, 1999, I issued 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.

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. Staff indicated that they responded to Mr. Merrell's December, 1996 request to cancel the permit and visit the site by sending Mr. Merrell a letter asking about the status of reclamation, but that no response was received.

Although the regional Staff alleged that the one acre area had been disturbed since 1989, they also alleged that at the time of their original permit review (1989) there was no evidence of excavation at the site. That statement, however, conflicts with the application which was on file in the Department's Central Office (submitted with Staff's motion papers) which 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." In other words, the application alerted the Department that a pre-statute mine was already present at the site.

Order of (Further) Continuance and Supplemental Information

On March 19, 1999, I 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. I noted that if Staff showed mining activity beyond that which existed when the permit was originally sought (i.e., 1989), the Respondent would either have to deny it in an affidavit (in which case a hearing on the issue would be scheduled), admit it, or be silent (in the last two alternatives the Staff's motion for an Order Without Hearing would be granted). I also noted that if Staff were proceeding under a theory that the Respondent is obliged to carry out the reclamation plan regardless of whether or not mining under the permit actually took place, the Staff needed to clearly explain this. (In that regard it was noted that Special Condition 5 of the permit indicated that "Reclamation shall be concurrent with mining ..." -- implying that no reclamation would be needed if no mining took place.) I directed that Staff submit its information no later than March 19, 1999, and gave Mr. Merrel until April 2, 1999 to respond thereto. I warned that a failure by the Respondent to submit a response would be construed as agreement with the Staff's information.

Later Events

Department Staff did not respond to the direction given in the Order of (Further) Continuance. Although Staff made no submission, the Respondent sent a letter dated March 29, 1999, further detailing how he had obtained the gravel pit, the pit's earlier history, giving the name of a neighbor who could verify that no mining had taken place, and offering to provide a list of other persons who could also verify the same.

On June 28, 1999, I wrote to Staff to inquire on the status of the matter. I noted that I had previously continued the matter to enable Staff to resolve the conflicting information in its earlier submissions, that Staff did not respond, but that Respondent submitted additional information. I indicated that since I had not heard from the Staff, it appeared that the Staff looked into the matter further, took into consideration Mr. Merrill's assertions, and satisfied itself that Mr. Merrill committed no violation. I told Staff that if that had not been the case, the Staff should notify me and the Respondent within 10 days on how they wished to proceed, otherwise the matter would be deemed resolved.

On July 12, 1999, Staff indicated by letter that it interpreted ECL §23-2713(1)(a) [which describes the contents of a mining plan] and §23-2713(2) [which describes reclamation requirements, including, where possible, "reclamation concurrent with mining"] to mean that if a prior disturbed area is included in the life of mine footprint, the permittee has an obligation to reclaim that area in addition to areas disturbed subsequent to receiving the permit [bracketed material by the undersigned]. Staff further indicated, however, that if Mr. Merrel could demonstrate to Staff's satisfaction that the disturbance in question occurred prior to April 1, 1975, then he has no obligation to reclaim.

On September 30, 1999, Thomas F. O'Brien, Esq., Town of Paris Attorney, sent a letter to the parties and myself indicating that the Town may have mined gravel at Mr. Merrell's site between 1963 and 1966, but that the fact could not be confirmed because no one had direct knowledge of such matters during that time period.

No further communications have been received on this matter from anyone.

The facts set forth below are uncontroverted. Findings 1-5 and 7-10 are based on Staff's affidavits and exhibits. Finding 6 is based on Respondent's request to cancel the permit, which Staff acknowledged receiving.

FACTS

  1. This matter involves a mine site located on Mohawk Street, in the Town of Paris, Oneida County, NY. The site had been subjected to a limited about of mining prior to April 1, 1975.
  2. On or about August 21, 1989, the Respondent filed with the Department a Mining Plan and a Mine Reclamation Plan for the mine site that had been prepared by the Oneida County Soil and Water Conservation District. Said plans described the then present land use as "an existing gravel pit that was used for a limited source of gravel." A diagram of the site attached to the plans depicted an "excavated pit," with profiles of the "existing floor" and "existing depth."
  3. On or about February 2, 1990, Respondent filed a financial security bond from the New York Surety Company with the Department.
  4. On or about February 10, 1993, Respondent filed an application to renew his permit. The application stated that no acreage had been affected since April 1, 1975.
  5. On March 9, 1993, Respondent was issued a Mined Land Reclamation Permit which stated that "reclamation shall be concurrent with mining." The permit bore an expiration date of February 28, 1998.
  6. By letters dated December 26, 1995, directed to the DEC regional office and to the Regulatory Fee Program Unit at the DEC central office, the Respondent requested cancellation of his mining permit effective January 1, 1996. He offered to make the site available for inspection at the Department's convenience. It was acknowledged that the Department needed to inspect the site before the bond could be returned.
  7. By its own terms, the permit expired on February 28, 1998.
  8. By court order entered September 21, 1998, New York Surety Company was declared insolvent with its obligations to terminate thirty days later.
  9. As of February 3, 1999, about one acre of the site appeared to have been disturbed by mining, with some natural regrowth of vegetation taking place.
  10. Based on the information available, it is more likely than not that all the disturbance observed on February 3, 1999, occurred prior to April 1, 1975.

DISCUSSION

The Staff started this action to obtain reclamation. Thus, they have the burden of establishing that reclamation is required. Although their observations indicate that the site was disturbed, their records indicate that the site was disturbed prior to April 1, 1975 (the effective date of the statute). Staff has acknowledged that there is no obligation to reclaim (and, consequently, no obligation to maintain financial security) in this case if the disturbance in question occurred prior to April 1, 1975. Disturbance prior to April 1, 1975, has been corroborated by the letter from the Town of Paris Attorney to the extent possible at this point in time (almost 25 years after the relevant statute was enacted).

Based on the Department's records showing pre-statute disturbance, and Staff's observations that only about an acre was disturbed with some revegetation occurring, it is more likely than not that all the disturbance Staff observed predates the statute.

Therefore, there appears to be nothing to reclaim and, consequently, no obligation to maintain security.

CONCLUSION

The mine site predates the effective date of the law and regulations which require that mined land be reclaimed. Accordingly under the facts presented, since mining has not occurred since the effective date of the regulations, there is no basis to require reclamation.

RECOMMENDATION

This matter should be dismissed.

/s/
Frank Montecalvo
Administrative Law Judge

January 24, 2000
Albany, NY

TO: Commissioner Cahill

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