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Merrell, Peter - Ruling 2, March 5, 1999

Ruling 2, March 5, 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 (FURTHER) CONTINUANCE

(Motion for Order Without Hearing)

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

PROCEEDINGS

On January 22, 1999, I issued an Order of Continuance in this matter. In the Order, I indicated that I needed more information before I could determine Staff's Motion for an Order Without Hearing. In particular, I requested information on what, if any, reclamation is needed to bring the site into compliance with Article 23; and that if reclamation is needed, the amount of financial security Staff requires.

In response to said Order, the Department Staff submitted the February 11, 1999, affidavit of Jerome E. Zaykoski (a Mined Land Reclamation Specialist in Region 6); a letter explaining Staff's position from Dominic R. Cordisco, Esq., Assistant Counsel; and an Affidavit of Service by Mail of the foregoing. Pursuant to the Order, the Respondent was given a week following Staff's submission to file a response. A week has passed and no response has been received.

Staff's Supplemental Information:

Staff indicated that in response to the Respondent's December 26, 1996 letter [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], the Staff sent Respondent a letter on January 8, 1996 which requested the status of reclamation at the mine site. Staff indicated it received no response to this letter.

Staff inspected the mine site on February 3, 1999, and found that approximately one acre had been disturbed by mining activities. Staff determined there had been no grading or vegetation at the facility other than some regrowth through windborne seeding. Staff contends that the one acre area was disturbed since the original permit review in 1989, and notes that at the time of the original permit review, there was no evidence of any excavation at the site.

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.

When I last reviewed this matter on January 22, 1999, Mr. Merrell's earlier response to Staff's motion suggested that the Department needed no reclamation bond because no mining had taken place (i.e., there would be nothing to reclaim). I continued this matter to allow Staff time to investigate and report on this point.

Staff's supplemental information alleges that mining took place after the original permit was issued in 1989. If this is so, there would be no question that the Respondent would be responsible for reclamation, and for maintaining a bond until Staff approved of same. However, the allegation above appears to be based on Staff having "no evidence of any excavation at this site" at the time of their review for the original permit in 1989 (Zaykoski Affidavit, ¶5).

The position that there was no evidence of excavation at the time of the original permit review appears in conflict with the Department's records that Staff previously submitted. The Affidavit of C. Bruce McGranahan (in Staff's original motion papers) at ¶3(c) identifies an attached "Exhibit B" as the original Mined Land Use Plan that the Respondent filed on or about August 21, 1989. Said "Exhibit B," ostensibly prepared by the Oneida County Soil and Water Conservation District, describes the then "present land use" as "an existing gravel pit that was used for a limited source of gravel" (emphasis supplied). Thus, the Department's records contain clear evidence that there was a gravel pit already on the site at the time the permit was originally issued.

Since the 1993 application (see McGranahan Affidavit, ¶3(b) and the Exhibit A attached) indicated that the "Area affected since April 1, 1975" was "None," the gravel pit that existed in 1989 presumably pre-dated the Mined Land Reclamation Act, and, thus, was not subject to the Act's reclamation requirements before the permit was issued.

Staff needs to present information to distinguish the post-permit review excavation from the pre-existing gravel pit. If Staff shows that there was mining activity beyond what existed when the permit was originally sought, the Respondent must either deny it in an affidavit (in which case a hearing on the issue will be scheduled), admit it, or be silent (in these two cases Staff's motion for an Order Without Hearing will be granted). If Staff is 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, Staff needs to clearly explain this. (In this regard it's noted that Special Condition 5 of the permit indicates that "Reclamation shall be concurrent with mining ..."-- implying that no reclamation is needed if no mining takes place. See Exhibit D to the McGranahan Affidavit).

Pursuant to §622.12(c), it is ordered that this matter is continued until April 2, 1999. Staff is to submit the information requested in the last paragraph, to be received no later than March 19, 1999. Respondent is to submit a response, to be received no later than April 2, 1999. A failure by Respondent to submit a response will be construed as agreement with Staff's information.

/s/
Frank Montecalvo
Administrative Law Judge

March 5, 1999
Albany, NY

TO:

Peter Merrell
2414 Mohawk Street
Sauquoit, NY 13456

Dominic R. Cordisco, Esq., Assistant Counsel
NYSDEC Division of Environmental Enforcement
50 Wolf Road
Albany, NY 12233-5500

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