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Popp, Arthur and Elizabeth - Decision, June 29, 1993

Decision, June 29, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Dispute of the Environmental Conservation Law Article 72 Title 10, Mined Land Reclamation Program Fees and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Part 480 et seq. Program Fees

- by -

ARTHUR L. and ELIZABETH POPP
St. Johnsville, Montgomery County,
Permittee

Permit #505-3-30-0294

June 29, 1993

Report

PROCEEDINGS

ARTHUR POPP, on behalf of Arthur L. and Elizabeth Popp, RD #1, Box 120, 383 Murray Road, St. Johnsville, NY 13452 ("Permittee") disputes a program fee for mined land permit #5043-30-0294. The Permittee seeks the Department's assistance for both a refund of the paid fee and an exemption from future fees. Program fees are pursuant to the Environmental Conservation Law ("ECL") Article 72 Title 10 Mined Land Reclamation Program Fees; Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 481 Program Fees: In General; and Part 619 Applicability of Regulations and Statutes. Permits for sand and gravel pits are pursuant to ECL Article 23 Title 27 New York State Mined Land Reclamation Law; ECL Article 70 Uniform Procedures; 6 NYCRR Parts 420 et seq. Mineral Resources (Mined Land Reclamation); and 6 NYCRR Part 621 Uniform Procedures. Official notice is taken of the above regulatory criteria.

The New York State Department of Environmental Conservation ("Department") Regulatory Fee Determination Unit, Box 5973 GPO New York, New York 10087-5973 billed Arthur L. and Elizabeth Popp, seven hundred ($700.00) dollars for the period January 1, 1991 - December 31, 1991. The invoice is #295337650000, referenced (but not filed for the record in this proceeding) as being dated September 23, 1991. The bill was paid on October 22, 1991 with an attached notice of dispute (designated as request #11474) and attached requests for both a refund and an exemption from future annual fees. NYCRR Part 481 includes the prescription for disputing fees. Accordingly, in response to the Permittee's dispute, the recalculation of request #11474 resulted in the Staff's affirmation on November 21, 1991, of the fee of seven hundred ($700.00) dollars per year. The determination of "continued disagreement" was sent to the Permittee and is post marked November 27, 1991.

No acknowledgement or action was taken on the Permittee's October 22, 1991 requests for a refund or exemptions from future annual fees.

The Permittee then requested review of recalculation #11474 and repeated its request for a refund and an exemption from future annual fees. A telephonic conference was held on February 21, 1992 between the Permittee and the Department Staff. There was no agreement, the conference was concluded and the Department Staff prepared a written summary statement. The Permittee signed a statement of disagreement and filed an opposing statement on March 11, 1992. The position of the Permittee is summarized in the comments attached to a stipulation reported below.

Having completed the procedures according to 6 NYCRR 481.9 to challenge the Department's program fee determination, the Staff then initiated steps pursuant to 6 NYCRR 481.9(h) to convene a hearing on the challenge. On January 22, 1993 the Department Staff, i.e. Regulatory Fee and Oil Spill Revenue Bureau, requested a hearing and identified the issue in dispute as "Regulatory - Subject to fee- Paid under protest".

6 NYCRR 481.10(f) indicates, among other things: (1) a prehearing conference will precede the hearing; (2) following the conference the ALJ will determine and advise the parties of the issues; (3) the ALJ will summarize and incorporate into the record any admissions, stipulations or agreements and (4) if, as a result of the conference, the ALJ determines that there are no disputed issues of fact, only issues involving the interpretation or application of either the regulations or article 72 of the ECL, the ALJ shall prepare a report summarizing the material facts and disputed issues and refer the matter to the general counsel for a declaratory ruling, in accordance with 6 NYCRR Part 619.

The Department Staff agrees with the Permittee on the facts in this dispute. A stipulation of facts was prepared and signed by the Department Staff on August 25, 1992. The Permittee corrected the stipulation, provided additional comments and signed the stipulation on August 30, 1992. The Permittee repeated its request for a refund and its request for an exemption from future annual fees. No acknowledgement or action was taken on the Permittee's August 30, 1992 requests for a refund or exemptions from future annual fees. The Department Staff does not contest or respond to the Permittee's correction or the additional comments.

The stipulation that came with the hearings request meant that a prehearing issues conference would not be necessary to determine issues for adjudication. There is no apparent issue about the basis for the program fee or how it was calculated.

Stipulation of facts

  1. Permittees reside at RD#1 Box 120, St. Johnsville, NY 13452 (corrected by the Permittee to read:

    "Arthur Popp, Son, resides at Box 115 RD1 St. Johnsville, NY 13452. Elizabeth Popp, mother, resides at Box 120 RD1 St. Johnsville, NY 13452.")

  2. Permittees are the owners of a certain mine in St. Johnsville, Montgomery County, New York, which mine affects five acres of land or less. (corrected by the Permittee to read:

    "Elizabeth Popp is the owner of the mine at the present time. When the land was sold to the Village of Canajoharie, the right to mine sand was reserved for Leo Popp, my father and Elizabeth Popp, my mother and then to Arthur Popp, my father passed away.[sic] The mine is in Futon [sic] County, Town of Ephratah.")

  3. Permittees held a mined land reclamation permit (#504-3-30-0294) on January 1, 1991, which expired on March 18, 1991.
  4. Permittees renewed their mined land reclamation permit and currently hold a mine land permit (#504-3-30-0294) which was issued by the Department of Environmental Conservation ("Department") on August 16, 1991.
  5. The Department assessed a mine land reclamation fee for 1991 in the amount of $700.00 (invoice #33765 dated September 23, 1991), pursuant to Environmental Conservation Law ("ECL") Title 10, Mined Land Reclamation Program Fees.
  6. Permittees forwarded $700.00 on October 16, 1991, as payment under protest of invoice #33765 dated September 23, 1991.
  7. Permittees dispute the $700.00 regulatory fee assessed by the Department on the grounds that the regulatory fee was assessed after Permittees' three year mining permit was issued.
  8. Permittees allege that they will not have the money to reclaim the mine if they are assessed a yearly regulatory fee of $700.00 and therefore have requested that no fee be assessed until the mine is reclaimed in 1994.
  9. Permittees request that the $700.00 paid under protest be returned to respondents.

Additional comments to the Stipulation by the Permittee (Summarized):

The mining permit was renewed in 1991 expecting it to be the last permit because reclamation would be completed within the three term of the permit. Reclamation costs are anticipated at approximately $1,500.00 and funds were set aside for that purpose. The mine activity since 1991 consists of implementing the reclamation plan by the clean up of sand piles on the mine floor. The sand was sold for a few hundred dollars and the income from the mine is incidental to reclamation.

If the Permittee was actively mining and selling sand, the $700 would be easy to pay per year just by raising the unit price per cubic yard.

The Permittee has an existing fund set aside for reclamation that would now be required as a source of money to pay for annual program fees. The $700 program fee was started when the Permittee's mining income was incidental to reclamation. A refund of the paid fee is requested and also an exemption from annual fees. The $700.00 bill for 1992 is pending.

Discussion of the Permittee's Comments and Position

Current Mine Activity

Even though there are or would be only minor sales of sand apparently incidental to reclamation activities during the term of the permit, ECL 72-1005 states that persons holding permits, or approvals or subject to regulation under this title are liable for annual program fees. A program fee must be paid unless the permit is surrendered, revoked or is otherwise deemed out of existence, and the activity of the former Permittee is indeed not subject to regulation under ECL Art. 72 Title 10.

Set Aside Money is for Fees Instead of Reclamation

The Permittee is responsible for reclamation. ECL 23-2715, Financial Security for Reclamation, has various provisions to provide reclamation and to recover related costs, including liens on assets and/or suits to recover reclamation costs.

Reclamation, Refund and Exemption

The Mined Land Reclamation Program Fees criteria requires every permittee to pay program fees and there are no provisions for refunds or exemptions. However, consideration may be possible in a different proceeding or if ordered, by the expansion of this proceeding by joining it with other actions or matters. The following are noted.

A permit may be surrendered. The Permittee would not be responsible for payment of future fee obligations if it no longer had a permit and is able to surrender its mined land permit #5043-30-0294. It should be noted, however, that ECL 23-2711.1 mandates a permit for any operator who mines more than one thousand tons (or more than seven hundred fifty cubic yards) of minerals from the earth within twelve successive calendar months. The activities at the mine that may or may not require a permit have not been evaluated on this record. There are no provisions in this proceeding pursuant to ECL Art. 72 Title 10 to evaluate any activities beyond program fees.

A Permit may be revoked. Although a request for revocation of can not be considered in this proceeding or based solely on this record, 6 NYCRR 621.14 does provide for an interested party (presumably including the Permittee) to request a permit to be revoked. It is not known if the permit(s) could be revoked to sometime prior to January 1, 1991 or that such a revocation would enable a refund of fees paid.

There are various grounds for revocation that include the change is scope of the project, as may be the case here, or newly discovered material information or a change in environmental conditions or, as here, a change in applicable law or regulations since the issuance of the existing permit.

Consideration of limited mining activity may be appropriate grounds for permit revocation. For example, the selling of sand only from stockpiles or tailings from prior activities or activities incidental to reclamation may not require a permit and may enable a permit revocation, depending on certain details. The Department has ruled that a mining permit is not required for removal of tailings from a previous excavation, since tailings are the result of an industrial process and thus not found in natural deposits in or on the earth. (DEC Declaratory Ruling 23-06, Gerentine & Cutrone Sand and Gravel, Inc.). The above factors may be appropriate considerations during any subsequent proceedings or expanded proceedings as may be ordered.

CONCLUSIONS

  1. Pursuant to 6 NYCRR 481.10(f)(4), in the absence of disputed facts, an issue involving the interpretation or application of the ECL Article 72 is a matter for the General Counsel for a declaratory ruling pursuant to 6 NYCRR Part 619. It is apparent to the ALJ that the fee basis, computation and determination is appropriate in this case for mined land permit #5043-30-0294. There are no issues involving the interpretation or application of the ECL Article 72 Title 10 and 6 NYCRR Part 481 in determining the fee to bring before the General Counsel for a declaratory ruling.
  2. The Permittee may exercise its discretion in pursuing the revocation and/or surrender of its permit in accordance with the ECL Article 70 and 6 NYCRR Part 621 Uniform Procedures.

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

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