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Ritchie, Jr., William M. - Ruling, July 5, 2001

Ruling, July 5, 2001

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of an Alleged Violation of Article 23 of
the Environmental Conservation Law of the State
of New York and Part 422 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the
State of New York by

WILLIAM M. RITCHIE, JR.,
Respondent

RULING ON MOTION
FOR ORDER WITHOUT HEARING

Case No. R5-20000925-124

SUMMARY

Staff of the Department of Environmental Conservation (the "Department Staff") moved for an Order Without Hearing against William M. Ritchie, Jr., (the "Respondent") for a violation of the mineral resources laws and regulations which allegedly occurred at a site in Washington County. For the reasons set forth herein, the motion is denied and a pre-hearing conference and hearing will be scheduled to adjudicate the cause of action articulated in the Complaint.

PROCEDURAL HISTORY

On January 9, 2001, the Department Staff served a Notice of Hearing and Complaint upon the Respondent alleging a violation Section 422.3(e) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") for failure to reclaim all land affected by mining operations at the Respondent's sand and gravel mine located off County Route 17 in the Town of Granville, Washington County, New York, within two years of the expiration of the permit issued to the Respondent for said mining operation. The subject mining permit, DEC Permit No. 5-5332-00014/00001-1, was issued April 13, 1993, and expired on August 19, 1996.

By letter dated January 26, 2001, the Respondent challenged the propriety of the action commenced against him and indicated his desire for a hearing on the issue raised in the Complaint. Department Staff deemed the Respondent's letter of January 26, 2001, as an Answer to the Complaint.

On April 6, 2001, Department Staff served the instant Notice of Motion for Order Without Hearing alleging a violation of 6 NYCRR Part 422, asserting that no triable issue of fact existed with respect to this matter, and seeking an Order finding Respondent in violation of Part 422, directing him to reclaim the subject mine as required by the permit previously issued and directing the payment of a civil penalty in the amount of $5,000.

By letter dated May 9, 2001, Respondent expressed his opposition to the motion by asserting that the mine in question had been reclaimed and pointing out that he had provided the Department with a performance bond pursuant to 6 NYCRR Part 423 at the time he was granted the permit in the amount of $6,000.

POSITIONS OF THE PARTIES

Department Staff

According to the factual allegations of the Complaint as well as the Motion for an Order Without Hearing, the Department Staff is alleging that Respondent failed to reclaim the site of the mining operation permitted under DEC Permit No. 5-5332-00014/00001-1 within two years of the cessation of mining operations at the site which, for the purposes of this matter, occurred upon the expiration of aforementioned permit on August 19, 1996. Department Staff is therefore seeking an Order (1) finding the Respondent in violation of applicable regulations for failure to reclaim the mine site within the mandated two year period, (2) assessing a civil penalty in the amount of $5,000, and (3) requiring the Respondent to reclaim the mine site in accordance with the reclamation conditions set forth in the permit issued to him in 1993.

Respondent

By his letters dated January 26, 2001, and May 9, 2001, Respondent asserts that he has reclaimed the mine in question. Moreover, he argues that his reclamation efforts are equivalent to, and perhaps better than, reclamation efforts at other mining sites in the area which have been approved by the Department. He also maintains his desire for a hearing on this matter.

DISCUSSION OF RULING

Section 622.12 of 6 NYCRR governs motions for Order Without Hearing in Department of Environmental Conservation enforcement hearings. Subsection (d) of section 622.12 provides that, "A contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgement under the CPLR in favor of any party.... Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the commissioner pursuant to section 622.18 of this Part."

Subsection (e) of section 622.12 further provides that, "The motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing....".

Section 3212 (b) of the CPLR provides, in part, that a motion for summary judgment shall be granted, "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

Upon a review of the application submitted by Department Staff as well as the responses received from the Respondent, it is clear that there exist substantive disputes of facts in this matter sufficient to require a hearing. These include, but are not limited to, the nature and extent of any reclamation efforts undertaken at the mine site and the period of time after expiration of the Respondent's permit during which these reclamation efforts were accomplished. Moreover, facts are in dispute that would be relevant to the appropriate penalty to be imposed if a violation is found with respect to the cause of action articulated in the Complaint.

RULING

The Motion for Order Without Hearing is denied and a hearing will be scheduled with respect thereto. The Complaint in this matter shall be construed to allege one cause of action for a violation of 6 NYCRR 422.3(e).

Certain facts which are relevant to the adjudication of the aforementioned cause of action are not in dispute and are deemed to be established for all purposes in the hearing. They are identified in the Findings of Fact below.

FINDINGS OF FACT

1) On April 13, 1993, the Department issued the Respondent DEC Permit No. 5-5332-00014/00001-1, authorizing the operation of a sand and gravel mine located off of County Route 17 in the Town of Granville, Washington County, New York.

2) On Page 1 of the aforementioned permit is the following statement: "By acceptance of this permit, the permittee agrees that the permit is contingent upon strict compliance with the ECL, all applicable regulations, the General Conditions specified (See Reverse Side) and any Special Conditions included as part of this permit."

3) Page 4 of the aforementioned permit delineates certain Special Conditions regarding reclamation of the site as follows:

RECLAMATION CONDITIONS

  1. All waste generated by mining activity, including trees, stumps, brush and rock rubble must be buried at the mine site or otherwise disposed of in a manner approved by DEC.
  2. All mineral stockpiles, mining equipment, mineral processing equipment, and other personal property must be removed from the mine site.
  3. No area of the reclaimed mine site will exceed a slope of 1:2 (260).
  4. A minimum of 6" topsoil material capable of supporting vegetative growth must be spread over all areas to be reclaimed.
  5. Revegetation of the mine site must be established over a minimum of 75%. Lime, fertilizer, seed and mulch must be applied to reclaim the mine site in accordance with the approved mined land use plan.
  6. Final reclamation must commence immediately upon the completion of mining.

4) The aforementioned permit was not renewed and expired on August 19, 1996.

HEARING

A hearing will be scheduled to take place at the Department's Region 5 Office in Warrensburg, New York, regarding the allegations contained in the Complaint. I will contact the parties to determine a date for the hearing. Following the hearing, an Order regarding this matter will be issued pursuant to 6 NYCRR Part 622.

____________/s/____________
Richard R. Wissler
Administrative Law Judge

Albany, New York
July 5, 2001

TO: Christopher A. Lacombe, Esq.
William M. Ritchie, Jr.

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