WA Aggregate Co Inc. - Decision and Order, June 30, 1993
Decision and Order, June 30, 1993
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Alleged Violations of Articles 19 (Air Pollution Control) and
Article 23 Title 27 (Mined Land Reclamation Law) of
the New York State Environmental Conservation Law ("ECL") and Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York by
W.A. AGGREGATE COMPANY, INC.
- Pursuant to a Notice of Hearing and Complaint dated December 1, 1988, an adjudicatory enforcement hearing was held before Administrative Law Judge ("ALJ") Francis W. Serbent, on September 5 and 6, 1990 in the Hamlet of Pennellville, Town of Schroeppel, Oswego County.
- On May 1, 1991, I issued a Decision which declined to take further action on Staff's decision to revoke Respondent's permit, concluding that, since Respondent had not requested a hearing on the matter, Staff's determination to revoke constituted a final agency determination. The Respondent challenged this determination by means of a petition under Article 78 of the CPLR. The matter was settled by Stipulation and Order signed by the Honorable Leo F. Hayes, Justice of the Supreme Court, and dated June 12, 1991 which remanded, for consideration on the merits, the issue of revocation of the Respondent's June 22, 1988 Clark-Dunn mining permit. The Stipulation further orders that the existing permit remains in full force and effect pending the final determination.
- Upon review of ALJ Serbent's Hearing Report (copy attached), I concur with its Findings of Fact and Conclusions except as noted below.
- Staff seeks revocation of Respondent's permit pursuant to 6 NYCRR Section 621.14(a)(5). That regulation allows revocation, suspension or modification of the permit upon a showing of "noncompliance with previously issued permit conditions, orders of the commissioner, any provisions of the Environmental Conservation Law or regulations of the department related to the permitted activity."
- In considering prior instances of non-compliance, the ALJ excluded evidence offered by department staff relating to matters which occurred subsequent to the original Notice of Intent to Revoke. Although that ruling was not challenged, I find that ruling did not properly implement the intent of the aforementioned stipulation. Once the Department Staff put the Respondent on notice of the other charges it sought to use, there was no impediment to amending the Notice of Intent to Revoke. Nonetheless, it would be inefficient to remand the hearing for further fact finding.
- This case therefore is limited to evidence brought forward and considered in my previous Decision and Order in this matter, dated May 1, 1991. That Decision evaluated the Respondent's record with respect to Staff's request that I deny permit applications being processed for other mines owned by Respondent. I refused to take such action on the grounds that the violations were not so severe or pervasive, even when considered in the context of prior violations by Respondent, that they should preclude the Respondent from conducting mining activities in New York State. The corollary, applicable here, is that these identical violations may not logically be the basis for revocation of Respondent's permit.
- Since the Clark-Dunn mining permit has not been revoked the Department should process Respondent's pending renewal application in the normal course of business. However, consistent with my previous Decision in this case with regard to mining applications submitted by this Respondent for other sites, Respondent's prior violations should be considered as a factor in determining whether or not to renew the permit and, if so, on what terms.
NOW, THEREFORE, having considered this matter it is ORDERED that given the complicated procedural history of this action it would be simpler to resolve the issues now pending without prejudice to the Staff's commencement of a new proceeding, if it concludes that such action would be justified.
- Staff's petition to revoke Respondent's permit is denied without prejudice to bring a separate action requesting this relief based on matters not considered in this proceeding.
- Staff is directed to process Respondent's pending renewal application in the normal course of business.
- All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 7, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
- The provisions, terms and conditions of this Order shall bind the Respondent, its officers, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.
NEW YORK STATE DEPARTMENT OF
THOMAS C. JORLING, COMMISSIONER
Dated: Albany, New York
June 30, 1993
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
In the Matter
- of the -
revocation of a mining permit issued pursuant to
Environmental Conservation Law Article 23 Title 17,
New York State Mined Land Reclamation Law
W. A. AGGREGATE CO. INC.
Schroeppel, Oswego County
Case No. R7-0321-88-11
- by -
Francis W. Serbent
Administrative Law Judge
This proceeding considers the matter remanded in accord with the Stipulation and Order signed by the Honorable Leo F. Hayes, Justice of the Supreme Court on June 12, 1991 ("Stipulation"). The remand is to consider the merits of revoking the June 22, 1988 mining permit, #70-85-0251, issued to W. A. Aggregate Company, Inc. ("Permittee") for the Clark-Dunn Mine.
On December 1, 1988, the Department Staff issued a Notice of Intent to Revoke a Permit ("Notice") pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") 421.5 and 621.13. The Notice advises the Permittee of the opportunity to request a hearing, to provide written reasons not to revoke, or both. The Permittee did not ask for a hearing. The Notice was accompanied by a Notice to Deny Permit Applications pursuant to 6 NYCRR 421.5 & 621.13 and a Notice of Hearing and a Complaint issued pursuant to 6 NYCRR Part 622.
Accordingly, a hearing was held pursuant to 6 NYCRR Part 622 and a Commissioner's Decision was issued. The Decision, among other things, holds that the Department Staff's determination to revoke is the final Agency action since the Permittee did not request a hearing. The Permittee initiated an Article 78 proceeding that was eventually resolved through a stipulation. The stipulation provided that this proceeding would be governed by 6 NYCRR 421.5 & 621.14 and for procedural purposes, Part 622. It also provides for either Party to supplement the record for the remanded matter.
The Department Staff submitted a Notice of Motion to Supplement the Record ("Motion") along with a Supplemental Memorandum of Law dated July 22, 1991. The Department Staff proposes to supplement the record with exhibits #7, #8 & #14 that were not received during the hearing and certain derivative testimony. Exhibits #7, #8 & #14 refer to permits at different operations at gravel pits other than the Clark-Dunn pit and not under consideration here pursuant to the Stipulation. Exhibits #7, #8 & #14 refer to different time periods not in the Complaint. Other exhibits are in the record that provide permit data for the time periods of the Complaint. The ALJ's memorandum #4, dated August 27, 1991, deemed these exhibits and derivative testimony to be redundant in the record.
The Motion also sought to expand the record to include additional allegations beyond those in the 1988 Complaint. Pursuant to 6 NYCRR 622.6, any party may amend a pleading at any time by leave of the hearing officer or Commissioner. The ALJ ruling on the motion provided an opportunity for the Department Staff to supplement the record with an amended or additional complaint. An Amended Complaint, dated October 10, 1991 was filed.
The Respondent filed an Answer Statement and Demand for a Hearing, dated October 24, 1991, and a discovery request.
The ALJ's Memorandum #7, dated November 8, 1991, advises that the Amended Complaint contains allegations that are beyond the matter of the permit revocation for the Clark-Dunn pit as referenced in the Stipulation. The Memorandum further advises that even under the presumption that the allegations in the Amended Complaint would be proven as described and the Respondent found guilty as alleged, there would still be no apparent basis to revoke the Clark-Dunn permit.
The Parties were advised that a report to the Commissioner is contemplated based on the existing record. An opportunity for further additions to the record was allowed until December 6, 1991, when the record was closed. No additions were proposed and this report was prepared.
The permit the Department Staff sought to revoke has an expiration date of June 22, 1991. However, the Stipulation and Order remanding the revocation also provides that the permit remain in full force and effect until the Commissioner's final determination on the remand. The renewal application was ordered not to be a part of this remand proceeding.
FINDINGS OF FACT
- W. A. Aggregate Co. Inc., William M. Bargabos, Agent, operates the Clark-Dunn Mine located on land owned by William M. Bargabos and Christine Bargabos on Kline Road in the Town of Schroeppel, Oswego County and is permitted by the New York State Department of Environmental Conservation (the "Department") permit #70-85-0251 effective June 22, 1988 and expiring June 22, 1991 (the "Permit").
- A Notice of Hearing and Complaint, R7-0321-88-11, dated December 1, 1988 alleges violations of the Environmental Conservation Law ("ECL") Article 19 (Air Pollution Control) and Article 23 Title 27 (New York State Mined Land Reclamation Law) by W. A. Aggregate Co. Inc., in the Towns of Schroeppel and Palermo, Oswego County. The Department's Region 7 Staff sought as a remedy, among other things and on a Notice of Intent to Revoke, the revocation of the Permit for the Clark-Dunn Mine.
- After hearing, the Commissioner's Decision of May 1, 1991 (the "Decision") allowed the Region 7 Staff's determination to revoke the Permit to stand absent a discrete request for a hearing.
- The Decision finds that the Permittee operated a screen at another pit without a permit, failed to post certain traffic control signs at other pit sites and started operating another site too early in the day. The Commissioner's finding 6 refers to the Permittee as Respondent and states, in part:
"...the above violations are not so severe or pervasive, even when considered in the context of prior violations by Respondent, that they should preclude the Respondent from conducting mining activities in New York State..."
- The violations that form the basis of the Commissioner's Decision of May 1, 1991 are the only violations considered in this remand proceeding. Although there were opportunities to supplement the record, no additional violations prior to the Notice were offered.
- Finding 6 in the Commissioner's Decision of May 1, 1991 also applies to the Clark-Dunn permit.
- The merits of the issue of revoking the Clark-Dunn Mining Permit have been considered based on the record as developed at hearing and the Commissioner's Decision of May 1, 1991 including the Hearing Report, and it is hereby concluded that there is no reasonable basis to revoke, or to have had reason to revoke the Clark-Dunn mining permit.
- The Clark-Dunn mining permit should not be revoked.