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Declaratory Ruling 72-13: RecOil Inc.

State of New York
Department of Environmental Conservation

In the Matter of the Petition of
RecOil Inc.
for a Declaratory Ruling

Introduction

This matter has been referred by the New York State Department of Environmental Conservation (the "Department") Office of Hearings and Mediation Services to the Department's Office of General Counsel pursuant to 6 NYCRR §481.10(f)(4) for the issuance of a declaratory ruling pursuant to State Administrative procedure Act §204 and 6 NYCRR Part 619. RecOil, Inc. ("RecOil") is disputing a portion of the annual Regulatory fee assessed for its waste transporter permit for the Billing period October 1, 1999 to September 30, 2000. The issue to be decided is whether, under the facts described below, the fulL Amount of the fee may be legally imposed upon RecOil for a permit which was renewed by RecOil's request but discontinued by recOil's request prior to the expiration of the renewed permit.

Declaratory Ruling

RecOil is liable for the full payment of the waste transporter Fee. ECL §72-0502 states that "all persons required to obtain a permit, certificate or approval pursuant to the waste transporter permit requirements . . . shall submit annually to the department a fee in the amount to be determined as follows:... ." the Department required the full annual fee as mandated by the statute.

Statement of Facts

The relevant facts are as follows:

  1. In August 1999, RecOil, Inc. filed a renewal application with the Department for a waste transporter permit. The renewaL Application included a request to add two more vehicles.

  2. On August 31, 1999, the Department issued a waste transporter permit (PA-305) to RecOil for three vehicles. The permit category is "industrial," and the effective dates of the permit were from October 1, 1999 to September 30, 2000.

  3. On October 18, 1999, the Department issued invoice number 52691, which assessed annual regulatory fees in the amount of $900.00 based on three waste transporter vehicles. The invoice, which was sent to Mr. Avery's attention, was for the billing period from october 1, 1999 to September 30, 2000. According to the invoice, the permit issuance date was October 14, 1999.

  4. Subsequently, RecOil paid $75.00 of the original assessed $900.00 regulatory fee. On November 16, 1999, Mr. Avery, on behalf Of RecOil, filed a Fee Recalculation Request Form with the Department. The disputed portion of the $900.00 regulatory fee is $825.00.

  5. As part of its recalculation request, RecOil stated that it wanted to cancel its waste transporter permit effective November 14, 1999.

  6. By letter dated December 29, 1999, the Department notified recOil that its waste transporter permit had been discontinued Effective November 14, 1999. As a result, RecOil's waste transporter permit (PA-305) was in effect from October 1, 1999 to November 14, 1999.

Rationale

RecOil is contending the payment of the entire annual fee for a Permit that RecOil renewed and then discontinued approximately one month after its renewal. They are basing their position on what they say is just and fair to companies in such a situation.

ECL Article 72, Title 5 and its implementing regulations, 6 NYCRr part 484 set forth the Waste Transporter Program Fees. ECL §72-0502 provides as follows:

  • All persons required to obtain a permit, certificate or approval pursuant to the waste transporter permit requirements set forth in title three of article twenty-seven of this chapter shall submit annually to the department a fee in an amount to be determined as follows: a. In the case of persons permitted pursuant to title three of article twenty-seven of this chapter to transport industrial-commercial waste or low-level radioactive waste:

    (i.) $500.00 for the first vehicle permitted pursuant to title three of article twenty-seven of this chapter; and
    (ii.) $250.00 per each additional vehicle permitted. [Emphasis added.]

    Subdivision 3 of ECL §72-0201(1)(a) states that:

    Notwithstanding any general or special law to the contrary, all persons who require a permit or approval pursuant to a state environmental regulatory program, or who are subject to regulation under a state environmental regulatory program shall submit a fee as authorized under this article annually to the Department, on such forms and at such times as specified by the Department. [Emphasis added.]

Additionally, the regulations pertaining to program fees in general provide that:

  • A person who must pay a program fee pursuant to section 481.2 of this Part is obligated to pay the entire amount of the invoiced program fee. 6 NYCRR §481.5(a). [Emphasis added.]

The above statutory and regulatory language makes it clear that the Department is authorized to obtain the entire amount of the annual fee. There is no section that speaks of the need or authority to prorate a fee according to the usage or cancellation by the Permittee. The only section that even mentions proration is §72-0201(3) and this does not pertain to waste transporter permits, as the billing date for waste transporter permits coincides with the permit's issuance date. The issue Concerning fee liability for permits not used has been raised in J.F. Lomma, Inc., Declaratory Ruling 72-04 (1989), Philip A. Desborough, Declaratory Ruling 72-08 (1994), and John H. Newell Declaratory Ruling 72-11 (1996). All three of these declaratory rulings held that the statute required payment of annual fees despite the fact that the permit may not have been used. The program fee applies to one obtaining, rather than using, a permit. See John H. Newell, citing J.F. Lomma, Inc (DEC 72-04).

The Department has simply required the fee authorized by the statute, which is the entire annual fee. There is nothing in the statute authorizing or requiring the proration of fees upon the Cancellation of a permit by the permittee's request or the Department's ability to vary such fee. There is no showing of unfairness in the application of the law. RecOil could have terminated its liability for the annual fee by not renewing its permit. The statute is clear in requiring the payment of an annual fee by those required to obtain a permit, and RecOil's request for renewal and the addition of vehicles to their permit rendered them within the category of those requiring a permit. As noted in John H. Newell [DEC 72-11] regarding the mined land reclamation fees, "[t]he statutory scheme of ECL Article 72, Title 10, provides clear Guidelines regarding the assessment of ... program fees and should be interpreted under a strict construction and not extended by implication. To rule otherwise would encourage situations as wE have here where the Permittee would determine when and under what Circumstances to pay program fees." The Department acted Within its mandated statutory obligations and RecOil was legally required to pay the annual fee that was assessed.

Dated: May 25, 2001
Albany, New York

James H. Ferreira

General Counsel

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