Russell A. Weise
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STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION ________________________________________ In the Matter of the Alleged Violation of Article 23 of the Environmental Conservation Law (ECL) of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), ORDER - by - DEC Case No. 1534-2015DK RUSSELL A WEISE, JR., Respondent. ________________________________________ In this administrative enforcement proceeding, staff of the New York State Department of Environmental Conservation (Department) alleges that respondent Russell A Weise, Jr. committed various violations with respect to three gas wells (known as the 3144 Stroebel, Reed 4 and Weise 1 wells1) that he owns in the Town of Sherman, Chautauqua County, New York; and a sand and gravel mine that he owns in the Town of Mina, Chautauqua County, New York (sand and gravel mine). Specifically, as to the three wells, Department staff listed five causes of action, alleging that respondent violated: . 6 NYCRR 551.2(b), for failing to file timely annual well reports for the 2007 through 2014 production years for the three wells (part of first cause of action); . 6 NYCRR 551.4, for failing to maintain adequate financial security for the wells (part of first cause of action); . 6 NYCRR 551.1, for failing to maintain a current organizational report for the wells (part of first cause of action); 1 The API Well Numbers are as follows: 3144 Stroebel -- API Well Number 31- 013-15015-00-00; Reed 4 -- API Well Number 31-013-16510-00-00; and Weise 1 well -- API Well Number, 31-013-17046-00-00. 6 NYCRR 555.3(c), for failing to plug the three wells upon the expiration of the period of abandonment (second cause of action); and . 6 NYCRR 556.2(b), for failing to prevent gas from escaping the wells into the atmosphere (third cause of action). As to the sand and gravel mine, Department staff alleged that respondent violated: . 6 NYCRR 422, for failing to reclaim the sand and gravel mine (fourth cause of action); and . Order on Consent No. R9-20091015-54, for failing to backfill over-excavated areas and reclaim the east and south mine faces of the sand and gravel mine as required by the terms of the order on consent (fifth cause of action). On September 16, 2016, an adjudicatory hearing was convened before Michael S. Caruso, Administrative Law Judge (ALJ) of the Department’s Office of Hearings and Mediation Services, to address these violations. ALJ Caruso prepared the attached hearing report, which I adopt as my decision in this matter, subject to the following comments. As set forth in the ALJ’s hearing report, respondent failed to file an answer to the complaint served by Department staff in this matter and failed to appear for the adjudicatory hearing scheduled in the matter on September 16, 2016, as was directed in the notice of hearing (see Hearing Report at 7 [Finding of Fact No. 31]). Staff orally moved for a default judgment at hearing. The ALJ recommended that Department staff’s motion for default be granted on four of staff’s causes of action, including: -- first cause of action -- failure to file the required annual well reports, failure to maintain a current organizational report, and failure to maintain financial security); -- third cause of action -- failure to prevent gas escaping from the wells into the atmosphere; 2 -- fourth cause of action -- failure to properly reclaim the sand and gravel mine; and -- fifth of the cause of action -- failure to comply with a prior order on consent concerning the sand and gravel mine. See Hearing Report at 8-10. I concur that staff is entitled to a judgment on default on these four causes of action pursuant to 6 NYCRR 622.15. Furthermore, at the hearing, Department staff presented a prima facie case on the merits, and proved its case by a preponderance of the evidence on those four causes of action (see Hearing Report at 10). Respondent Russell A Weise, Jr. has failed to submit reports for the three wells since 2007, and, notwithstanding the efforts of Department staff to obtain respondent’s compliance, nothing in this record indicates that respondent made an effort to address this failure to file the reports (see e.g. Hearing Exhibit N [2012, 2013, 2014 and 2015 correspondence from Department staff to respondent]). Department staff’s proof also demonstrated that respondent Russell A Weise, Jr. failed to maintain adequate financial security, in violation of 6 NYCRR 551.4; failed to maintain a current organizational report, in violation of 6 NYCRR 551.1; and failed to prevent gas from escaping the 3144 Stroebel and Reed 4 wells, in violation of 6 NYCRR 556.2(b) (see Hearing Report at 5-7 [Findings of Fact Nos. 23-29]). With respect to the sand and gravel mine, Department staff’s proof demonstrates that respondent has been operating his mine without a valid permit since April 11, 2009. The proof also demonstrates that respondent failed to reclaim the sand and gravel mine within two years of the expiration of respondent’s sand and gravel mine permit, in violation of 6 NYCRR 422.3(e) (see Hearing Report at 4 [Finding of Fact No. 8]); and failed to perform the remedial and reclamation activities at the sand and gravel mine, in violation of Order on Consent No. R9-20091015-54 (see Hearing Report at 4 [Findings of Fact Nos. 6 and 9]). Department staff, in its papers, sought a penalty of twenty-five thousand dollars ($25,000), and the ALJ recommended that respondent Russell A Weise, Jr. be directed to pay this amount. ECL 71-1307, which would apply to the violations at issue here, provides for a penalty of up to eight thousand dollars ($8,000) for the first day of violation and up to two 3 thousand dollars ($2,000) per day for each day the violation continues. Notwithstanding the fact that Department staff did not prove its second cause of action, based on the record before me the penalty that Department staff requested and the ALJ recommends is authorized and appropriate for the violations found (see Hearing Report at 10-11). In addition, Department staff has requested and the ALJ has recommended various corrective actions. I have considered the recommendations of the ALJ for respondent Russell A Weise, Jr. to: --submit the annual well reports for the 3144 Stroebel, Reed 4 and Weise 1 wells for the 2007, 2008, 2009, 2010, 2011, 2012, 2013 and 2014 production years; --post $5,000 financial security for each well; --submit an updated organizational report; --reclaim the sand and gravel mine; and --repair and produce or plug and abandon each of the three wells. In addition, the ALJ recommends that respondent Russell A Weise, Jr. be directed to reimburse the oil and gas account referenced at ECL 23-1903(1)(a), in accordance with ECL 23-0305(8), with the full amount of any and all expenditures made by the Department for well plugging required for respondent’s wells. The recommendations are appropriate, and I have incorporated them into this order with certain modifications as to the due dates. The due dates will be measured from the service of the order upon respondent. Furthermore, with respect to the engaging of a contractor to plug and abandon the wells, I am providing that Department staff may extend the time period upon good cause shown by respondent Russell A Weise, Jr. Staff has requested that respondent reimburse the oil and gas account for expenditures made by the State for reclamation of the sand and gravel mine. No legal authority has been provided in support of allowing for such reimbursement, and I do not accept this request. Staff has also requested that respondent be directed to cooperate fully with the State and 4 refrain from any activities that interfere with the State, its employees, contractors or agents in the event the State should seek access to respondent’s wells or sand and gravel mine. Respondent is required by law to allow for access and not to interfere with the Department (see, e.g., 6 NYCRR 424.2 [Department access to mines] and 6 NYCRR 550.5 [Department access to oil and gas property]) and staff has not shown that any further directive is necessary here. NOW, THEREFORE, having considered this matter and being duly advised, it is ORDERED that: I. Department staff’s motion for a default judgment pursuant to 6 NYCRR 622.15 is granted on staff’s first, third, fourth and fifth causes of action. By failing to answer or appear in this proceeding, respondent Russell A Weise, Jr. waived his right to be heard at the hearing. II. Department staff’s motion for a default judgment on staff’s second cause of action is denied. III. Moreover, based upon record evidence it is adjudged that: A. Respondent Russell A Weise, Jr. violated 6 NYCRR 551.2(b) by failing to timely file complete and accurate annual well reports for the 2007 through 2014 production years for respondent’s 3144 Stroebel, Reed 4 and Weise 1 wells (API Well Numbers 31-013-15015-00-00, 31-013-16510-00-00 and 31-013- 17046-00-00, respectively) that respondent owns in the Town of Sherman, Chautauqua County, New York. B. Respondent Russell A Weise, Jr. violated 6 NYCRR 551.4 by failing to maintain adequate financial security for respondent’s 3144 Stroebel, Reed 4 and Weise 1 wells. C. Respondent Russell A Weise, Jr. violated 6 NYCRR 551.1 by failing to maintain a current organizational report for respondent’s 3144 Stroebel, Reed 4 and Weise 1 wells.