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Amenia Sand and Gravel, Inc. - Ruling 2, August 14, 1997

Ruling 2, August 14, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services, Room 423
50 Wolf Road, Albany, New York 12233-1550

Tel: (518) 457-3468; Fax: (518) 485-7714

Robert P. O'Connor, Administrative Law Judge

E-Mail: rpoconno@gw.dec.state.ny.us

John P. Cahill, Commissioner

August 14, 1997

MEMORANDUM and RULING

To: Service List

Re: Amenia Sand & Gravel, Inc.

DEC Project No. 3-1320-00030/2

I have considered the OVA "Notice of Motion" dated July 31, 1997, along with the responses of the Department Staff and the Applicant dated August 7, 1997 and August 8, 1997, respectively.

First, the failure of a landfill owner/operator to successfully complete closure of a solid waste management facility in accordance with a prescribed schedule does not necessarily have any bearing on the ability of a sand and gravel/hard rock mine owner/operator to comply with the statutory and regulatory criteria which are applicable to a mining operation. In this instance, Amenia Sand and Gravel, Inc. has no outstanding violations of its current mining permit(s) and has not demonstrated that it is unfit to apply for additional permits for mining operations.

Second, the information suggested by the OVA as "new information" regarding the delay in closure of the Harlem Valley Landfill is not "new," but rather a restatement of a continuing problem of which the Department Staff is fully aware. The OVA fully stated its argument concerning the Applicant's alleged record of compliance in its prior motion and in its initial appeal papers.

Third, the Department Staff has proposed two additional draft permit conditions which address the requirements for timely reclamation of mined areas in the event that a permit for the South Amenia hard rock mine is ultimately issued to AS&G.

As the Harlem Valley Landfill closure is a high profile case in Region 3, there is no doubt that the Department Staff will be diligently monitoring the closure activities. Therefore, I request Staff to provide a monthly update to the Service List in this matter regarding the progress of the landfill closure activities. Such updates should be provided within five business days of the end of each month until the Staff is satisfied that the closure is complete.

Thus, in the event the Harlem Valley Landfill Corporation totally abdicates its responsibilities to finalize the closure of the landfill, the issue of record of compliance might conceivably be brought to the fore in the instant case. Presently, however, there is no justification to consider this as an issue for adjudication or to further suspend or delay review and processing of the mining and air permit applications for the AS&G South Amenia facility on the basis of compliance of a different corporation at a different type of facility which is regulated under different sections of the ECL and 6 NYCRR.

As a practical matter, both the Staff and Applicant are correct that because of the time necessary for the Applicant to compile the additional information required by my June 16, 1997 Rulings, transmit the information for review by the Parties, and then subject such information to scrutiny prior to finalizing an Issues Ruling, in all likelihood closure of the Harlem Valley Landfill will have been completed prior to the commencement of any adjudicatory hearing which might be held in this matter.

In view of the above, the OVA renewed Motion of July 31, 1997 is denied in its entirety. This Ruling is not appealable. However, to the extent the OVA has appealed my initial Rulings regarding this same issue, the Commissioner will address this matter in his Interim Decision.

/s/
By: Robert P. O'Connor
Administrative Law Judge

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