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Dailey - Interim Decision, June 20, 1995

Interim Decision, June 20, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010
In the Matter

- of the -

Application for a Mined Land Reclamation Permit, a Permit to Construct an Air Contamination Source;
and a State Pollutant Discharge Elimination System Permit, pursuant to
Environmental Conservation Law (ECL) Articles 23, 19 and 17; and Title 6 of
the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR),
Parts 420-423, 200-250, and 750-758

- by -

WILLIAM E. DAILEY, INC.

DEC Project No. 4-3828-00058/00001-0

INTERIM DECISION

June 20, 1995

Interim Decision of the Commissioner

This Interim Decision is in relation to appeals of the April 5, 1995, Issues Ruling in the Matter of the Application of William E. Dailey, Inc. Appeals were filed by the Applicant, the Rensselaer County Environmental Management Council (County), the Bennington County Regional Commissioner (BCRC), the Town of Hoosick (Town), Whipstock Hill Preservation Society (WHIPS), Stein I. Soelberg (Soelberg), Carol Haerer (Haerer), and Herb Anderson (Anderson). All except BCRC, Haerer, and the Town replied to the appeals. Paul Plante, PE (Plante) filed a reply only. Transitor Electronics withdrew from the proceeding. Department Staff did not file an appeal or a reply.

Introduction

The Department is lead agency under SEQRA. Because of the lead agency status, the Department may adjudicate issues concerning the sufficiency of the DEIS provided they are substantive and significant. 6 NYCRR 624.4(c)(6)(b). The Department, as well as other involved agencies, must also provide that identified adverse impacts be avoided or reduced to the maximum extent practicable to make the findings statement. 6 NYCRR 617.9.

To raise an issue, a prospective party must demonstrate there is sufficient doubt about an applicant's ability to meet the statutory or regulatory criteria such that a reasonable person would inquire further. 6 NYCRR 624.4(c)(2). The proposed issue to be adjudicated must have the potential to result in the denial of a permit, a major modification of the project or the imposition of significant permit conditions. 6 NYCRR 624.4(c)(3).

Where the ALJ finds information that creates a doubt about the applicant's ability to meet all pertinent criteria, an adjudicable issue is raised. Review of such decisions is based upon whether the ALJ properly applied the substantive and significant issue test. Where the ruling turns on a issue of law or policy, the Commissioner may give a more probing review. See, In the Matter of Hyland Facility Associates, (Interim Decision, August 20, 1992).

Wetland Issues

WHIPS, Mr. Soelberg, Rensselaer County and the Town all allege the existence of certain areas which meet the jurisdictional requirements for State or federally regulated wetlands. All but the County have made offers of proof to so establish, while the County's offer of proof goes to establish harm to the wetlands on- site through draining because of the proposed mining operation.

ALJ Montecalvo ruled that "whether or not areas on or near the project site can qualify as regulated 'wetlands' under New York State or Federal statutes or rules are not issues to be adjudicated in this proceeding." Ruling 9.

The ALJ reasoned that impacts on the wetlands on the site and nearby are not an issue because these wetlands are not currently included on the Department's Rensselaer County wetlands map, and therefore it is unnecessary to determine whether they are inter- connected or large enough to be jurisdictional. The ALJ set forth the Department's jurisdiction under ECL Article 24 and how it could be exercised.

The ALJ found that there is a dispute of fact as to whether the wetlands in the area are connected, and if so, whether they would qualify for regulation under the statute. The intervenors have made a sufficient showing to take a closer look at this issue and determine whether there are jurisdictional wetlands to be affected by the project. It is appropriate to examine whether these wetlands are, in fact, connected and meet the 12.4 acre jurisdictional threshold.

It is apparent that Staff at one point at least also believed the wetlands were jurisdictional. Staff notified the Applicant by letter dated April 18, 1994, that improvements to Farmers Inn Road may trigger an amendment to the wetlands map, acknowledging that inclusion in the current map is not determinative. See, Monroe County/Mill Seat Landfill, (Interim Decision, July 2, 1991).

If it is established that there are jurisdictional wetlands which will be negatively effected, then the regulations (6 NYCRR 664.7) foresee asserting jurisdiction prior to any further activity on the site which could harm the wetland. As this issue is now before me, administrative efficiency demands the matter be addressed by Staff now rather than later. If the wetlands are jurisdictional, landowners will be notified and an Article 24 freshwater wetland permit would be required for further development of the site.

There is also a question of whether the wetlands are federally regulated, and their status under that program. In addition, regardless of wetland size, federally regulated wetlands, under some conditions, may require a federal permit under 404 of the Clean Water Act. There is a joint federal-state permit process under which the Department issues a 401 certification, if needed, for compliance with the Clean Water Act. The question of whether the Applicant needs a 401 certification should be answered by Staff to ensure administrative efficiency in moving the process forward.

I find that there are issues of fact to be adjudicated with regard to the wetlands in the project area; specifically, whether there is a jurisdictional wetland system and consideration of the project for a permit under Article 24. I direct the Staff to determine this matter expeditiously and report to the ALJ with copies to all parties. If the wetlands are jurisdictional, such jurisdiction may be asserted by notifying landowners. Map amendment follows, but in the alternative, the parties could stipulate to the wetland boundaries and proceed with the administrative process. Such action must commence in short order and the results be evaluated with respect to the road work as addressed below.

In establishing draft permit conditions to protect wetlands less than 12.4 acres absent their inclusion on the Rensselaer County Freshwater Wetlands Map, Department Staff recognized that it has the authority under SEQRA to impose permit conditions to mitigate adverse impacts upon wetlands. This SEQRA authority is unrestricted by the scope of the Department's regulatory jurisdiction under Article 24. I find that the parties have raised an issue under SEQRA as to whether the EIS adequately addresses the impacts to wetlands from the mine project and from required improvements to Farmers Inn Road. Therefore, the Town is a party and an involved agency under SEQRA by virtue of its wetlands jurisdiction as well as its authority over Farmers Inn Road.

Obligation of the Lead Agency to Address Traffic Impacts

While acknowledging the concerns and offers of proof by the petitioners Town of Hoosick, Mr. Soelberg, the County and WHIPS regarding the effects of this project on Farmers Inn Road and Route 7, ALJ Montecalvo ruled that because the Town and the New York State Department of Transportation ("DOT") are the agencies with authority over traffic matters, those issues could not be addressed in these proceedings. See, Ruling 14. These parties have all appealed from the ALJ's ruling and have argued that such conclusion is contrary to SEQRA. The Applicant responds in its reply brief that the conditions of Farmers Inn Road reside solely within the Town's jurisdiction and that because improvements to this road resulting from the project may not occur for some time, any attention to the impacts of such work would be speculative.

In examining an action under SEQRA, the lead agency must consider all the activities and steps that form a part of or result from the project. 6 NYCRR 617.3(k). Regardless of the expertise that it may possess, SEQRA envisions that the lead agency will tap the reservoir of existing public information and expertise.

The purpose of circulation of the EIS is to ensure that the agencies with the necessary expertise provide their analysis with respect to the potential environmental impacts. However, the lead agency cannot fail to exercise its judgment with respect to the significance of impacts, preparation of an EIS and a determination on mitigation of those effects. The fact that other agencies may have independent obligations to analyze the potential impacts of the facility has no bearing on DEC's own obligation, as lead agency, to analyze the existing areas of environmental concern. See, Golten Marine Co. v. DEC, 193 AD2d 734 (2d Dep't 1993).

Farmers Inn Road

There is no question that an increase in traffic levels is a potential effect that must be considered in review of a SEQRA action. It is specifically addressed in the regulatory criteria for determining significance of an action. 6 NYCRR 617.11(a)(1). In this case the Applicant correctly identified the use of Farmers Inn Road and Route 7 by the proposed Dailey Mine as issues to be considered in its analysis of the project's impacts. See, DEIS, pp. 27-29, 64-65, 100-102, 126; Appendix VII to DEIS, Traffic Engineering Report, Jim Napoleon & Associates, April 1994 ("Napoleon Report"). There is no disagreement with respect to the need to upgrade Farmers Inn Road in order to support the loadings caused by site-generated traffic. See, Napoleon Report, pp. 8-9. And despite contentions raised in the Applicant's most recent filing, the Napoleon Report recommends that this work be done prior to "initiation of transport operations at the mine site." Id. at 9.

However, as recognized by the ALJ, the parties have raised factual issues regarding the upgrading of Farmers Inn Road and the environmental impacts associated with that work. The Department may adjudicate issues concerning sufficiency of the DEIS provided they are substantive and significant. 6 NYCRR 624.4(c)(6)(b). These proceedings stand in contrast to those where the petitioners did not offer adequate proof with regard to the proposed issue of traffic impacts. See, e.g., In the Matter of Gernatt Asphalt Products (Supp'l Issues Ruling, Oct. 5, 1994) or where road work was not in proximity of the site. See, In the Matter of Hyland Facility Associates, (Interim Decision, August 20, 1992).

Through its consultant, Standard Engineering Corp., the Town, which is the acknowledged agency with authority over the road, has offered expert proof with respect to the inadequacy of Farmers Inn Road that is at variance with the Applicant's analysis. In addition, to support claims that road improvements will negatively affect the wetland, Rensselaer County has offered proof by its expert, Tom Sanford of the County Soil and Water District, regarding portions of Farmers Inn Road that are built on hydric soils. WHIPS has offered evidence by Kenneth H. Kaliski of Resource Systems Group, who disputes the analysis of the Applicant with respect to the adequacy of Farmers Inn Road and the nature of work required to sustain the expected mine-related traffic.

While DOT does not have jurisdiction over Farmers Inn Road, in comments submitted by a letter from Richard W. Carlson, P.E., of DOT Planning & Program Management dated February 13, 1995, regarding DOT's review of the Dailey mine project, Carlson noted that ". . . the current width and alignment of Farmers Inn Road is less than desirable for significant volumes of truck traffic" and ". . . the addition of 200 trucks a day may significantly affect the speed and comfort level of the other traffic using this facility." Finally, in a letter dated April 18, 1994, the Department Staff requested that the Applicant prepare a mitigation plan for the road upgrade.

In contrast to the facts in some other cases such as In the Matter of Wilmorite, Inc. (Interim Decision, October 7, 1988), where DOT chose not to apply for party status in the SEQRA hearing, here the entity that is responsible for the road, the Town, is ready and willing to participate in the adjudicatory session to put forward its proof with respect to the traffic impacts. See, In the Matter of Falke's Quarry, (Decision, March 12, 1991). Based upon the Department's obligation to determine in the FEIS the mitigative measures, if any, required with respect to the impact of mine transport on this road, there is a substantive and significant issue raised and I grant full party status to the Town and the County, and direct the ALJ to include this issue in the schedule for the adjudicatory hearing.

Since the Town is a party to this proceeding, adjudicating the improvements to Farmers Inn Road provides a record for SEQRA purposes. The Town says the road, in its present condition, may not be used by mining vehicles. By virtue of seeking party status in this proceeding, the Town implicitly agrees to be bound by the outcome, including the FEIS, with regard to the upgrading of the road.

Route 7

The information in the DEIS is summarized here as background to help understand the reasoning in resolving this issue. In letters dated October 24, 1994 and February 13, 1995, DOT, the agency that is responsible for Route 7, presented its analysis of the mine's potential effects on that State highway, finding that the additional 200 truck trips per day generated by the mine should not significantly affect the number of accidents on the proximate section of Route 7. However, in its February 1995 comments, DOT Engineer Carlson admitted that the sight distance at the intersection of Farmers Inn Road and Route 7, while meeting minimum standards, is less than the desirable sight distance for trucks entering a rural State highway having an operating speed of 60 miles per hour. Moreover, DOT personnel stated in both letters that any improvements to Farmers Inn Road in the proximity of Route 7 and within the State right-of-way would require DOT approval.

In its petition for party status, WHIPS included an analysis of traffic impacts of the proposed Dailey Mine on Route 7 and Farmers Inn Road. See, Exhibit K to WHIPS' petition. The opinions expressed in this document call into question the Applicant's treatment of traffic, including sight distance; the Department does not have the benefit of DOT's response to this analysis and comment.

Thus, prior to the conclusion of this hearing, I require that Department Staff provide to the Commissioner of Transportation, for his agency's technical review and detailed comment, WHIPS' submissions and any others regarding effects of mine-generated truck traffic on Route 7 or Farmers Inn Road that were received by the Department as part of these proceedings, including those subsequent to the February 13, 1995 DOT correspondence. As the agency with expertise and potential involvement in the permitting of activities related to the project, more extensive involvement and input from DOT are needed to supplement the EIS in this proceeding and to enable DEC as lead agency to make its findings statement regarding Route 7, as well as to ensure that DOT is able to conduct a comprehensive review and mitigation of potential traffic impacts under its jurisdiction.

There is no adjudicable issue respecting Route 7. SEQRA does not require the Department to use the adjudicatory forum for purposes of resolving all comments related to the DEIS. Thus, where the agency with the traffic expertise and jurisdiction over impacts related to a State highway has provided its analysis in the SEQRA process, an adjudicatory hearing on this issue is not required. Instead, I find it sufficient for SEQRA purposes that DOT provide its detailed response to the alleged defects as described above and set forth in the intervenors' petitions.

The Bennington Bypass Project

Two matters warrant analysis: whether the Applicant's mined land-use plan needs to discuss the Bypass (6 NYCRR 422.3); and whether the DEIS should be supplemented to take into account various potential routings and the environmental impacts depending on the Bypass route selected. The ALJ ruled there were no substantive and significant issues and no further supplementation to the DEIS is required. Rulings 1 and 2.

The Route 9 Bypass is a joint project of the Vermont Agency of Transportation ("VAOT") and the DOT, to construct an alternate traffic route around Bennington, VT. The project has been in the planning stage for over 30 years. In 1991, a Final Environmental Impact Statement ("FEIS") was approved by VAOT, DOT and the Federal Highway Administration. However, construction plans have not been finalized, and the precise routing of the Bypass cannot be determined at the present time. DOT is in the process of preparing a record of decision. Preliminary plans are scheduled to be submitted in the fall of 1995.

On August 24, 1994, VAOT and DOT held a joint public hearing on the "Preferred Alternative" alignment for the Bypass and in November, 1994, published their official determinations and findings indicating that two design alignments were under evaluation, both of which would route the Bypass through or near the proposed mine site. The findings also indicated that acquisition of a right-of-way was scheduled to occur in February 1995. The Applicant has commenced legal action regarding a proposed condemnation of its property.

The Applicant maintains the analysis presented in its DEIS is reasonable given the present uncertainties regarding the Bypass. With regard to the requirement of the mined land-use plan to take into account the Bypass, should it occur, the Applicant responds that no changes are necessary until the Bypass route is selected. According to the Applicant, only when the Bypass route is selected, and then in concert with timing considerations such as where the Applicant intends to mine and the proposed route, can the Applicant be expected to adjust its mined land-use plans to fit the circumstances dictated by the Bypass.

I find the extent to which the DEIS addressed the proposed Bypass to be reasonable given the circumstances here. The environmental impacts to be addressed can only be discussed insofar as the plans for the Bypass have been formalized.

I find no issue with respect to the purported failure of the mined land-use plan to address Bypass alternates. As discussed above with regard to the DEIS, the mined land-use plan cannot take into consideration the Bypass until the route is known.

In the event the Bypass affects the current mined land-use plan, the Applicant would need to seek a modification once the Bypass route was selected and condemnation completed. To ensure an efficient administrative review if the property is condemned, the Department must be made aware of such occurrence in order to assess what action is necessary with respect to the plan. The permit must be amended to add the requirement that the Applicant notify the Department accordingly.

For the reasons discussed above there are no adjudicable issues with respect to the Bypass.

Staff's ECL 23-2711 Compliance

In dispute is compliance with ECL 23-2711, which requires that upon receipt of a complete application, the Department shall send a notice by certified mail to the local government. The notice of complete application must state whether the application is for a major or a minor project. Thereafter, the local government has 30 days to propose permit conditions regarding matters of local concern, which after Department review, may be included or excluded in the draft permit.

Here, the Region delivered by hand instead of by certified mail the notice of complete application and application materials. The notice did not indicate whether the project was 'major' or 'minor', and the notice did not inform the Town, nor is it required to, of its right to make determinations regarding proposed permit conditions.

The ALJ concluded that the defects were minor, that Staff sufficiently complied with ECL 23-2711 so that the Town had adequate notice to undertake its responsibilities, to propose permit conditions and apply for party status in this proceeding. The ALJ's ruling is sustained.

SEQRA Involved Agency and Segmentation

The Town asserts jurisdiction with respect to office and maintenance facilities on the mining site for which various local County and Town approvals are required. These approvals will trigger SEQRA, and thus the DEIS should be supplemented in this regard.

Community Character

The ALJ's Rulings 4 and 5 regarding the proposed issue of community character are upheld subject to the following comment. Matters of noise, blasting, and water resources, which can be considered as part of the character of a community, will be addressed as separate issues under the Rulings. However, it is noted that the existence of a local zoning ordinance is not a prerequisite to raise an issue of community character. If a zoning ordinance or other local land use plan exists, it would be evidence of the community's desires for the area and should be consulted when evaluating the issue of community character as impacted by a project.

Property Values

The ALJ held that diminution of property values was not an issue for adjudication based upon prior agency precedent. See, In the Matter of Dailey, (Interim Decision, May 14, 1992). The ALJ found that the protection and perpetuation of taxable value of property pertains to reclamation rather than mining. As noted by the ALJ, no party raised a substantive and significant issue relating property values and the mined land reclamation plan offered by the Applicant. No issue is raised.

Dust

The ALJ ruled that dust was not an issue for adjudication based upon an inadequate offer of proof by Transitor. Ruling 14. Transitor's withdrawal from the proceeding eliminates further consideration of that dispute as formulated by the company. BCRC expressed dust concerns as well; however, no evaluation of the Applicant's information was made by BCRC and therefore its offer of proof was inadequate.

The ALJ's ruling on dust is sustained.

Blasting

At issue on appeal is whether the ALJ ruled on a motion to supplement the party status filing of Mr. Soelberg and, in any event, whether an adjudicable issue was raised.

The ALJ observed that Mr. Soelberg withdrew his offer of proof with respect to blast-induced ground vibration. Ruling 13 at 20. But a review of the transcript shows that Soelberg moved to amend the proof to establish permit conditions to assist in validating compliance with the permit conditions about blasting. Tr. at 358. Mr. Soelberg has retained the services of an expert who would testify as to the adequacy of the blasting monitoring protocol contained in the draft permit and would recommend, among other things, that a recording instrument be placed at or in close proximity to the Soelberg residence. Applicant opposed the motion and explained the terms of the permit conditions designed to protect Mr. Soelberg's residence. Although no specific ruling on the motion was made by the ALJ, he did make an omnibus ruling (Ruling 16) finding no issues for adjudication.

Soelberg's supplemental offer of proof is sufficient and an issue is raised. Whether a recording device should be located at the Soelberg residence in order to monitor compliance adequately to prevent damage to this residence only across the road from the proposed mine will be determined from the hearing record. Alternatively, placement of a recording device at a mutually agreeable location and agreement on the monitoring protocol would eliminate the matter from adjudication.

Administrative efficiency and fairness demand that individuals clearly focus their proposed adjudicable issues in their party status filings and not introduce additional concerns at the issues conference. While some flexibility may be allowed in adjusting a proposed issue, offers of proof on entirely different matters introduced at the issues conference stage may be summarily excluded by the ALJ. Here, the offer of proof initially offered by Mr. Soelberg and the supplemental offer of proof are reasonably related and clearly connected.

Hydrology

The ALJ found the extent of water table drawdown upon wells adjacent to the site and the harm caused thereby to be an issue. Ruling 10.

The principle enunciated in the ALJ's ruling is that a permitted activity governed by the Department should not be allowed to cause adverse environmental impacts on adjacent resources or users of the resource. The ALJ rejected the special condition included in the draft permit as not being sufficiently protective of residential and non-residential water wells which may lose their water through mining operations. See, Special Condition D.1, Exhibit 3c. Accordingly, he held that both the extent of drawdown and the harm to the user would need to be entered on the record before a final decision could be made. The Applicant appeals from the ruling.

Prior agency decisions on mining applications have held that private water wells that might suffer some disruption of a supply of water could be protected through imposition of special permit conditions such as the one imposed by Staff in this case. See, e.g., Matter of Empire Bricks, Inc., (Interim Decision, August 1, 1990); Matter of Gernatt Asphalt Products, (Interim Decision, April 29, 1994). In Matter of Empire Bricks, the Applicant agreed to provide water to landowners within one-quarter mile of the mine if their water wells were impaired. However, the Department has applied the so-called Empire Bricks condition in situations where there were only concerns about potential drawdowns, as opposed to this case where the Applicant acknowledges that there will be a reduction in the water column of certain nearby wells. Here, drawdowns are actually anticipated, and only the geographical and volumetric extent of the drawdowns are unknown. Under these circumstances, the ALJ concluded that the extent of the impact of the drawdowns and harm to the landowners should be adjudicated. I concur.

The ALJ analyzed the issue of harm in context of the common law of trespass and used the definition of harm in ECL 15-0701(2) to wit, "interference with a present use of water." Such interference or harm will be determined by the facts found in the adjudication. Drawdowns will affect each water user differently. The landowners may present facts relating to the impacts of the Applicant's mining operation as interference with their water supply. The ALJ will make the necessary rulings to develop the record on this issue.

The Department Staff shall offer testimony on the drawdown issue, evaluate project alternatives, as required, and make recommendations to the ALJ consistent with their analysis of the facts. The ALJ will analyze the record evidence and make specific recommendations with respect to this issue.

Water Discharge

The ALJ held that the rate at which water will be discharged to the surface, the impact of these discharges to the receiving areas, the project modifications, if any, needed to accommodate the rate of water discharge, as well as the discharges' exceedances of applicable water quality standards for iron and copper, are adjudicable issues. Rulings 11 and 12. The Applicant appeals from these rulings.

The ALJ reached this conclusion based upon his evaluation of the contrary offers of proof submitted by WHIPS, which he found substantive and not based upon speculation. Accordingly, the ALJ was confident that the conclusion presented by WHIPS was sufficient and that adjudication would ultimately reveal the true facts. Although the Applicant complains about the lack of evidence as to appropriate protocols and proper conduct of WHIPS' tests so as to undermine the reliability of the data, substantial deference is given to the ALJ's judgment. Here, the ALJ acknowledged a substantive fact conflict. He also took into account the preliminary nature of the pre-adjudicatory hearing issues conference and avoided adjudication of the facts at this stage of the proceeding. The ALJ's ruling is upheld.

Noise

The ALJ found that noise would be adjudicated in this proceeding and did so under the common law of nuisance, explicitly rejecting the application of the noise standards found in the Department's solid waste regulations at 6 NYCRR 360-1.14(p). Ruling 13. Under SEQRA, significant impacts must be reduced to the maximum extent practicable. 6 NYCRR 617.9(c)(3). The noise standards in Part 360 were designed to control noise levels from heavy equipment and landfill operations. These and other similar standards may be used for guidance to help accomplish the SEQRA objective in mining cases.

The remaining aspects of the ALJ's ruling are sustained.

Party Status

Party status is granted to those entities making application, consistent with the issues identified above.

Motion to Strike

The Applicant moves to strike certain portions of the appeal briefs submitted in response to the ALJ's issues rulings by WHIPS, the Town, County, Soelberg and the BCRC, pursuant to 6 NYCRR 624.6(c). WHIPS, the County, and the Town responded in opposition to the motion. Although the motion practice rule at 6 NYCRR 624.6(c) focuses on motions at the ALJ level and is silent with respect to motions made affecting matters before the Commissioner, it is administratively efficient to address these motions in this Interim Decision.

The Applicant's motion to strike certain portions of the briefs submitted by WHIPS, the Town, Mr. Soelberg, the County and BCRC on the grounds of incorporation of inappropriate information, is denied as moot. The information is not substantive and has no impact on the determinations reached.

This matter is remanded to the ALJ for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 20th day of June, 1995.

_____________/s/_____________
MICHAEL D. ZAGATA, COMMISSIONER

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