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Dailey - Issues Ruling, April 5, 1995

Issues Ruling, April 5, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of

WILLIAM E. DAILEY, INC.

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

ALJ RULINGS on ISSUES and PARTY STATUS
and
ORDER OF ADJUDICATORY PROCEEDINGS

File No.
4-3828-00058/00001-0

The Proposed Project and Permits Sought

William E. Dailey, Inc., RR 1A - Box 51, Shaftsbury, VT 05262 (the "Applicant") seeks a Mined Land Reclamation Permit, a Permit to Construct an Air Contamination Source, and a State Pollutant Discharge Elimination System (SPDES) Permit, in order to construct and operate a surface consolidated limestone quarry. The project would affect 71 acres of a 102 acre parcel known as the Hoosick mine site, which is controlled by the Applicant. The proposal includes blasting, and is proposed to be accomplished in seven phases. The estimated life of the mine would be 50 to 75 years. The Proposed Project would be located on the east side of Farmers Inn Road, one half mile north of its junction with New York State Route 7, in the Town of Hoosick, Rensselaer County, New York. Main access to the mine would be from Farmers Inn Road. Discharges from the mining operations would be made to an unnamed tributary of Browns' Brook at an average rate of 0 to 415 gallons per minute (gpm). The reclamation objective is the creation of a 48.6 acre lake to provide habitat for aquatic resources and temporary habitat for migrating birds. The reclaimed benches of the quarry, following revegetation, are to provide habitat for a variety of animals and birds.

Proceedings

Application papers were initially filed with the Department of Environmental Conservation (DEC) Region 4 Staff ("Staff") December 27, 1993. Following correspondence between Staff and Applicant, including the submission of a revised Draft Environmental Impact Statement ("DEIS"), Staff issued a Notice of Complete Application, Complete DEIS and Legislative Public Hearing and Comment Period (the "NOCA"), which was published September 7, 1994, in the Environmental Notice Bulletin (ENB). This notice was also published in The Record and The Eagle, and subsequently republished in those papers to revise the deadline for the comment period. Staff held a legislative public hearing October 3, 1994, to entertain oral and written comments on the proposed project. The public comment period was extended to October 13, 1994. On November 17, 1994, Department staff received and accepted Applicant's comprehensive response to the public comments that were submitted.

On December 23, 1994, the DEC Office of Hearings received Staff's request to schedule a public hearing. The undersigned, Frank Montecalvo, was assigned to be the Administrative Law Judge ("ALJ") who would hear the matter.

The Notice of Public Hearing (the "Notice") was issued January 4, 1995, and was published January 11, 1995, in the ENB and The Record. The Notice was also directly mailed on January 6, 1995, to the clerks or chief executive officers of the Town of Hoosick and Rensselaer County, as well as to other persons deemed interested in this proceeding. The Notice indicated Staff's tentative determination that the proposed project, if carried out in accordance with the conditions of Staff's proposed Draft Permit (available for public review), would meet all the applicable statutory and regulatory requirements. The Notice stated that written comments on the proposed project, DEIS, and Draft Permit were to be received by February 13, 1995; that oral comments would be taken at a public hearing on February 13, 1995; and that petitions to intervene in these proceedings were to be filed by February 7, 1995.

As advertised in the Notice, I convened the public hearing at 7:00 PM on February 13, 1995, at the New York State Armory, 80 Church Street, Hoosick Falls, NY. Approximately 200 people attended the hearing, and 29 persons made oral comments for the record. The legislative hearing concluded shortly after 10:00 PM. A number of written comments were also submitted to me in accordance with the Notice. These comments, along with the oral and written comments previously made to Staff pursuant to the NOCA, are summarized in Appendix A below, "Summary of Public Concerns."

Pursuant to the Notice, the Issues Conference was convened at 10:00 AM February 14, 1995, at the New York State Armory, 80 Church Street, Hoosick Falls, NY. DEC Staff was represented by David H. Keehn, Esq., Assistant Regional Attorney. The Applicant was represented by Devorsetz Stinziano Gilberti Heintz & Smith, P.C., William J. Gilberti, Jr., Esq., of counsel. On or before the filing deadline, I received petitions to intervene from nine potential parties. The potential parties appeared at the Issues Conference as follows: Paul R. Plante, pro se; Herb Anderson, pro se and through Mr. Plante; Rensselaer County (the County), through Mr. Kenneth Dufty, Executive Director, Environmental Management Council; the Bennington County Regional Commission (BCRC), through Mr. Gregory Burke, Director; Tansitor Electronics, Inc. (Tansitor), through Mr. Carroll G. Killen, Director; Carol Haerer, pro se; the Town of Hoosick (the Town), through Delaney & Smith, Y. Curtis Smith, III, Esq., of counsel; the Whipstock Hill Preservation Society (WHIPS), through Young Stockli & Rowe, Kevin M. Young and Kristin Carter Rowe, Esqs., of counsel; and Stein I. Soelberg, through Roemer and Featherstonhaugh, PC, Michael A. Greco, Esq., of counsel. Party Status and potential issues for adjudication were discussed. Two prior requests to adjourn the Issues Conference were denied, with the formal ruling on same made below where potential issues related to the "Bennington Bypass" are addressed.

The Issues Conference continued and was concluded the following day, February 15, 1995. In response to a request from the Town, I ruled that identified non-compliances with the requirements of ECL 23-2711 presented no problems that needed to be addressed in the proceeding. To avoid a delay in the event the ruling (formally made below under "Community Character") is overturned on appeal, the Town and Staff were directed to make the exchange provided by 23-2711 within a set time period, and to copy the conference participants on the correspondence. It's noted that the Town has since submitted proposed permit conditions, and supplied supporting documentation. This submission is being maintained in the file in the event my ruling below re ECL 23-2711 is overturned on appeal. The submission was not considered under the Issues Rulings below because the proposed conditions and supporting documentation were not available for consideration during the Issues Conference. Just before the conclusion of the conference, Mr. Anderson filed a statement in support of a motion requesting that a certain question be referred to the DEC General Counsel for a declaratory ruling. (Mr. Anderson had previously filed a Notice of Motion during the legislative hearing.) I directed that Staff and Applicant file responses to Mr. Anderson's motion (addressed below under "Community Character"). The record of the Issues Conference was closed February 15, 1995, except for receipt of certain case citations from WHIPS and the Applicant relative to wetlands, a copy of certain Town ordinances, responses from Staff and Applicant to Mr. Anderson's motion, a reduced copy of a map that was used to illustrate an argument, and responses to the foregoing submissions. These items were subsequently submitted and are considered part of the record of the Issues Conference. Other items were also subsequently submitted which were not expressly authorized. These were generally additional arguments on what should or should not be issues, supporting documents or exhibits, responses to unauthorized submissions, and protests of one party against another. Those items are maintained in the correspondence file, but were not considered in the course of arriving at the rulings herein. Responses to unauthorized submissions were also disregarded in issue determination. The rulings below are based on the transcripts of the proceedings and the items on the Exhibits List (rev April 5, 1995, attached as Appendix B). The record of the Issues Conference finally closed March 6, 1995, on receipt of the transcripts of the proceedings.

Issues Rulings

Preface:

Title 6 NYCRR 624.4(c) (effective January 9, 1994) outlines the standards for adjudicable issues. When the Department Staff has determined that the Project, as conditioned by the draft permit, will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party proposing the issue to show that the proposed issue is both substantive and significant (In the Matter of the Town of Huntington,Interim Decision of the Commissioner, December 22, 1988 and In the Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990. Now codified as 624.4(c)(4)).

An issue is substantive if there is sufficient doubt about the Applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the application, and related documents, the draft permit, the content of any petitions filed for Party Status, the record of the Issues Conference and any subsequent written arguments authorized by the ALJ (In the Matter of the International Business Machines Corporation, Interim Decision of the Commissioner, July 3, 1990. Now codified as 624.4(c)(2)). To be substantive, the issue cannot be based merely on speculation but on facts that can be subjected to adjudication (In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dept., 1982), aff'd. 58 NY2d 919 (1983)).

An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit (In the Matter of NYC Dept. of Environmental Protection, Chelsea Pump Station, Third Interim Decision of the Commissioner, October 6, 1988; In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990. Now codified as 624.4(c)(3)).

Those seeking to make a matter a hearing issue bear the burden of persuading the ALJ that the matter meets these requirements. To meet the burden, a person should offer assertions that arise from the opinions of qualified prospective witnesses. (Matter of Halfmoon Improvement Area No. 1, Decision, April 2, 1982 ; see also Oneida County's Energy Recovery Facility, Interim Decision, July 27, 1982).

The Issues Rulings below are grouped by heading under several subject areas as a matter of organization. They must be read in context with their accompanying discussions to be fully understood, particularly where potential issues may be related to more than one subject area.

The "Bennington Bypass"

Ruling 1: There are no substantive and significant issues regarding the proposed "Bennington Bypass" to be adjudicated.

Ruling 2: No further information in the DEIS regarding the proposed "Bennington Bypass" is required.

Ruling 3: The motions by the County and Mr. Soelberg to cancel and/or adjourn the Issues Conference are denied.

Discussion (Rulings 1 - 3):

Many people who commented on the proposed project expressed support for the "Bennington Bypass" (Bypass). The proposed project, however, is generally viewed as standing in the way of the much needed and long-awaited Bypass. The County, Mr. Soelberg, BCRC and WHIPS have attempted to raise issues or made requests related to the Bypass.

The County requested that this hearing process be halted, in essence, to allow time for information regarding possible "coexistence" of the Bypass and the proposed mine to be included in the DEIS and made available for public review (Exhibit 7A). In its Petition for Party Status (Exhibit 7), the County argues that the mine "may preclude the development of the infrastructure improvement, which is needed in order for ... Rensselaer County to grow and prosper." The County claims the application is incomplete because a failure to address cumulative impacts of the mine and proposed Bypass, particularly possible coexistence on the site, under 6 NYCRR 617.4(b) would prevent the Commissioner from being able to make the required "SEQR" or "SEQRA" (State Environmental Quality Review Act) findings that the action minimizes or avoids adverse environmental impacts to the maximum extent practicable. 6 NYCRR 617.9(c)(3). The County offers to have a representative from the Vermont Agency of Transportation (VAOT), Alison B. Church, testify on the status of the Bypass.

In its Petition for Party Status (Exhibit 12), WHIPS similarly offers the testimony of Ms. Church as well as various public records to show inconsistency between the mine and the Bypass. WHIPS contends that Applicant's failure to address the Bypass as part of its mining and reclamation plans means that Applicant has not met the requirements of 6 NYCRR 422.3.

Mr. Soelberg also requested cancellation of the Issues Conference (or, alternatively, adjournment pending resolution of Applicant's suit against the New York State Department of Transportation (NYSDOT)), essentially contending that because Applicant's plans are in "direct conflict" with NYSDOT's plans (deemed to ensure the health, safety and welfare of the public), Applicant's plans cannot be logically determined to serve the public interest, and thus a permit "cannot" be issued (Exhibit 13A). This position is reiterated in his Petition for Party Status (Exhibit 13).

BCRC (Exhibit 8) indicates it is opposed to anything that would delay the Bypass project, and offers a written statement concerning the Bypass' objectives, history and status. BCRC also offers the services of an unnamed landscape architect to prepare graphics to document existing and future conditions relative to the Bypass. BCRC expresses concern for the safety of motorists that would use the proposed Bypass when blasting is conducted.

Whether or not an application is complete is, by regulation, not an issue for adjudication, although an ALJ may request that an Applicant submit additional information. 3 6 NYCRR 624.4(c)(7) provides that "[t]he completeness of an application, as defined in section 621.1(d) of this Title, will not be an issue for adjudication. The ALJ may require the submission of additional information pursuant to section 621.15(b) of this Title."

"Completeness" aside, although there are differences in perception of the current "status" of the Bypass (i.e., how definite the plans are), no significant facts are in dispute. Thus, there is nothing to adjudicate. Based on the filings and conference statements, the facts below are not disputed.

The Bypass is a highway project proposed by VAOT in cooperation with NYSDOT. It is intended to improve the flow of traffic through Bennington, VT by creating an alternate route around Bennington. Planning for such a route began as early as the 1950's and has continued over the years. On August 24, 1994, VAOT and NYSDOT held a joint public hearing on what was called the "Preferred Alternative" alignment for the Bypass. The Notice for that hearing (Exhibit 2F) indicated that "Preliminary Plans" were scheduled for Fall of 1995. As part of the public comment process for that proceeding, the Applicant apparently suggested another alignment, one that would allow it to pursue mining at the project site (see "exhibit E" to Exhibit 13A). In November, 1994, VAOT and NYSDOT published their official determinations and findings (Exhibit 2G; "exhibit D" to Exhibit 13A) which indicated that two design alignments were under evaluation, the one proposed at the August, 1994 hearing and another which shifts the proposed highway to the north to reduce the impact on the Applicant's property. The findings also indicated that acquisition of the right-of-way was scheduled to occur in February 1995. In December 1994, Applicant brought suit against NYSDOT to block acquisition of its property (see "exhibit E" of Exhibit 13A).

Following requests by Staff, the DEIS (Exhibit 2A on pp. 138-9) addressed a Bypass alignment that would traverse the middle of the project site. With such an alignment and other assumptions, Phases I, II, III, IV, and part or all of VI, VII, the stormwater detention pond, and the main access road to the mine from Farmers Inn Road would be eliminated, and the mine would be rendered "unfeasible." The application, of which the DEIS is a part, was found to be complete September 1, 1994 (Exhibit 3A).

The DEIS did not address possible "coexistence" of mining and the Bypass. As noted above, and at the Issues Conference, the transportation agencies are now considering alignments that could allow "coexistence," potentially reducing the number of Phases that would be affected. However, this development occurred after the DEIS was written.

From the above information, it's clear that the Applicant was requested by Staff to have the DEIS address what was, at that time, a reasonably foreseeable scenario for the Bypass. The Applicant did so. An EIS should address only those potential adverse significant environmental impacts that can be reasonably anticipated (see 617.14(b)). Thus, the DEIS met this requirement. Design and planning for the Bypass is still ongoing, making prediction of exactly where the highway will go, or even if it will be built, somewhat speculative. It's unreasonable to require Applicant to change its mining and reclamation plans to address alignments proposed after the application was complete, especially when "Preliminary Plans" are not even scheduled to be out until the fall of 1995. Although concern was expressed that "cumulative" impacts of the mine and the more recent alignments would not be addressed, it was not demonstrated what such impacts could be or that they could be significant. Applicant's information on the Bypass appears sufficient. There is no need to halt the hearing and/or seek supplemental information regarding the Bypass.

Mr. Soelberg argued that because a permit for the proposed mine "cannot be issued" due to the conflict between the mine and the public's interest in the Bypass, these proceedings should be halted or adjourned. It's clear that any conflict would depend upon how the NYSDOT chooses to exercise its discretion when serving the public interest, thus Mr. Soelberg's argument is premature. Furthermore, it's for NYSDOT, not Mr. Soelberg, to determine what is needed to protect the public's interest in the Bypass. Thus he has no standing to make his request. If there is any conflict between the Bypass and Applicant's plans, the courts will resolve it during eminent domain proceedings. Thus, no good reason has been presented to halt or adjourn these proceedings.

Community Character

Ruling 4: There are no substantive and significant issues regarding community character which require adjudication.

Ruling 5: No further information regarding "community character" is required.

Discussion (Rulings 4 and 5):

At the legislative hearing many persons expressed concern over the changes that the mine would bring to their community and the effect that it would have on their lives.

Mr. Plante (Exhibit 5), the County (Exhibit 7), and Ms. Haerer (Exhibits 10, 10A) all questioned the adequacy of the DEIS with regard to the project's impact on community character. Mr. Plante questioned whether or not Applicant had shown consistency of its land use objectives with the community's goals and objectives, and adequate consultation with local authorities, per 6 NYCRR 422.1(a). He cited portions of the County's Master Plan for the record. The County offered to have Ms. Joanne Schwart gather data to establish the community's character as an "art" community. Ms. Haerer expressed concern over the destruction of the hillside, and noise and traffic congestion from trucks. She offered videos, her own testimony and that of landscape architect Michael Roland and Mr. Plante as fact witnesses to establish the community's character. (She also offered other witnesses with regard to noise and traffic, which matters are addressed separately below.)

Whether or not the application is "complete" in its treatment of community character is not an issue for adjudication pursuant to 624.4(c)(7). Also, recent changes to part 422 have eliminated the need for an applicant to show consistency of plans with a local community's goals and objectives. 4 See 6 NYCRR 422.1(a) as revised, effective January 18, 1995.

SEQRA regards community character as part of the "environment" as defined by ECL 8-0105(6). In Chinese Staff and Workers Association v City of New York, 68 NY2d 359, 509 NYS2d 499 (1986), the potential displacement of local residents and businesses was an effect on population patterns and neighborhood character which the city was required to consider in determining whether the requirement for an EIS was triggered. Here, we have an EIS. Although there are differing opinions on whether or not community character was adequately addressed, the DEIS clearly addresses community character by providing information on the project area's environmental setting, transportation facilities and conditions, agricultural resources, land use and zoning, community resources (police and fire protection, and recreational facilities), demography, and cultural resources (including those of historical and archaeological value). (See Exhibit 2A.) There appears to be no dispute over these facts. It's things like the area's physical features (both natural and man-made) and patterns of land use that help establish a community's "character."

With the exception of noise, ground water and related impacts addressed in other sections below, there also is little dispute over the changes that the proposed mine would bring to the area: a mine and all its attendant activities would be placed in what is now a field.

What we have left are not really factual disputes, but differences of opinion over whether particular community values deserve protection. Deciding which community values to protect is a legislative rather than an adjudicatory function This is usually done by the local municipality under its police powers in the form of a zoning ordinance. An example of this would be the "Special Manhattan Bridge District" cited in Chinese Staff that was created to preserve the residential character of Chinatown. Based on Issues Conference statements, it's noted that the local municipality here has no zoning ordinance. Adjudication requires both jurisdiction over the subject matter and a standard against which the facts may be measured. An example of a difference of opinion which cannot be adjudicated is the disagreement over whether or not the project area is an "art community." DEC does not have jurisdiction over "art communities" as such. Assuming that it did, what constitutes an "art community" has not been legislatively defined. "Art community" means different things to different people, who will have varying ideas on what is needed to protect one. Without a law or regulation defining what an "art community" is, it is impossible to determine, e.g., what, if any, permit conditions would protect it, or whether or not a permit should be denied because of it. An ALJ has no authority to legislate, and therefore cannot use his or another person's personal standards to make such determinations. Whether or not an "art community" exists and similar disputes cannot be substantive and significant issues because, without knowing what should be protected, they cannot result in a permit condition or a denial.

There is no need to remand the application back to the Applicant for more information on community character. As demonstrated by the fact that so many persons were able to clearly articulate why they object to the project, the DEIS provides sufficient information to alert neighbors, the general public, and the decisionmaker to the changes that the proposed project would bring to the community's character. Sufficient information exists to enable people to judge for themselves whether they will be able to see the mine, be within earshot of it, be troubled by its traffic, etc.

Simply put, there are no substantive and significant issues to be adjudicated, and there is no reason to require the Applicant to submit further information on the subject.

Ruling 6: Staff complied with the requirements of ECL 23-2711 sufficiently to enable the Town to take issue with the provisions of the Draft Permit at the Issues Conference. Thus no corrective action is needed within the context of this proceeding. The Town's request is denied.

Discussion (Ruling 6):

The Town contended that the Department did not provide the Town with the specific notice as required by ECL 23-2711. That section gives the local municipality an opportunity to make determinations related to setbacks, barriers, dust control, hours of operation, and whether or not mining is prohibited at that location, and have these determinations possibly incorporated into the conditions of DEC's permit. The Town essentially asked that it be accorded its statutory right, and have DEC solicit its input on certain permit conditions. The Town offered the testimony of Sean Casey, Town Supervisor, to establish what had or had not been done in this regard. In addition, the Town also noted that the DEIS did not acknowledge its status as an "involved agency" under SEQRA.

At the Issues Conference, the Town admitted that it had received a copy of the application about September, 1994, by hand delivery, rather than by certified mail as specified in 23-2711. The Town noted that it did not receive a description of the project as "major" or "minor" as required by 23-2711. These were the only statutory requirements not met that the Town was able to identify. The Town did not rely so much on these minor defects, but rather argued that it should have received a written notice that it had the right to make determinations and forward them to DEC Staff for consideration as mining permit conditions, and that it now wanted 30 days to do so.

The fact that the Town was not told specifically that it had a right to forward its recommendations to DEC is not a legal defect. The statute does not specifically require it. The statute itself tells the Town that it has this right. The Town had notice that a mining application had been filed when it was given a copy by Staff.

Staff admitted that it hand-delivered the application rather than use certified mail. It did not dispute that it failed to tell the Town of the project's classification. Staff argued, however, that it complied with the intent and substance of ECL 23-2711. Both Applicant and Staff indicated that they were willing to accept the risk that such defects could make any resulting permit subject to attack in a court of law.

This proceeding is not focused on whether Staff complied with particular provisions of law, but whether the application meets permit issuance standards, and what, if any, conditions should be imposed. The Town's offer of proof regarding Staff's compliance/non-compliance with ECL 23-2711 is irrelevant to whether or not the project meets permit issuance standards or requires further conditioning. 6 Staff also doesn't dispute such information, making trial of it unnecessary. Section 23-2711 is related to permit conditions only. Staff, months ago, gave the Town all the information to which it was entitled under 23-2711 that would be relevant to developing permit conditions (i.e., the application). When the Town was given notice of this hearing, it was told that Staff had drafted a permit, and that it could petition for Party Status and attempt to raise issues for adjudication (see the Exhibit 1 series of exhibits). If there was anything about the Draft Permit that it did not like, the Town, like everyone else, was obliged to voice its objections and make its offer of proof regarding the substance of the draft permit in its petition and at the Issues Conference. Staff's use of personal delivery and failure to say whether the project was considered "major" or "minor" did not interfere with the Town's opportunity to propose issues. Since Staff gave the Town the information it needed assert permit conditions as potential issues for adjudication in a timely fashion, nothing more needs to be done with 23-2711 within the context of this proceeding. The Town has no right to a second chance to raise issues on the draft permit, and the circumstances here do not justify my giving it another chance as a matter of discretion.

Ruling 7: Mr. Anderson's Motion is denied.

Discussion (Ruling 7):

Citing the Commissioner's decision in the Application of Onondaga Valley Farms, Inc. (1983), the subsequent 1991 changes to the Mined Land Reclamation Law (MLRL), a letter from the Empire State Concrete and Aggregate Producers Association to then-Governor Cuomo, and a Supreme Court Albany County decision in Matter of Lascari, et al. v DEC et al. (Index No. 3943-92); Mr. Anderson (Exhibits 6A, 6B) moved that the question of "the level of reasonable care with respect to impacts to existing community character" to be used by DEC in reviewing an application be referred to the DEC General Counsel for determination.

Section 624.8(b)(1)(ix) gives the ALJ the discretion to refer a purely legal issue, involving no factual dispute, that is a matter of first impression or is precedential in nature, to the General Counsel for a declaratory ruling in accordance with Part 619. I decline to do this because the subject matter concerned has recently been addressed by a clear change in the regulations as noted under the Discussion (Ruling 5) above, eliminating any need for further guidance. I also decline because the instant case is substantially dissimilar to the Lascari matter that Mr. Anderson relies upon. In Lascari, the community exercised its jurisdiction to protect community values by enacting a zoning ordinance, which is not the case here. In Lascari, DEC had already issued a permit, a point not reached here. In Lascari there was also a "negative declaration," meaning that DEC found, without the assistance of an EIS (and, apparently in the court's view, without taking the required "hard look" at the issues) that the permitted project would cause no significant impact to the environment. Here there is a DEIS. Most importantly, unlike Lascari, the agency is giving the potential parties the opportunity to demonstrate where that "hard look" may not have been taken. This hearing is part of taking the "hard look." Although "community character" in a generic sense need not be analyzed further, as discussed under Ruling 5 above, certain aspects of the project that could affect community character will be scrutinized further, as ruled upon below -- also unlike Lascari. Simply, the need for a declaratory ruling hasn't been shown.

Traffic

Ruling 8: There are no substantive and significant issues regarding traffic impacts which require adjudication.

Discussion (Ruling 8):

Many persons who commented on the project expressed concern that the trucks that would be going to and from the mine over Farmers Inn Road and Route 7 would compromise the safety of motorists, pedestrians and others who use these routes.

The Town (Exhibit 11), Mr. Soelberg (Exhibit 13), and the County (Exhibit 7) allege that Farmer's Inn Road will need to be upgraded to safely accommodate the truck traffic that would be generated by the proposed project. They further argue that the DEIS fails to address impacts to alleged state and federal wetlands that the upgrading would entail. They offer proof from Standard Engineering Corporation that the road would have to be upgraded with four foot shoulders in all curved sections and two foot shoulders in other sections to safely accommodate the truck traffic. Resurfacing would also be needed. These activities are alleged to require placement of fill in the wetlands. The County also offers testimony to establish the wetlands' presence (see "Wetlands" below).

The Whipstock Hill Preservation Society (Exhibit 12) similarly alleges that Farmers Inn Road will have to be widened to comply with "AASHTO" and "ITE" standards because of truck traffic to be generated by project. WHIPS also alleges that standards pertaining to sight distances and safety for trucks turning into Route 7 from Farmers Inn Road won't be met, and challenges Applicant's conclusion that the intersection has a good accident record, claiming the wrong standard was used. WHIPS claims the DEIS' failure to perform level-of-service or turn lane analysis of that intersection means no conclusions can be drawn on the project's impacts to traffic and roadway conditions. WHIPS also notes that the DEIS fails to address a local ordinance regarding weight limits. WHIPS offers the testimony of Kenneth Kaliski regarding the need to widen Farmers Inn Road to comply with highway standards, the hazards under current conditions, and the problems trucks would cause exiting Farmers Inn Road onto Route 7. WHIPS also offers photos and videotapes to establish conditions, the testimony of local residents to establish that certain sections roadway are subject to flooding, and the testimony of a wetlands expert (see "Wetlands" below).

SEQR does not change the existing jurisdiction of agencies nor the jurisdiction between or among state and local agencies. 617.3(b). The impacts of truck traffic on highway safety or on the integrity of the roadway itself are within neither the jurisdiction nor the expertise of the DEC. The Town and the State Department of Transportation are the agencies with the authority to maintain and regulate the use of the aforementioned roads. It is for them to decide, not DEC, whether or not the roads require upgrading (and for them to account for environmental impacts when deciding the type of upgrading to pursue). As set forth In the Matter of the Application of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992: "Since other agencies have both the expertise and jurisdiction over traffic restrictions on these roads, any action in response to these concerns must be taken by them rather than the Department (see Matter of A-1 Recycling and Salvage, Interim Decision of the Commissioner, March 19, 1992; Matter of Empire Bricks, Interim Decision of the Commissioner, August 1, 1990; and Matter of Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989)." Thus, the proposed issues related to traffic will not be adjudicated here. The DEIS provides sufficient information regarding the project's truck traffic to alert the other agencies to what the traffic's impacts will be. Thus, there is no need to direct Applicant to supply more information on the subject.

Wetlands

Ruling 9: 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.

Discussion (Ruling 9):

The County, WHIPS, the Town, and Mr. Soelberg all alleged the existence of certain areas which might qualify as wetlands under state or federal regulations. They expressed concern that these wetlands would be adversely affected by mining and dewatering of nearby areas currently below the water table, and by the upgrading of Farmers Inn Road expected to be needed to accommodate the project's truck traffic. Whether or not the need for the road upgrade should be an issue for adjudication is addressed under "Traffic," above. Whether or not a determination of the areas that would experience hydrologic changes should be an issue for adjudication is addressed under "Hydrology" below. Whether or not there is an issue concerning the existence of "Wetlands" is addressed here.

The County (Exhibit 7) offers the testimony of Tom Sanford, a representative of its Soil and Water Conservation Service, to show that portions of Farmers Inn Road are built on hydric soils and that water that hydrates the wetland meets the edge of the road surface. He also would show that wetland areas in the northwest portion of the project site would be drained by the excavation.

WHIPS, the Town, and Mr. Soelberg (Exhibits 12, 11 and 13) all offer the testimony of ecologist Steven George. Mr. George would testify that 8 acres of wetlands on the northwest portion of the project site are hydrologically connected with 16 acres on the opposite (west) side of Farmers Inn Road, and thus form part of a wetlands complex sufficient to meet the 12.4 acre criteria for wetlands under ECL Article 24. Mr. George would also testify on the impact to the wetland from widening Farmers Inn Road, and to show that the permit condition requiring protection of the wetlands from the effects of dewatering the mine would be impossible to achieve and that wetland vegetation would be adversely affected by the dewatering. WHIPS would also introduce documentation of what constitutes federal wetlands at the site (since there is an apparent conflict among experts on the extent of federal wetlands in the vicinity of the proposed project), prior DEC statements regarding wetlands, and testimony of neighbors regarding flooding.

At the Issues Conference it was undisputed that none of the wetlands mentioned by the potential parties are designated as regulated on the final freshwater wetlands map for the area (see Exhibit 2D). Rather, the potential parties want to prove that the wetlands meet the criteria to be mapped under Article 24.

After the final freshwater wetland map for an area has been promulgated (the case here), a DEC Article 24 permit is required to conduct regulated activities on the wetlands that are shown on the map (ECL 24-0703 Application for permits; 24-0107 Definitions, subsections 1 and 2). Since the "wetlands" in question here do not appear on the final wetland map, no Article 24 permit is required to alter them.

However, the Department has jurisdiction to amend the official map at any time in accordance with certain procedures, and, once a proposed map amendment announcement is made (which must comply with prescribed formalities), no regulated activities may be initiated within the area that is the subject of the proposal until the commissioner has taken final action on the proposed change. See ECL 24-0301(6); 6 NYCRR 664.7, particularly 664.7(a)(2)(i); Matter of Wedinger v Goldberger, 71 NY2d 428, 436; DBS Realty, Inc. v. New York State Dept. of Envtl. Conserv., 154 Misc. 2d 424, aff'd 201 AD2d 168 (3rd Dept. 1994). The record here does not indicate that any such announcement has been made in this case; thus, the wetlands in question are presently unregulated under Article 24 since they do not appear on the official map. If they are to be regulated, DEC must first perfect its jurisdiction over them by taking the steps specified in the law and regulations.

The law specifies the procedures that must be followed for an area to be added to the official map as a regulated wetland (ECL 24-0301; 6 NYCRR 664.7). The procedures are separate and distinct from those related to processing a permit application. Determination of whether or not an area should be added to the official map is within the commissioner's discretion 7 "The commissioner may readjust the map ..." (underline added) 24-0301(6). See also 6 NYCRR 664.7(a)(2)., and is thus akin to rulemaking, not adjudication. The regulations do not give third parties a right to compel DEC to add a wetland to the map. Since there is no right, this proceeding cannot be used to accomplish that purpose -- i.e., to, in effect, wrest discretionary authority from the commissioner. The issue of whether or not the wetlands meet Article 24 criteria is thus beyond the scope of this proceeding.

When it enacted ECL Article 24, the New York legislature provided both the standard and the process for determining which wetlands are deserving of state protection, i.e., the standard and process for determining which wetlands are "significant." Where the legislature has already provided the standard and process for determining what is significant, SEQRA should not be used to impose some other standard or process. Thus, the question of whether or not the wetlands here meet the federal wetlands criteria is irrelevant and cannot constitute a substantive and significant issue in this proceeding.

Hydrology

Ruling 10: The extent of watertable drawdown to be caused by the proposed project, and what, if any, harm such drawdown could cause to adjacent property owners, is a substantive and significant issue that will be adjudicated in this proceeding.

Discussion (Ruling 10):

Several persons who commented on this project expressed concern over how it would impact the availability of water. They noted the area's dependency on groundwater for domestic and commercial purposes, and noted existing problems with its availability.

Mr. Plante, WHIPS and Mr. Solberg have all attempted to raise issues related to the effect of the proposed project on groundwater.

Applicant's DEIS (Exhibit 2A, p. 90) identifies the geographic area beyond the project site that may experience water table drawdown from the proposed project. Applicant identified several residential wells in this area, and stated that "potential drawdown effects in these wells may range from as little as 10 to 15 feet at the Soelberg well to an estimated maximum of 70 to 80 feet at the Gardner well."

WHIPS and Mr. Soelberg have offered the testimony of an apparently qualified expert, Dr. Brewer, purportedly based on a model inputting DEIS data and "reasonable" assumptions on unknown parameters, that purportedly will demonstrate that a much greater area than that predicted by the Applicant could experience drawdown of the water table. The offer of a contrary independent analysis by a qualified professional willing to subject same to the scrutiny of cross examination indicates that the dispute is substantive. The dispute is also significant because, assuming that what has been called the "Empire Bricks" permit condition. Named after a case in which such a provision was used. Here the provision appears as Special Condition "D.1." in the Draft Permit (Exhibit 3C), which basically requires the permittee to provide potable water whenever the quantity and quality of water in wells within 1/2 mile of the life-of-mine boundary is below drinking water standards. An individual's rights to water from the permittee under this permit condition are somewhat dependant upon the property owner having subjected the owners' wells to a pre-mining survey of water quantity and quality, and the results of the survey. The logistics of providing potable water have not been spelled out. appropriately provides protection against off-site impacts, it could extend the area over which the protection of such condition should be applied. Applicant's DEIS indicates drawdown effects up to approximately 1/4 mile from the project site. The draft permit condition provides protection out to 1/2 mile. Thus, Staff effectively provided a 1/4 mile "margin of safety" in the condition. If, as suggested by potential parties, the effects would extend out to more than double the distance predicted by the Applicant, the "margin of safety" will be eliminated, indicating a need to enlarge the area to be covered by the condition. Clearly, the extent of watertable drawdown is a substantive and significant issue that needs to be adjudicated before a rational decision can be made on the permit.

Beyond resolving the factual dispute concerning the extent of drawdown is the application of the law to the facts as resolved. Analysis of the law does not appear to have been reached in previous cases cited as precedent, due to acceptance of the "Empire Bricks" permit condition as the means to avoid litigation of groundwater issues. Here, in spite of the condition, litigation can't be avoided. Furthermore, Applicant requested that the condition be removed if there is adjudication of the hydrology issue, claiming that the condition is unlawful (Issues Conference Transcript, p 431). In addition, there is no indication that nearby property owners having an interest in the water would agree to such a provision. Agreement by such property owners would appear to be a necessity (to ensure litigation is avoided) given Applicant's admission that the project will lower the watertable and the water level in wells on their properties. DEC cannot authorize an activity which would have an adverse impact upon the availability of water to residences, farms and business in the area.

It's noted that lowering of the watertable has been held to constitute a trespass. Forbell v N.Y., 164 NY 522 (1900). A municipal corporation which, by operation of a water system consisting of wells and pumps on its own land, tapped the subsurface water stored in the land of an adjacent owner and in all the contiguous territory, lead to its own land and by merchandising it prevented its return, whereby the value of the land of such owner was impaired for agricultural purposes, was held liable to the adjacent owner in trespass for the damages occasioned thereby.. See also Reisert v City of New York, 174 NY 196 (1903) and Hathorn v Natural Carbonic Gas Co., 194 NY 326 (1909). The thrust of the cases is that one has the right to use the underground water to enjoy one's own land, but not when it injures abutting landowners. ECL Article 15, Title 7, sets forth private rights in waters. Essentially, 15-0701(1) declares that an alteration of the natural conditions of watercourses. The applicability of this provision to groundwater that is not confined to a discrete channel is clouded by the provision's use of the word "watercourse" and DEC's definition of same in 6 NYCRR 608.1(n) However, applying the statute to such groundwater appears to be consistent with the approach taken in Forbell and the other cases cited above. (including those below the surface) is reasonable and lawful as against any person having an interest in the watercourse "unless such alteration is causing harm to him or it, or would cause him or it immediate harm if and when begun." What constitutes "harm" is defined in subdivision (2) and includes interference with a present use of the water.

Given the private rights in water noted above, it appears that when the record is developed on the extent of watertable drawdown, it must also be developed on the "harm" that the drawdown could cause. This is needed to inform the decisionmaker of the consequences of the project. The parties who claim that there will be harm have the burden of establishing its existence.

Ruling 11: The rate at which water will be discharged to the surface, and the project modifications, if any, needed to accommodate the rate, is a substantive and significant issue that will be adjudicated in this proceeding.

Discussion (Ruling 11):

WHIPS offered the testimony of Dr. Brewer that will purportedly establish that the volume of water that will be discharged from the project site will be approximately double the amount predicted by the Applicant in the DEIS.

Again, there is a substantive dispute because a qualified expert has purportedly arrived at a contrary result using an independent analysis based on data. This dispute is significant because accurate discharge volumes will be needed for Staff to review (under Special Conditions "H.1." and "H.2." in Exhibit 3C) Applicant's design for the stormwater detention system and the "erosion and sediment control plan." Since the draft permit is presumably based upon the DEIS' estimated discharges which might be shown to be wrong, the need for project modifications to account for a different rate is deemed to be part of this issue.

Ruling 12: Whether or not the proposed surface discharge will cause an exceedance of the applicable water quality standards for iron and copper in the receiving stream is a substantive and significant issue that will be adjudicated in these proceedings.

Discussion (Ruling 12):

WHIPS contends that it has groundwater monitoring data to support a conclusion that the surface discharge from the proposed project will exceed the water quality standards for iron and copper in a Class D stream (the class of the receiving stream). WHIPS offers its data and the testimony of Dr. Brewer to support its conclusion. Applicant made clear at the Issues Conference that it disputed WHIPS' contention based on geological considerations. This issue is substantive because WHIPS' position is based on data and expert opinion. A trial would sort out which position is right. It is significant because it raises the possibility that either the discharge will cause a violation of water quality standards and can't be permitted, or requires permit conditions regarding iron and copper to ensure there are no violations.

Noise

Ruling 13: Whether or not noise from the proposed project would constitute a nuisance, and whether or not additional mitigation is practicable and warranted, is a substantive and significant issue that will be adjudicated in this proceeding.

Discussion (Ruling 13):

Many persons who commented on this project expressed concern over the resulting noise from the blasting, operating machinery, loading and unloading trucks and truck traffic, etc. It is believed that the noise resulting from the proposed project would destroy the peace and tranquility of the area, interfere with the creative pursuits (and livelihood) of a number of artists, cause stress, and, in general, degrade the quality of life for those who live nearby.

WHIPS, Mr. Soelberg, Mr. Anderson and Ms. Haerer all offered the testimony of Dr. Scarton regarding noise. This testimony would purportedly question the reliability of the conclusions reached in the DEIS regarding noise impacts and establish that noise from the proposed project would be greater than that predicted in the DEIS, would exceed the "Leq" energy equivalent sound levels prescribed for rural areas in 6 NYCRR 360-1.14(p) as operational requirements for solid waste management facilities, and would require residents located within a mile of the project to speak in raised or loud voices to obtain 100% speech intelligibility. Additional mitigative measures were proposed by Mr. Soelberg. There was a general contention that noise impacts would not be mitigated to the maximum extent practicable.

In his petition, Mr. Soelberg also offered the testimony of Mr. O'Rourke regarding the impact of blasting on his home (i.e., that blasting may cause overpressure as high as 151 db which would break his windows), however he withdrew this testimony at the Issues Conference. At the conference, Mr. Soelberg conceded that the draft permit condition applied the correct criteria to protect his residence, but requested that additional documentation be required of Applicant to ensure that the permit criteria is complied with.

Ms. Haerer has also offered her own testimony as well as that of composer Ms. Vivian Fine and sculptor Mr. Benjamin Karp regarding their needs as artists for a quiet environment to carry out their creative pursuits.

The mining regulations do not set a specific noise standard. The solid waste regulations at 6 NYCRR 360-1.14(p) cannot be used as a standard for distinguishing between legally acceptable and unacceptable noise simply because Applicant is not proposing to conduct activities that are subject to those regulations. Those regulations represent a legislative balancing of interests that are different from the interests here (i.e., presumably balancing the public's need for solid waste management, rather than the need for minerals, against the public's need for a quiet environment). The numerical levels specified in that provision do provide evidence of what has been deemed "acceptable" versus "unacceptable" under certain circumstances. However, as Applicant pointed out at the Issues Conference, there are other noise regulations that could be cited for the same purpose. One would have to examine the rationale behind each to assess their implications for this case. That would turn our focus away from the impacts of this particular project.

The better approach would be to look at whether or not noise from the proposed project would constitute a nuisance. This is a standard binding upon everyone. Applicant agreed at the Issues Conference that it was bound by the common law nuisance standard (Issues Conference Transcript p 271 - 272). The ECL appears to have adopted this standard or something very similar. The ECL sets the standard that will be used here. Under ECL Article 19, "Air Pollution Control," noise is defined to be an "air contaminant" (19-0107(2)). Noise (as an "air contaminant") constitutes "air pollution" if it is "in quantities, of characteristics and of a duration which [is] injurious to human, plant or animal life or to property or which unreasonably interfere[s] with the comfortable enjoyment of life and property ... throughout such areas of the state as shall be affected thereby ..." (19-0107(3)). The mining regulations require a plan to prevent pollution and minimize the effect of mining on the people of the state "to the extent necessary to achieve compliance with the regulations of the department ... and to any other applicable standards." (Underline added, See 422.2(c)(4)). Subsections (i) and (iii) under 422.2(c)(4) sets forth specific methods that may be used to control noise. The nuisance standard (as articulated by Article 19) is, thus, a basic requirement. Additional mitigation is required by SEQR which requires the Applicant to mitigate impacts to the maximum extent practicable. See 617.9(c)(3).

Here the potential parties have offered evidence that purportedly shows people within a mile of the site will have to shout to hold a conversation on their properties. That indicates the basic standard could be exceeded and should not be permitted. Applicant contends there will be no problem. Thus there is a substantive and significant issue of what the noise impacts will be. SEQR extends the issue to cover whether further mitigation is warranted and practicable.

Whether or not the project's noise will interfere with the special needs of Ms. Haerer and other artists is beyond the scope of the issue. What constitutes a "nuisance" is considered from the perspective of persons of ordinary sensibility and ordinary tastes and habits. (See under definition of "nuisance" in Black's Law Dictionary, revised 4th Ed., citation to Meeks v Wood, 66 Ind App 594; see also Prosser, Law of Torts, 4th Ed., 578-579).

The effect of blasting on Mr. Soelberg's house is not an issue, nor part of the noise issue, since he withdrew the offer of testimony that purportedly would have shown that blasting could break his windows and conceded the draft permit condition applied the correct criteria for protecting his house.

Dust

Ruling 14: There are no substantive and significant issues regarding dust which require adjudication.

Discussion (Ruling 14):

Several persons who commented on the proposed project expressed concern over the dust it would produce and noted their particular sensitivities to dust.

Tansitor (Exhibit 9) noted that its manufacturing process can be adversely affected by the presence of dust, including dust that is not visible to the naked eye, and offered to produce evidence to that effect. BCRC (Exhibit 8) expressed concern for Tansitor as well as for the Bennington Airport and other unidentified receptors near the project site, noted that the DEIS contained no modeling of off-site dust impacts, and offered to obtain an air quality impact analysis using modeling from the Vermont Agency of Natural Resources Air Pollution Control Division.

Such offers of proof are insufficient to raise an issue for adjudication. The Applicant claims that no dust will leave the project site. The Draft Permit (Exhibit 3C) contains a number of provisions pertaining to dust including Special Condition "G.10." which states that "[t]he operation of the facility is subject to a fugitive dust performance standard of no dust past the property line." Tansitor's sensitivities to dust were not disputed, so evidence of that is not needed. BCRC's offer to produce modeling may or may not confirm Applicant's and Staff's position that dust will not cause problems off site. Without evidence, now, to indicate that Staff and Applicant may be wrong, there is no dispute to adjudicate.

Property Values

Ruling 15: The effect of the proposed project on property values will not be an issue for adjudication.

Discussion (Ruling 15):

A number of persons who commented on the proposed project feared that the mine would cause a decrease in their property values.

Mr. Plante, Mr. Anderson, and Mr. Soelberg all tried to raise the project's effect on property values as an issue for adjudication. Mr. Plante and Mr. Anderson offered to produce documents they claimed would demonstrate that property values in Glenville declined when a mine was located there. Mr. Soelberg offered the testimony of Mr. Shroeder, a real estate agent, to establish that the proposed mine would cause the value of his property to decline.

Based on prior commissioner's decisions, the effect of the proposed project on property values cannot alone be an issue for adjudication. In the September 28, 1992 Interim Decision in the Matter of Kearney Gravel Company, the Commissioner stated that "[p]rior decisions of the Department have already determined that there is no basis to examine potential reduction in property values caused by a mining operation (In the Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, May 14, 1992)." In the January 20, 1989 Interim Decision in the Matter of the Application of Red Wing Properties, Inc., the Commissioner held that "[n]either the Mined Land Reclamation Law (ECL Article 23 Title 27) nor its implementing regulations (6 NYCRR Parts 420-426) permit consideration of the diminution of property values in the surrounding community as a criteria by which to judge a mining application."

It's noted that the ECL 23-2703 "Declaration of Policy" for the MLRL lists "to protect and perpetuate the taxable value of property" among its objectives. DEC reiterated this language in the MLRL's implementing regulations at 6 NYCRR 420.2 "Scope" which states that the regulations "shall be interpreted to carry out the policies of the State to foster and encourage the development of an economically sound and stable mining and mineral industry, and ... to protect and perpetuate the taxable value of properties ..." This language does not make protection of taxable value a permit issuance criterion, but, rather, makes it a goal. It means that where varying interpretations of the regulations are possible, those favoring protection of taxable value are to be chosen.

Property values are again mentioned in 422.3(b) pertaining to reclamation plans where it is stated that "[b]asic reclamation shall include: ... the protection and perpetuation of the taxable value of property." Here the protection and perpetuation of the taxable value of property is a requirement rather than a goal. However, this requirement pertains to reclamation rather mining. No one here made an offering to show that the taxable value of property would not be protected by the reclamation proposed.

Miscellaneous

Ruling 15: Whether or not the application is complete, adequately identified involved agencies, or adequately addressed alternatives will not be issues for adjudication.

Ruling 16: Any matter not expressly or implicitly dealt with in the rulings above is found not to raise an adjudicable issue.

Discussion (Ruling 15):

The Town, WHIPS, and/or Mr. Plante argued that the application did not identify all the involved agencies, was not complete in several respects and/or did not adequately address alternatives. All these arguments are regarded as involving application "completeness," which is not an issue pursuant to 6 NYCRR 624.4(c).

Party Status Rulings

Ruling 17: Mr. Plante's petition for Party Status is denied.

Discussion (Ruling 17):

Mr. Plante petitioned for full party status. Mr. Plante is a County resident and taxpayer, a disabled veteran, frequently drives roads in vicinity of site, visits the area near the site, drinks water and depends on a healthful environment. He also is a licensed Professional Engineer, is an associate level public health engineer, and has been involved with other mining applications.

Mr. Plante lives many miles from the project site. Unless he travels to the project vicinity, he will not be affected by it. Threshold standing requires possible harm in kind or degree different from the public at large. While Mr. Plante exhibits a professional concern, his stake in this matter is no greater than that of the public at large. His environmental interest in this proceeding is not adequate under 624.5(d)(1)(iii), therefore his petition must be denied.

This ruling does not preclude Mr. Plante from serving as Mr. Anderson's representative (see below), nor from being a witness.

Ruling 18: Tansitor's petition for Party Status is denied.

Discussion (Ruling 18):

Tansitor petitioned for full party status. Tansitor is a manufacturer of capacitors. It is concerned over limestone dust possibly affecting its products.

Tansitor did not file an acceptable petition pursuant to 624.5(b)(1) and (2) because it did not identify precise grounds for opposition or support (624.5(b)(1)(v)), nor did it identify an issue for adjudication which meets the criteria of subdivision 624.4(c) (per 624.5(b)(2)(i)), nor did it present an offer of proof with respect to an issue (624.5 (b) (2) (ii)). Tansitor has neither raised an issue, nor has it demonstrated that it can make a meaningful contribution to an issue raised by another party. Thus, the requirements of 624.5(d)(1) have not been met. Tansitor's petition must be denied.

Ruling 19: BCRC's petition for Party Status is denied.

Discussion (Ruling 19):

BCRC petitioned for full party and/or amicus status. BCRC is a compact of the municipalities of the Bennington, Vermont Region whose mission is to work collectively for the purpose of effective planning and technical assistance for its members in the areas of economic development, social infrastructure and natural and environmental resources. BCRC opposes actions which would cause undue delay to Bypass project.

BCRC has neither raised a substantive and significant issue nor demonstrated that it can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party. It also has not identified a legal or policy issue which needs to be resolved by the hearing. Thus, the requirements of 624.5(d) have not been met. BCRC's petition must be denied.

Ruling 20: The County's petition for Party Status is denied.

Discussion (Ruling 20):

The proposed project would be located within the County. The County expressed concern that the mine may "preclude the development of the infrastructure improvement [Bennington Bypass], which is needed in order for that sector and other portions of Rensselaer County to grow and prosper." (bracketed added). The County also expressed concern over the preservation of the rural character and small wetlands in the area of the proposed project, as well as concern over Farmers Inn Road.

As a jurisdiction within which the project will be located, the County has an obvious environmental interest in the outcome of this proceeding. However, the only viable hearing issues are the Hydrology and Noise issues enumerated under the Issues Rulings above. The County neither raised these issues, nor did it demonstrate that it could make a meaningful contribution to the record on these issues. Thus the County does not meet the requirements of 624.5(d)(1)(ii). Party Status must be denied.

Ruling 21: The Town's petition for Party Status is denied.

Discussion (Ruling 21):

The Town requests full party status. The proposed project would be located within the Town. The Town contends it is a SEQRA "involved agency" for several reasons. It opposes the quarry because it believes that the DEIS does not provide sufficient detailed information about environmental effects, and that there will be adverse impact to wetlands from both the mine and improvements to Farmers Inn Road that will be needed.

As a jurisdiction within which the project will be located, the Town has an obvious environmental interest in the outcome of this proceeding. However, the only viable hearing issues are the Hydrology and Noise issues enumerated under the Issues Rulings above. The Town neither raised these issues, nor did it demonstrate that it could make a meaningful contribution to the record on these issues. Thus the Town does not meet the requirements of 624.5(d)(1)(ii). Party Status must be denied.

Ruling 22: Mr. Anderson's petition for Party Status is granted.

Discussion (Ruling 22):

Mr. Anderson requests full party status. He moved to the area of the proposed project to live and raise a family. Substantial effort has been invested in rebuilding an old farmstead as the family home. The proposed mine (at an elevation of approximately 750 feet amsl) will be in full view of his backyard (at elevation of approximately 980 feet amsl), and would be the dominant view from the house. The current view is the reason why petitioner settled on the location. He contends that the proposed screening berms will not mitigate the noise impacts over the direct line of sight to the house, nor will they mitigate impacts to the areas petitioner goes to hunt and relax.

Mr. Anderson has filed an acceptable petition pursuant to 624.5(b)(1) and (2), meeting the requirement of 624.5(d)(1)(i). He will be directly impacted by this project as indicated above, in a manner different from the public at large. He has the environmental interest required by 624.5(d)(1)(iii). He also offered (along with others) the testimony of Dr. Scarton on the Noise issue identified above, demonstrating that he can make a meaningful contribution to the record, and meeting the requirement of 624.5(d)(1)(ii). Mr. Anderson is entitled to full party status.

Ruling 23: Ms. Haerer's petition for Party Status is granted.

Discussion (Ruling 23):

Ms. Haerer requests full party status. She is a nationally recognized artist who resides and works in an historic house and barn about one half mile from and with view of the site of the proposed project. She contends that the mine's noise will interfere with her ability to work, negatively impacting her profession as an artist.

Ms. Haerer has filed an acceptable petition pursuant to 624.5(b)(1) and (2), meeting the requirement of 624.5(d)(1)(i). She will be directly impacted by this project as indicated above, in a manner different from the public at large. She has the environmental interest required by 624.5(d)(1)(iii). She also offered (along with others) the testimony of Dr. Scarton on the Noise issue identified above, demonstrating that she can make a meaningful contribution to the record, and meeting the requirement of 624.5(d)(1)(ii). Ms. Haerer is entitled to full party status.

Ruling 24: WHIPS' petition for Party Status is granted.

Discussion (Ruling 24):

WHIPS requests full party status. WHIPS is a citizens group with over 30 resident members who reside in the immediate vicinity of the proposed project. They are interested in preserving their quiet rural landscape, preserving wetlands and drinking water supplies, and clean air.

WHIPS has filed an acceptable petition pursuant to 624.5(b)(1) and (2), meeting the requirement of 624.5(d)(1)(i). Residing in the immediate vicinity of the proposed project, WHIPS' members will be directly impacted by this project through the change in landscape, noise, and effects on wells. The impact to them will be in manner and degree different from the public at large. WHIPS has the environmental interest required by 624.5(d)(1)(iii). WHIPS also offered (along with others) the testimony of Drs. Scarton and Brewer on the Noise and Hydrology issues identified above, demonstrating that it can make a meaningful contribution to the record, and meeting the requirement of 624.5(d)(1)(ii). WHIPS is entitled to full party status.

Ruling 25: Mr. Soelberg's petition for Party Status is granted.

Discussion (Ruling 25):

Mr. Soelberg requests full party status. Mr. Soelberg owns property across Orebed Road from the project site, and resides there with his family. The proposed mine will be located approximately 1000 feet from his residence. Mr. Soelberg and his family enjoy a bucolic, quiet and peaceful lifestyle, clean air and water, wildlife, and picturesque vistas. Mr. Soelberg is concerned over the view of the mine directly in front of his home, traffic, his private well water supply, viability of local wetlands and wildlife habitat, dust and noise. The DEIS predicts that the water level in his well will drop.

Mr. Soelberg has filed an acceptable petition pursuant to 624.5(b)(1) and (2), meeting the requirement of 624.5(d)(1)(i). He will be directly impacted by this project as indicated above, in a manner different from the public at large. He has the environmental interest required by 624.5(d)(1)(iii). He also offered (along with others) the testimony of Drs. Scarton and Brewer on the Noise and Hydrology issues identified above, demonstrating that he can make a meaningful contribution to the record, and meeting the requirement of 624.5(d)(1)(ii). Mr. Soelberg is entitled to full party status.

Order of Adjudicatory Proceedings

Due to the existence of hearing issues, proceedings are tentatively scheduled as follows:

  1. The Noise Issues will be tried during the week of May 15, 1995.
  2. The Hydrogeology Issues will be tried during the week of May 22, 1995.
  3. The Applicant will arrange for the hearing to take place at the New York State Armory, 80 Church Street, Hoosick Falls, New York or, with prior ALJ approval, at another suitable location in the municipality where the proposed project would be located. Hearing sessions on each issue will commence at 9AM on the Monday designated above, and continue as needed 9AM to 5PM weekdays during the designated week until concluded. In the event more than one week is needed to complete trial of either set of issues, additional hearing sessions will be scheduled at that time.

If the above schedule is impracticable or would otherwise prejudice the rights of any party, I am to receive notice of same with an explanation in writing as soon as possible, but no later than 4PM on April 21, 1995. If such happens, I will contact the parties to schedule alternate hearing dates and issue appropriate orders.

Procedures:

WHIPS, Mr. Soelberg, Ms. Haerer and Mr. Anderson (collectively, the "Intervenors") are consolidated for the purposes of presenting witnesses, but maintain their status as individual parties. The Intervenors are directed to coordinate their efforts so as to avoid duplication and repetitive testimony. Unless they agree among themselves otherwise, the Intervenors will proceed in the following order: WHIPS, Mr. Soelberg, Mr. Anderson and Ms. Haerer.

On each group of issues Applicant will present its witnesses first, to be followed by Staff and then the Intervenors. Since it has the burden of proof, Applicant will be permitted rebuttal as of right. For the same reason, Intervenors will be permitted sur-rebuttal as of right on the sub-issue of "harm" that will be suffered due to watertable changes (see Discussion under Ruling 10).

Appeals

Pursuant to 6 NYCRR Part 624, parties and potential parties have a right to appeal to the Commissioner any of the ALJ's rulings contained herein. Such appeals must be filed in writing with the Commissioner, and notice of the appeal and a copy of all briefs must also be filed with the ALJ and served on all parties. "Parties" is deemed to include "potential parties" until Party Status is finally determined by the Commissioner, or by passage of the time to appeal a denial of same. Appeals documents are to be transmitted to the ALJ and other parties simultaneously with and in the same manner as they are transmitted to the Commissioner. Thereupon the other parties may submit briefs or other arguments in support of or in opposition to the appealed issues.

All appeals must be received no later than 4PM on April 21, 1995. All replies must be received no later than 4PM on May 3, 1995. Service by "fax" is not allowed.

Appeals to the Commissioner are to be sent to the following address: Commissioner Michael D. Zagata, N.Y.S. Dept. of Environmental Conservation, 50 Wolf Road, Albany, NY 12233-1010. Notice of the Appeal and copies of all briefs are to be simultaneously sent to the ALJ and other parties at the addresses shown on the attached Service list.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Frank Montecalvo
Administrative Law Judge

Dated: Dated: April 5, 1995
Albany, New York

Appendix A - Summary of Public Concerns

Appendix B - Exhibits List rev April 5, 1995

To: Official Service List attached

Appendix A - Summary of Public Concerns

While a few persons indicated support for the proposed project, most of the comments were negative. Supporters cited the following reasons for their support: job creation, the advantage of having locally available aggregate for construction, business activity to help relieve the tax load, and the good reputation of the company's owners. The opposition focused on the areas of the Bennington Bypass, community character, traffic, groundwater, noise, dust, property values, the adequacy of the DEIS, and the public's role in the DEC's decision making.

A number of people claimed that the entire permit review process is flawed because DEC did not conduct a public "scoping" session prior to development of the EIS.

A great number of people who commented on the proposed project expressed support for the Bypass. The proposed mine, however, is generally viewed as standing in the way of the much needed and long-awaited highway project. Some felt that cumulative impacts of the mine and Bypass needed to be addressed, that the DEIS did not adequately address the Bypass, that the EIS was incomplete without accounting for the Bypass' impacts and that the environmental review was "segmented." Some feared that approval of the mine would cause the authorities to choose a Bypass route that would be something other than the least environmentally intrusive route.

Many persons expressed concern over the changes that the mine would bring to their quiet rural community and the effect that it and the accompanying noise, dust and traffic would have on their lives. It was noted that a number of persons who make their living in the arts live in the area and need a quiet environment to work. Persons of other callings noted a need for quiet as well. Many people value the beautiful setting, and fear that the mine will cause its loss. It was suggested that a viewshed analysis be performed during de-foliage periods. The continued viability of agriculture in the area was also mentioned.

Many persons expressed concern that the trucks that would be going to and from the mine over Farmers Inn Road and Route 7 would compromise the safety of motorists, pedestrians and others who use these routes. It was feared that Farmers Inn Road would need upgrading to accommodate the trucks, and that this would have an adverse impact on certain wetlands. Some felt that the traffic study should have been performed at times other than a Saturday afternoon and that other data (such as accident data from the rescue squad) should have been used. There also was concern that traffic vibrations could damage the area's historical structures, especially in nearby Bennington.

Several persons expressed concern over how the mine would impact the availability of water. They noted the area's dependency on groundwater for domestic and commercial purposes, and noted existing problems with its availability. The proposed discharge of 600,000 gallons of water per day was viewed as being wasteful in an area of short supply, and being at the mine-neighbors' expense. Concern was expressed that blasting could cause the migration of contaminants from a nearby site into the local groundwater. Monitoring downgradient of that site was requested. Some opined that well-head protection should include homes to be built after mining operations begin. It was contended that information regarding discharges and the stormwater detention pond was insufficient, that thermal impacts to Brown's Brook were not addressed, and that an erosion and sedimentation control plan was needed.

Many persons expressed concern over the resulting noise from the blasting, operating machinery, loading and unloading trucks and truck traffic, etc. It was believed that the noise resulting from the proposed project would destroy the peace and tranquility of the area, interfere with the creative pursuits (and livelihood) of a number of artists, cause stress, and, in general, degrade the quality of life for those who live nearby. Some wanted reverberation and focusing effects accounted for. Some claimed there were inconsistent statements in the DEIS regarding the frequency of blasting.

Several persons expressed concern over the dust the mine would produce and noted their particular sensitivities to dust. Impacts to aircraft using the nearby Bennington airport were also mentioned.

A number of persons feared that the mine would cause a decrease in their property values, and noted that the mining regulations were intended to protect property values.

Appendix B - Exhibits List rev April 5, 1995

NAME OF HEARING: William E. Dailey, Inc.; Application No. 4-3828-00058/00001-0,Mined Land Reclamation Permit (ECL Title 27 Article 23, 6 NYCRR Parts 420-423); Permit to Construct an Air Contamination Source (ECL Article 19, 6 NYCRR Parts 200-250); and State Pollutant Discharge Elimination System ("SPDES") Permit (ECL Article 17, 6 NYCRR Parts 750-758)

EXHIBITS LIST:

  1. HEARING NOTICE DATED January 4, 1995
    1. Office of Hearings Hearing Notice Distribution List
    2. Copy of Hearing Notice published in January 11, 1995 ENB
    3. Affidavit of publication of Hearing Notice in The Record on January 11, 1995 (Rec'd Ofc H. 2/9/95)
    4. Affidavit of publication in The Eagle on January 4, 1995 (Rec'd Ofc H. 2/9/95)
  2. APPLICATION/RELEVANT APPLICANT'S POSITION DOCUMENTS (NO EXHIBIT 2):
    1. Draft Environmental Impact Statement/Application Volume 1 of 2 (including appendices and plates) (Rec'd Ofc H. 12/23/94)
    2. Draft Environmental Impact Statement/Application Volume 2 of 2 (including appendices and plates) (Rec'd Ofc H. 12/23/94)
    3. Applicant's "Response to Comments" (Rec'd Ofc H. 12/23/94)
    4. Rensselaer County Freshwater Wetlands Map 4 0f 22 (Rec'd Issues C. 2/15/95)
    5. Memo VAOT 7/20/94 (Rec'd Issues C. 2/15/95)
    6. NYSDOT/VAOT EDPL Hearing Notice (Rec'd Issues C. 2/15/95)
    7. NYSDOT/VAOT EDPL Findings (Rec'd Issues C. 2/15/95)
    8. USACOE 11/23/94 Letter (Rec'd Issues C. 2/15/95)
    9. Response to Anderson Motion (Rec'd Ofc. H 2/21/95) (added April 5, 1995)
    10. Case citations responding to WHIPS' citations (Rec'd Ofc. H 2/21/95) (added April 5, 1995)
    11. Copies of Town Ordinances (*argument in cover letter is disregarded) (Rec'd Ofc. H 2/22/95) (added April 5, 1995)
  3. DOCUMENTATION OF STAFF'S POSITION (NO EXHIBIT 3):
    1. Notice of Complete Application, Complete DEIS and Legislative Public Hearing and Comment Period on September 7, 1994 in the Environmental Notice Bulletin (ENB) (Rec'd Issues C. 2/14/95)
    2. Positive Declaration 2/3/94 (from Staff's designated "Application File") (Rec'd Ofc H. 12/23/94)
    3. Draft Permit (Rec'd Ofc H. 12/23/94)
    4. Hearings Request w/ attachments plus cover memo and Staff's list of file contents (Rec'd Ofc H. 12/23/94)
    5. Response to Anderson Motion (Rec'd Ofc H. 2/21/95)(added April 5, 1995)
  4. PUBLIC COMMENTS IN CASE FILE (NO EXHIBIT 4):
    1. Written Comments received with Hearings Request, designated by DEC Staff as received during Staff's public comment period. (Rec'd Ofc H. 12/23/94)
    2. Transcript received with Hearings Request, designated as oral comments from Staff's 10/3/94 Legislative Hearing (with Attendance Sheet and additional written comments attached). (Rec'd Ofc H. 12/23/94)
    3. Written Comments received with Hearings Request, designated by DEC Staff as received after Staff's public comment period. (Rec'd Ofc H. 12/23/94)
    4. Written Comments received with Hearings Request, designated by DEC Staff as received prior to Staff's public comment period. (Rec'd Ofc H. 12/23/94)
    5. Written Comments received by the Office of Hearings during Public Comment Period [Rec'd Ofc. H.on or prior to 2/13/95]
    6. Transcript of Oral Comments made at the 2/13/95 Public Statement Session. (Rec'd Ofc H. 3/6/95)

      PARTY STATUS FILINGS:

  5. Petition of Paul R. Plante, PE under cover (Rec'd Ofc. H 1/30/95 with corrections (Rec'd Ofc. H 1/31/95)
    1. Rensselaer Co. Health Dept. Service Request (Rec'd Issues C. 2/15/95)
    2. Response to Applicant's response on Anderson motion (Rec'd Ofc H. 3/1/95)(added April 5, 1995)
    3. Response to Staff's response on Anderson motion (Rec'd Ofc H. 3/2/95)(added April 5, 1995)
  6. Petition of Herb Anderson (Rec'd Ofc. H 2/3/95)
    1. Notice of Motion (Rec'd Legis. H. 2/13/95) (added April 5, 1995)
    2. Statement in Support of Motion (Rec'd Issues C. 2/15/95) (added April 5, 1995)
  7. Petition of Rensselaer County (Environment Committee/EMC) (Rec'd Ofc. H 2/6/95)
    1. Request of Rensselaer County (Environment Committee) (Rec'd Ofc. H 1/23/95)
    2. Petition of Bennington County Regional Commission (Rec'd Ofc. H 2/6/95)
    3. Petition of Tansitor Electronics, Inc (Rec'd Ofc. H 2/7/95)
  8. Petition of Carol Haerer (Rec'd Ofc. H 2/7/95)
    1. Map (Rec'd Issues C. 2/15/95)
  9. Petition of Town of Hoosick (Rec'd Ofc. H 2/7/95)
  10. Petition of Whipstock Hill Preservation Society (Rec'd Ofc. H 2/7/95)
    1. Case citations (Rec'd Ofc. H 2/16/95)(added April 5, 1995)
  11. Petition of Stein I. Soelberg (Rec'd Ofc. H 2/7/95)
    1. Request of Stein I. Soelberg (Rec'd Ofc. H 2/3/95)

OFFICIAL SERVICE LIST - February 21, 1995

NAME OF HEARING: William E. Dailey, Inc.; Application No. 4-3828-00058/00001-0

ALJ: Frank Montecalvo

Department of Environmental Conservation, Office of Hearings
50 Wolf Road, Room 409
Albany, NY 12233-1550
FAX 518 485-7714;
PHONE 518 457-3468

STAFF: DEC Region 4 c/o
David H. Keehn, Esq., Assistant Regional Attorney
NYSDEC Region 4 Headquarters
1150 North Westcott Road
Schenectady, NY 12306-2014
FAX 518-357-2087;
PHONE: 518-357-2048

APPLICANT: William E. Dailey, Inc. c/o
William J. Gilberti, Jr., Esq.
Devorsetz Stinziano Gilberti Heintz & Smith, P.C.
Bridgewater Place, 500 Plum Street Suite 600
Syracuse, NY 13204-1428
FAX 315-442-0106;
PHONE: 315-442-0100

Potential Parties:
INTERVENOR 1 - Paul R. Plante, PE c/o
Paul R. Plante, PE
Box 87, RR #4
Averill Park, NY 12018
FAX ; PHONE:

INTERVENOR 2 - Herb Anderson c/o
Herb Anderson
RR #2 Box 54
Hoosick Falls, NY 12090
FAX ; PHONE: 518 686-4155

INTERVENOR 3 - Rensselaer County c/o
Mr. Kenneth Dufty, Executive Director
Environmental Management Council
Rensselaer County
Pattison Government Center
Troy, NY 12180
FAX ; PHONE: 518-270-2880

OFFICIAL SERVICE LIST - February 21, 1995

NAME OF HEARING: William E. Dailey, Inc.; Application No. 4-3828-00058/00001-0

INTERVENOR 4 - Bennington County Regional Commission c/o
Mr. Gregory Burke, Director
Bennington County Regional Commission
PO Box 342
Arlington, VT 05250
FAX ; PHONE: 802-375-2576

INTERVENOR 5 - Tansitor Electronics, Inc. c/o
Mr. Carroll G. Killen, Director
Tansitor Electronics, Inc.
PO Box 230 West Road
Bennington, VT 05201
FAX 802-447-1297 ;
PHONE: 802-442-5473

INTERVENOR 6 - Carol Haerer c/o
Carol Haerer
31 Mapletown Road
Hoosick Falls, NY 12090
FAX ; PHONE:

INTERVENOR 7 - Town of Hoosick c/o
Y. Curtis Smith, III, Esq.
Delaney & Smith
138 Central Avenue
Albany, NY 12206-2901
FAX 518-426-5482;
PHONE: 518-432-4871

INTERVENOR 8 - Whipstock Hill Preservation Society c/o
Kevin M. Young, Esq.
Young Stockli & Rowe
Executive Woods, Two Palisades Drive
Albany, NY 12205
FAX 518-438-9914;
PHONE: 518-438-9907

INTERVENOR 9 - Stein I. Soelberg c/o
Michael A. Greco, Esq.
Roemer and Featherstonhaugh, PC
99 Pine Street
Albany, NY 12207-2734
FAX 518-426-5853; PHONE: 518-436-7663

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