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Evergreen Recycling, LLC - Ruling 2, December 4, 2003

Ruling, December 4, 2003

SENT VIA E-MAIL AND BY REGULAR MAIL

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of an Application to construct and
operate a solid waste management facility pursuant
to Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York
(6 NYCRR) Part 360 in the Town of Clay,
Onondaga County by

Clarification of November 18, 2003
Ruling and Notice of Adjournment
DEC Case No. 7-3124-00356/1

Evergreen Recycling, LLC,
Applicant

December 4 2003

In a ruling and notice of adjournment dated November 18, 2003, I addressed the question whether the DEC administrative hearing should continue while Applicant's July 16, 2003 notice of claim remains pending. The ruling provided two alternatives:

  1. Adjourn the DEC administrative hearing until Applicant's alleged claims are resolved on the merits (November 18, 2003 ruling, p. 13, paragraph 4); or
  2. If Applicant chooses to withdraw the July 16, 2003 notice of claim, or the subsequent complaint, before the court considers the matter, the DEC Issues Conference will resume (November 18, 2003 ruling, p. 14, paragraph 4).

The ruling stated further that the DEC administrative hearing would be adjourned if Applicant reinstates the July 16, 2003 notice of claim, or serves subsequent notices of claim.

With a letter dated November 26, 2003, Applicant enclosed a notice of withdrawal of notice of claim also dated November 26, 2003.

Upon receipt of the ruling and Applicant's withdrawal, prospective intervenors expressed concerns about filing appeals, seeking clarification, and the effectiveness of Applicant's withdrawal. Consequently, I convened a telephone conference call on December 2, 2003. A memorandum of the conference call dated December 3, 2003 was sent to the participants.

During the December 2, 2003 conference, prospective intervenors requested clarification of the second alternative identified above. They interpret this alternative to require Applicant to withdraw the July 16, 2003 notice of claim "with prejudice" in order for the Issues Conference to continue. Applicant disagrees.

The November 18, 2003 ruling does not include the phrase, "with prejudice." I did not intend to condition the withdrawal of the notice of claim in such a manner. While drafting the ruling, I could not find any authority that would enable me to require any participant to a DEC administrative hearing to waive a legal right to seek civil damages in order to continue the hearing.

During the December 2, 2003 conference, prospective intervenors stated that they may want to appeal the November 18, 2003 ruling after this clarification is provided. Therefore, the following procedures shall be used. Section 624.8(d)(2) of 6 NYCRR identifies the rulings of the ALJ that may be appealed to the Commissioner on an expedited basis. The November 18, 2003 ruling and this clarification do not come within the categories listed in 6 NYCRR 624.8(d)(2)(i) through (iv). Therefore, the Commissioner must grant leave to appeal (see 6 NYCRR 624.8[d][2][v]).

Pursuant to 6 NYCRR 624.8(d)(3), a motion for leave to file an expedited appeal must demonstrate that the ruling in question falls within one of the categories set forth in 6 NYCRR 624.8(d)(2)(v). Any motion for leave to file an expedited appeal from the November 18, 2003 ruling and this clarification must be received at the office of Commissioner Erin M. Crotty, Department of Environmental Conservation, 625 Broadway, 14th Floor, Albany, New York, 12233-1010, no later than 4 p.m. on December 16, 2003. Motions mailed to the Commissioner's office must include an original and two copies. In addition, one copy of all motions must be sent to all others on the service list, revised December 2, 2003, and to me at the same time and in the same manner as the papers are sent to the Commissioner. Service of any motion upon the Commissioner by e-mail or facsimile transmission (FAX) is not permitted and will not be accepted.

Replies to any duly filed motion for leave to file an expedited appeal are authorized (see 6 NYCRR 624.6[c][3]). Any reply must be received at the Commissioner's office no later than 4 p.m. on December 23, 2003. The instructions provided for service of motions for leave must also be followed for service of replies.

After considering all duly filed motions and replies, the Commissioner will decide whether to grant leave to appeal. If the Commissioner grants leave to appeal, her determination will include a briefing schedule.

During the December 2, 2003 conference, I stated that I would identify any materials that I reviewed while preparing this clarification. I read People v. Jeffrey C. Grune, 278 AD2d 668, which Mr. Bulsiewicz cited during the conference. In addition, I read the two cases cited in Grune. They are Cowles v. Browner, 73 NY2d 382, and Dziuma v. Korvettes, 61 AD2d 677.

/s/
__________________________
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
December 4, 2003

To: Service List, revised December 2, 2003

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