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Gernatt Asphalt Products Inc. - Ruling 3, March 22, 1995

Ruling 3, March 22, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Application of GERNATT ASPHALT PRODUCTS, INC., for permits to construct and operate
a surface unconsolidated sand and gravel mine in the Town of Sardinia, Erie County.

(DEC Project No. 9-1462-00019/00001-1)

SECOND SUPPLEMENTAL ISSUES RULING

Background

Gernatt Asphalt Products, Inc. ("the Applicant") seeks permits to construct and operate a sand and gravel mine in the Town of Sardinia, Erie County. The mine would be on a land parcel known as the Gabel/Thomas site, which is generally west of New York State Route 16, north of Genesee Road and south of Allen Road. The project involves a wet processing plant to wash, crush, and size the sand and gravel.

In my Supplemental Issues Rulings of October 5, 1994, I concluded there was no adjudicable issue about mining impacts to on-site archeological resources. Also, I found that no further archeological study was warranted.

This ruling was appealed by the Town of Sardinia as intervenor in this matter. In his Second Interim Decision, Langdon Marsh, then DEC Commissioner, agreed that no issue bearing on the site's archeological resources had been raised based on submittals made to date. However, he said that additional documents not yet already disclosed might be relevant to assessing archeological impacts. (See Commissioner's Second Interim Decision, January 25, 1995.)

These additional documents consisted of papers seized from the Applicant as the result of a search warrant secured from the Cattaraugus County Court by the DEC's Bureau of Environmental Crimes Investigation. The Commissioner directed that DEC Staff secure these documents and make them available to the Town to the extent they were otherwise discoverable.

DEC Staff has since secured the documents, and those which the parties agreed were not privileged from disclosure have been provided to the Town. By papers dated February 15, 1995, the Town submitted a revised offer of proof on the proposed archeological resources issue. The Applicant responded to the Town's offer of proof with papers dated February 21, 1995, and DEC Staff provided comments dated February 23, 1995. The Town gave a reply to the other parties' submittals, dated March 1, 1995.

Discussion

As noted in my supplemental issues rulings, the Applicant's archaeologist, Stephen Oberon, performed a stage I cultural resources survey which located Native American cultural remains at four site locations. The Applicant has chosen to avoid mining in three of the sites, and the fourth (known as the "Thomas 2" site) was investigated as part of a stage II survey, which Mr. Oberon also performed.

In his stage II report, Mr. Oberon writes that the "Thomas 2" site appears to represent the remains of a very small, briefly occupied Native American stone tool maintenance area. According to Oberon, the site has little archeological value because "any cultural features and/or structural remains which might have been present seem to have been obliterated by repeated plowing and other cultivation activities" during the last 150 years.

Mr. Oberon's stage I and II reports were reviewed and accepted by DEC Staff and the state Office of Parks, Recreation and Historic Preservation (OPRHP). OPRHP became involved pursuant to Parks, Recreation and Historic Preservation Law (PRHPL) Section 14.09. This section requires that state agencies consult with OPRHP if it appears any aspect of a project subject to agency approval "may or will cause any change, beneficial or adverse, in the quality of any historic, architectural, archeological, or cultural property" that is listed on the state or national registers of historic places, or is determined by OPRHP to be eligible for listing on the state register.

Having reviewed Oberon's stage I and II reports, OPRHP wrote DEC a letter dated November 4, 1992, which said that the "Thomas 2" site did not meet criteria for inclusion in the state and national registers of historic places, and that the three other sites where cultural remains were discovered would be avoided if the project went forward according to the Applicant's mining plan. Therefore, OPRHP determined that no additional archeological activity was recommended for this project.

OPRHP reaffirmed this position in a second letter, dated July 15, 1993, which added that the "Thomas 2" site merited no protection, avoidance, or mitigation measures.

At the request of DEC Staff, Mr. Oberon's work was evaluated by a second archaeologist, Karen S. Hartgen. She wrote a letter dated October 15, 1993, which confirmed that the type and amount of field work conducted by Mr. Oberon was appropriate and adequate to determine that the "Thomas 2" site was not eligible for register listing.

In its July 15, 1993 letter, OPRHP questioned why the project site was surveyed twice for the Applicant - - once in 1990 by Eric Hansen, and again in 1992 by Mr. Oberon - - and why Oberon's reports do not refer to the Hansen survey. In its prior issues filing, the Town questioned whether Oberon plagiarized Hansen's work, while in the OPRHP letter, the issue was framed in terms of "ethical standards in archeological reporting."

Based on newly discovered documents, the Town's most recent offer of proof is that Oberon did not perform stage I-B reconnaissance of the "Thomas 2" site, and therefore his report of this activity is not genuine. The Town says this issue should be addressed in the following sequence:

  • First, an adjudicatory hearing should be conducted to ascertain the accuracy and genuineness of Oberon's stage I-B and stage II surveys and reports;
  • Second, in the event these surveys and reports are found deficient, additional surveys and reports should be required; and
  • Third, a supplement to the draft environmental impact statement, if required by the results of the foregoing steps, should be drafted in accordance with State Environmental Quality Review Act regulations.

According to the Applicant and DEC Staff, adjudication is not required based on the town's most recent offer. I agree for the following reasons:

  • The Town's offer does not allege a flaw in the Applicant's archeological studies except to the extent it questions whether Oberon plagiarized work actually performed by Hansen, a predecessor consultant. The Town does not contend that Hansen's work is unreliable, so its incorporation in Oberon's reports does not raise a question about the validity of Oberon's conclusions.
  • Oberon's reports have been subject to peer review by Ms. Hartgen, who concluded that the amount and type of field work conducted was appropriate and adequate to determine that the "Thomas 2" site was not eligible for register listing.
  • Oberon's reports have been approved twice by OPRHP - - once in November, 1992, after they were first submitted, and again in July, 1993, after OPRHP was made aware of the earlier Hansen studies. In its correspondence of July 15, 1993, OPRHP said it had no explanation for why the property was surveyed twice, and why the Hansen survey was not referred to in Oberon's reports. On the other hand, these issues did not affect OPRHP's prior findings that:
    1. the "Thomas 2" site did not meet criteria for inclusion in the state and national registers of historic places;
    2. the "Thomas 2" site did not merit any protection, avoidance, or mitigation measures; and
    3. the survey of the remainder of the property was sufficient to indicate that no further archeological survey activities are warranted.
  • OPRHP's own correspondence confirms that DEC has fulfilled its duties under PRHPL Section 14.09 to consult with that agency on archeological matters. The Town's offer does not indicate that this or any other statute or regulation has been violated.
  • The Town's offer of proof does not point to any resource that may have been overlooked in the studies performed on behalf of the Applicant. Nor are its contentions backed up by an offer of expert testimony, which would call the results of these studies into question.

Adjudication of the "genuineness" of Oberon's reports would be pointless unless it was shown that doing so might affect the permitting decision. The Town has not made this demonstration.

Ruling

For the reasons stated above, I find that adjudication is not warranted. No issue is raised, and no further archeological study is directed.

This ruling concerns the arguments raised in "Point I" of the Town's offer of proof. As noted by DEC Staff, Points II-V of the Town's submittal do not expressly rely upon any of the documents newly obtained during the recent discovery process. Therefore, these points should not be entertained, consistent with the Commissioner's Second Interim Decision, which was intended to allow for a revised offer of proof based on documents not previously available.

Appeals

Pursuant to 6 NYCRR Part 624, the rulings of the ALJ setting forth the issues for hearing may be appealed in writing to the Commissioner within three days of the rulings. Allowing for a short extension, any appeals must be received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-5500) no later than March 29, 1995. Any responses to any appeals must be received by April 5, 1995. The parties shall ensure transmittal of all papers to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No submittals by telecopier will be allowed or accepted.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge
Albany, New York

Dated:March 22, 1995

TO: Service List

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