Danny Fortune & Co., Inc. - Ruling, August 18, 1999
Ruling, August 18, 1999
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Application of
DANNY FORTUNE & COMPANY, INC.,
for a mined land reclamation permit pursuant to Environmental Conservation Law
Article 23, Title 27 (New York State Mined Land Reclamation Law) and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
Parts 420 through 425 (Mineral Resources-Mined Land Reclamation).
August 18, 1999
NYSDEC Project No. 3-1326-00031/0003
The Applicant Danny Fortune & Company, Inc., has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility Permit pursuant to Environmental Conservation Law ("ECL") Article 27 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), for a Modification to its current Mined Land Reclamation ("MLR") Permit pursuant to ECL Article 23, Title 27 and 6 NYCRR, Parts 420 through 425 and for a State Pollutant Discharge Elimination System ("SPDES") General Permit. The Applicant proposes to construct and operate a new C&D debris landfill within the existing Palumbo Sand and Gravel mine located east of the Sherman Hill Road near the intersection of Sherman Hill Road and N.Y.S. Route 22, Dover, Dutchess County, New York. The landfill would occupy 58.5 acres of the 96-acre mine property, and would be constructed in 5 phases.
The Department is the lead agency for purposes of State Environmental Quality Review Act ("SEQRA" or "SEQR") review. The permit applications were declared complete and the Draft Environmental Impact Statement ("DEIS") was determined to be acceptable for public comment. The Applicant submitted a revised Engineering Report/Plans, a revised Hydrogeologic Report and an Amended DEIS in February 1999.
On May 24, 1999 and June 7, 1999, legislative hearing sessions were held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Dover Union Free High School, Route 22, Dover Plains, New York at 3:00 p.m. and 7:00 p.m., each day. An issues conference was advertised to commence on June 22, 1999. However, the Applicant amended its permit application with new technical filings including a Revised Hydrogeological Report, Revised Environmental Monitoring Plan and supporting engineering documentation, during the week of June 14, 1999. As a result, the June 22, 1999 issues conference was adjourned to September 21, 1999 and the public comment period on the project has been reopened and extended through September 20, 1999 for the filing of written comments.
Department Staff ("Staff") tentatively oppose the project. Staff have not prepared draft permits in this matter. Instead, by letter dated May 24, 1999, Staff identified the statutory and regulatory bases for Staff's tentative determination to deny the project. Staff recount in that letter, that the reasons for their opposition to the project have been identified on several previous occasions including their March 4, 1997 letter to the Applicant and in Staff's June 1998 comments on the permit application documents and the DEIS.
The deadline for petitions for party status was June 14, 1999. Timely petitions were filed by the Town of Dover (the "Town"), Dover Residents' Unity Means Strength ("DRUMS"), the Estate of Malcolm Fooshee, the Estate of Helen O'Brien and the joint petition of Robert J. Dye and Penny Dye.
The Town's Petition requests that the Applicant's Amended DEIS provide additional information on several aspects of the project, including endangered plant and animal species. At my direction, Staff responded with its position to the Town's requests for information by letter dated July 30, 1999.
The Motion for Site Access
By letter dated August 10, 1999, the Town has moved for an order permitting the Town's proposed endangered species expert(s) to inspect the project site prior to the September 21, 1999 issues conference. The Town asserts that Staff's determination regarding endangered species /plant and animal species is erroneous and places a burden on the Town to gather the requested information. Staff have indicated that the Amended DEIS adequately addresses some endangered species information that the Town believes is necessary for this project review.
To the extent Staff disagree with the Town, the Town wants to pursue those issues that it believes are not addressed or are not adequately addressed in the Amended DEIS, since Staff have declined to do so. Essentially, the Town asserts several omissions of essential information in the Amended DEIS regarding potential endangered species impacts. The Town requests site access for its offered endangered species expert(s), so that the Town can evaluate these potential endangered species impacts.
Pursuant to 6 NYCRR §624.6(c)(3), other hearing participants may serve a response to the Town's motion within five days after service of the motion. Since the fifth day is a Sunday, responses were due by August 16, 1999. See, General Construction Law §20. On August 11, 1999 the Applicant filed a letter in opposition to the Town's request for site access. The Applicant characterizes the Town's request as a groundless fishing expedition. Although not provided for in the regulations, the Town replied to the Applicant's opposition by letter on August 16, 1999. This unauthorized filing was not considered, and in any event is largely repetitive of the Town's position as set forth in its motion.
By permission of the ALJ, a party may access real property in the custody or control of another for the purpose of conducting drilling or other sampling or testing. If such access is granted, then all parties must be given notice of such activities and be allowed to observe. 6 NYCRR §624.7(c)(4). But, as a general matter, discovery prior to the issues conference is limited. The ALJ may allow pre-issues conference discovery only after a finding of extraordinary circumstances. 6 NYCRR §624.7(a).
Therefore, prior to the issues conference, the Town must demonstrate extraordinary circumstances to be successful in its request for site access. 6 NYCRR §624.7(a) and §624.7(c)(4). The Town has not met this burden. For example, the Town asserts an omission in the Amended DEIS regarding endangered species timber rattlesnake site characterization. The Town asserts that two endangered timber rattlesnake dens are present within one mile of the project site and that the project will adversely impact the timber rattlesnake and its habitat. The Town requests site access for its expert(s) so that the Town can evaluate the presence of timber rattlesnakes or timber rattlesnake habitat onsite.
Staff responds that only one timber rattlesnake den is within one mile of the project site; the other den is just over a mile away. Both dens are located in mountains to the west of the valley project site, and are separated from the site by N.Y.S. Route 22, the primary north-south roadway in the area. Staff assert that, due to road kill, Route 22 reduces the likelihood that the snakes will survive the crossing to utilize site habitat. Staff also note that site habitat would be suitable only for summer foraging, not for basking or gestation. Staff conclude that if timber rattlesnakes use the site at all, it would be only a few snakes and the chance of tracking those snakes is low(1).
These are matters appropriately developed during the issues conference. During the issues conference the participants may respond to each other's contentions and ALJ questions. See, generally, 6 NYCRR 624.4(b); compare,Town of Northumberland v Sterman, 246 AD2d 729, 667 NYS2d 505 (Third Dep't., 1998) [Intervener granted site access to conduct soil permeability tests, after ALJ and Commissioner found adjudicable issue existed regarding reliability of the applicant's permeability findings].
The Town may pursue this proposed issue, including site access, during the issues conference. The Town may make an offer of proof regarding the existence of timber rattlesnake dens and habitat in the project area in furtherance of its contention that essential information must be included in the Amended DEIS and its request for site access. During the issues conference, it is the Town's burden to show that a substantive and significant issue exists regarding the omission of additional timber rattlesnake habitat character-ization in the Amended DEIS. But, even if the Town is successful on this issue, the remedy would not necessarily be granting site access to the Town, but could be a requirement that the Applicant provide that additional information in the Amended DEIS or other appropriate relief.
Similarly, with respect to the Town's other proposed endangered species issues requiring site access, the Town may pursue those issues during the issues conference. But the information now before me on those issues does not rise to a showing of extraordinary circumstances.
The Town has not demonstrated the existence of extraordinary circumstances regarding proposed endangered species issues that would necessitate site access at this time. The Town's motion for access prior to the issues conference is denied.
Kevin J. Casutto
Administrative Law Judge
August 18, 1999
Albany, New York
TO: Distribution List (BY FAX)
1. Staff did indicate that the Amended DEIS should be revised to acknowledge that during the summer months some timber rattlesnake may use the site for foraging, but the site does not contain suitable timber rattlesnake habitat for basking or gestation.