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Jointa Galusha, LLC - Ruling, May 16, 2001

Ruling, May 16, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of

JOINTA-GALUSHA, LLC.

for a Mined Land Reclamation Permit pursuant to Article 23 of
the Environmental Conservation Law (ECL), a Freshwater Wetland Permit pursuant to
Article 24 of the ECL, a State Pollutant Discharge Elimination System Permit pursuant to
Article 17 of the ECL, and an Air Pollution Control Permit pursuant to Article 19 of
the ECL for a proposed mine in the Town of Hartford, Washington County

RULING ON MOTION FOR
ACCESS TO THE SITE OF
THE PROPOSED MINE

May 16, 2001

DEC #5-5338-00009/00001

Summary

This ruling addresses the motion made by a group called "Hartford Opposes Mineral Extraction" or "HOME" to access the approximately 1,300-acre site where Jointa-Galusha, LLC. ("Jointa" or the "Applicant") has proposed to establish a rock quarry. For the reasons more fully elaborated below, HOME's motion is denied.

Background

The Applicant proposes to expand an existing mining operation on an approximately 1,300-acre parcel of land it owns in the Town of Hartford, Washington County. The proposed mine would occupy approximately 190 acres near the center of the parcel. The mine will remove consolidated rock and include an aggregate processing operation that will provide aggregate materials for the construction and manufacturing industries. The mine is expected to have a life of between 50 and 100 years, depending upon market conditions.

The DEC administrative hearing process on this application began on January 17, 2001, with a legislative hearing to receive unsworn comments about the application and the Draft Environmental Impact Statement (DEIS). An issues conference was then held on March 27 and March 28, 2001, in the Town of Hartford, New York.

Members of HOME spoke at the legislative hearing, filed a petition for full party status, and were represented by counsel at the issues conference where they proposed eleven issues for adjudication. The issues ruling will be forthcoming shortly.

The Instant Motion

HOME filed this motion on April 13, 2001. By its motion, HOME seeks a ruling granting HOME and/or their representatives access to the approximately 1,300-acre site, to conduct an investigation and site survey, drilling or other sampling or testing pursuant to 6 NYCRR 624.7(c)(4). Second, HOME has moved for leave to supplement their petition for party status within thirty days following completion of the investigation pursuant to 6 NYCRR 624.5(b)(5).

Both the Applicant and the Staff of the Department of Environmental Conservation ("DEC Staff") opposed the motion with submissions dated April 27, 2001.

Discussion

HOME seeks access to the site to obtain information regarding: (1) the presence of rare and/or endangered species; (2) delineation and classification of wetlands; (3) the water budget for the on-site wetlands; (4) the existence of karst, caves and other unique geologic features; (5) linear features indicative of fractures or other high permeability features which could affect groundwater; and, (6) archeological resources. These six proposed areas of investigation are nearly identical to the factual issues HOME initially proposed for adjudication.

In essence, HOME's motion, if granted, would completely reconfigure DEC's administrative hearing process by adding a step between the issues conference and the issues ruling. This step would allow persons who have applied for party status access to the site of a proposed project to conduct a wide ranging exploration and investigation of the site. Following this site visit, HOME has requested an indeterminate amount of time to complete its investigation, followed by a thirty day period in which HOME would amend its petition for party status. The Applicant and DEC Staff would be afforded an opportunity to review the amendment, and thereafter, HOME would seek to reconvene the issues conference. DEC's administrative process is not intended to function in this manner.

6 NYCRR Part 624 clearly sets forth the sequence of events related to an administrative hearing for permit applications, such as the one filed by Jointa. Following the appropriate public notice, a legislative hearing is held to receive unsworn comments from the public. Intervenors are then afforded the opportunity to file a petition for party status, as HOME did in this case. At the issues conference, the statutory parties, DEC Staff and the Applicant, as well as any persons who have filed petitions for party status, discuss the issues proposed for adjudication. This is precisely what occurred in this case on March 27 & 28, 2001. After the issues conference, the ALJ weighs the information to decide which issues are appropriate for adjudication, and who should be granted party status. Following appeals to the Commissioner of DEC, a final list of issues for adjudication and parties is established. Then, and only then, will an ALJ grant an intervener's request for access to the site of a proposed project, except in unusual circumstances.

The cases cited by HOME do not support HOME's position that at the end of the issues conference, intervenors should be allowed an opportunity to conduct site investigations, take a month to analyze the data, amend their petition for party status and reconvene the issues conference. The only judicial case cited is the Town of Northumberland v. Sterman, 246 A.D.2d 729 (3rd Dept. 1998), leave to appeal denied, 92 N.Y.2d 801 (1998), in which the court ruled that an intervenor (the Town of Northumberland) should have been granted access to the site of a proposed landfill. However, in Northumberland the motion for site access was brought after the Town had been granted party status and after the issue for which site access was sought had been certified as adjudicable. Here, HOME has not been granted party status, nor have any issues been deemed adjudicable, because the issues ruling has not been released yet.

The administrative cases HOME cites also do not support granting HOME's motion. In Administrative Law Judge (ALJ) DuBois' July 11, 2000, ruling in the Matter of the Application of Palumbo Block, 2000 WL 1207732, the ALJ did grant access to the site of a proposed mine before an issues ruling, and before the intervenor had been granted party status. However, this access falls into the exception to the general rule that site access is not permitted until party status is granted and an issue is deemed adjudicable. In Palumbo, the ALJ granted site access for the limited purpose of taking small soil samples to evaluate the intervenor's contention that the site contained 'farm dumps' that may contain quantities of discarded pesticides, and that nutrients may enter wetlands due to the spreading of liquid manure. The sampling was limited to these two narrow issues. In contrast, HOME seeks permission to conduct a far-reaching, on-site investigation related to the numerous issues it raised in its petition. In addition, the Ruling in Palumbo was not appealed.

HOME also cites to the Commissioner's Interim Decision in In the Matter of Peckham Materials , 1992 WL 97728 (Jan. 27, 1992). Peckham dealt with a situation where the Commissioner determined that additional information would be required from the applicant in order to provide a sound basis for a decision on the application. The request for that information came from the Department, not from an intervenor. Moreover, the adjudicatory process in Peckham was in its later stages, and new information led the Commissioner to conclude that further inquiry was warranted.

What HOME is asking for is not contemplated in DEC's regulations, not supported by case law, and not consistent with the decades-old process used in permit application hearings.

Conclusion

For the reasons set forth above, HOME's motion for access to the site of the mine proposed by Jointa is denied.

_____________/s/_____________
P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
May 16, 2001

TO: Jointa Service List

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