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Kula, Steven J. - Decision, March 15, 1996

Decision, March 15, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Application of STEVEN J. KULA for expansion of an existing sand and gravel mine
in the Town of Naples, Ontario County, pursuant to Environmental Conservation Law Article 23

DEC Project No. 8-3238-12/1-0

DECISION

March 15, 1996

Decision of the Commissioner

Citizens for Naples Valley ("CNV") commenced this appeal to the Commissioner by letter dated February 19, 1996. CNV appeals from the February 7, 1996 Supplemental Ruling of ALJ Susan J. DuBois which denied CNV's late-filed petition for party status in this matter. For the reason given below, ALJ DuBois' Ruling is affirmed and the application is referred to Staff of DEC Region 8 for further processing and issuance of the permit.

Background

Steven J. Kula has applied to the Department for a modification to his Mined Land Reclamation Law (MRL) and State Pollutant Discharge Elimination System (SPDES) permits so that he can expand an existing sand and gravel mining operation in the Town of Naples, County of Ontario. A draft EIS has been prepared and submitted to the Department.

Public notice of the application was published in March 1995 and a legislative hearing and issues conference was held in April 1995. Members of CNV participated at the legislative hearing. CNV did not apply for party status at that time. However, the Town of Naples, which had interests similar to those of the members of CNV, applied for and was granted full party status (see Ruling of ALJ DuBois, dated June 8, 1995). Following an appeal to the Commissioner of ALJ DuBois' Issues Ruling of June 8, 1995, only one issue, noise, remained open for adjudication (See Interim Decision of the Commissioner dated August 11, 1995). As of August 1995, the only parties to the proceeding were Applicant, Staff and the Town of Naples. Thereupon, settlement discussions ensued in the autumn and early winter of 1995, so that by the beginning of 1996, the Town, Applicant and Department Staff were on the verge of signing a stipulation of settlement by which the Department would issue a final permit with special conditions, the terms of which were acceptable to all parties to the proceeding.

CNV did not agree with the Town's settlement position, however. In December 1995 it prepared a petition for full party status. It filed its petition by letter dated January 16, 1996, shortly before the stipulation of settlement was signed by the Applicant, the Town and Staff. Signed January 23 by Applicant, January 24 by Town, and January 25 by the Staff.

Ruling

CNV candidly admits that its late-filed petition is based on its disagreement with the Town, and that it had earlier relied on the Town to represent its interests. Given the divergence in points of view between CNV and the Town over the period August 1995 to January 1996, CNV petitioned to become a party to the DEC hearing so that CNV could continue to press its opposition to expansion of the Kula mining operation.

Under 624.5(b) of DEC's hearing rules, a timely petition for full party status should include an offer of proof specifying the witnesses and the nature of the evidence the petitioner expects to present, as well as the grounds upon which petitioner bases its assertion. CNV's petition for party status dated December 22, 1995 does not fulfill this requirement. CNV's petition relies on claims made by the Town's engineering consultant in April 1995. The Town later resolved those matters in the settlement. CNV's reference in January 1996 to points raised by the Town's consultant in April 1995 and later settled does not spell out an offer of proof under 624.5(b). Nor do CNV's proposals to offer testimony through Mr. Andres or Mrs. Neubauer amount to an offer of proof, being only generalized assertions in opposition.

Moreover, 624.5(c) states with respect to late-filed petitions for party status that petitioners must further demonstrate good cause for late filing, show that there will not be unreasonable delay and prejudice to other parties, and show that their participation will materially assist in the determination of the issues in this proceeding. CNV claims that the Town's agreement to settle on terms contrary to CNV's position is good cause for CNV's late filing. On the other hand, it would seem that CNV in April 1995 accepted the fact that the Town would represent the interests of its citizens. The split in viewpoints between CNV and the Town that developed after August 1995 was a risk that CNV accepted by not seeking party status on its own in April 1995. Moreover, it appears that the Town acted reasonably.

I conclude that CNV's admission to the proceeding as a party at this point would needlessly prejudice Staff, Applicant, and the Town, who have come to terms in a settlement which addresses the noise issue, and would delay the proceeding. The noise issue was initially raised by the Town, based on comments by its engineering consultant in April 1995. By October, the Town, Applicant and Staff tentatively agreed to revise permit conditions to further address noise control and other measures. An agreement dated December 30th between the Town and the Applicant identifies increased setbacks, use of drop mats to control noise, and development of berms and vegetation to deflect noise as items agreed to which address the noise issue in various respects. These items are addressed in the draft permit conditions.

CNV wants additional noise abatement measures, such as enclosing the crusher, and is disappointed that the settling parties did not adopt all of its preferences. However, the settlement did address the noise question to the satisfaction of the parties. Based on Staff's agreement to the settlement, the noise issues are addressed in a fashion which provides the necessary assurance that the permittee will construct and operate the expanded facility in compliance with the Mined Land Reclamation Law and SEQRA. I, therefore, find no basis in the record or CNV's voluminous papers on which to disturb ALJ DuBois' February 7, 1996 Ruling. CNV has failed to demonstrate that its participation would materially assist in determination of this issue, and has not offered more than a general dissatisfaction with the result in this case. To further delay this matter based on CNV's petition would serve as a disincentive to settlements.

Conclusion

Accordingly, for the foregoing reasons, the February 7, 1996 Ruling of ALJ DuBois is affirmed.

_____________/s/_____________
Michael D. Zagata, Commissioner

Dated: Albany, New York
March 15, 1996

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