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Kula, Steven J. - Supplemental Ruling, February 7, 1996

Supplemental Ruling, February 7, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of Steven J. Kula for a Mined Land Reclamation Permit

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

SUPPLEMENTAL
RULING
ON PARTY STATUS

February 7, 1996

The present ruling is on the petition for party status which was submitted by the Citizens for Naples Valley, Inc. ("Citizens for Naples Valley"), to intervene in the permit hearing on the above application. The petition for party status is denied. The application is remanded to the Department Staff to complete processing of the application consistent with the stipulation which was agreed to by the Applicant, the Town of Naples and the Department Staff, subject to the outcome of any appeal of this ruling.

Procedural Background

The hearing is on the application by Steven J. Kula for modification of an existing Mined Land Reclamation Permit for his mine in the Town of Naples, Ontario County. This is a permit under Environmental Conservation Law ("ECL") Article 23, Title 27 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420 through 425. The project is also subject to a General Permit for storm water discharges under the State Pollutant Discharge Elimination System ("SPDES", ECL Article 17, Title 8).

The hearing procedures are governed by 6 NYCRR Part 624, as amended effective January 9, 1994. In addition to the hearing procedures, there is an Organization and Delegation Memorandum (O&D Memorandum 94-13, "Effect of Stipulations on Decision-Making in Permit and Enforcement Hearings," dated May 5, 1994) which is relevant to the present hearing. A copy of this O&D Memorandum was sent to the parties on August 17, 1995; a copy is enclosed with Ms. Moses's copy of the present ruling.

The application is for expansion of an existing sand and gravel mine. The expansion as proposed in the application would add 31.8 acres to the presently permitted 10.2 acre mine, for a total area of 42 acres. The Applicant would also add a gravel washing process which would use water from a well on site and which would involve the addition of ponds on the site.

The Department of Environmental Conservation (the "Department"), as lead agency under the State Environmental Quality Review Act ("SEQR", ECL Article 8), initially issued a negative declaration finding that the project would not have significant environmental impacts and that no Environmental Impact Statement ("EIS") was necessary. Following comments from the Town of Naples and local residents, the Department rescinded the negative declaration on August 16, 1994 and issued a positive declaration. This required that the Applicant prepare an EIS for the project, which was submitted in late 1994.

A hearing for public comment on the application for the proposed permit modification and on the DEIS was held on April 10, 1995 at the Naples High School. On April 11, 1995, an issues conference took place at the Naples Fire Hall, for discussion of what issues might require adjudication and which entities would participate as parties in an adjudicatory hearing on the application.

The Town of Naples (the "Town") was the only entity that requested party status to participate in the adjudicatory portion of the hearing by the deadline for such petitions, which was April 7, 1995 as stated in the Notice of Hearing. The Town was granted full party status on June 8, 1995, in the ruling on issues and party status. Pursuant to 6 NYCRR 624.5(a), the Applicant and the Department are parties to the hearing.

The June 8, 1995 ruling identified a number of issues for adjudication and excluded certain other proposed issues. The Applicant and the Department Staff appealed the issues ruling. On August 11, 1995, Commissioner Michael D. Zagata issued an Interim Decision regarding the appeals, which identified noise as the only issue for adjudication.

On August 16, 1995, the Applicant and the Town notified me that they were interested in trying to settle the matter and they agreed to meet about this in early September. The hearing was tentatively scheduled to be held on October 11 and 12, 1995, if necessary. On September 8, 1995, counsel for the Applicant notified me that the parties had reached a tentative agreement. On September 11, 1995, I wrote to the parties about the procedures for finalizing such an agreement. The October 11 and 12 hearing dates were canceled on October 5, 1995.

Several telephone conference calls involving the parties and me took place during the fall of 1995 regarding the status of the settlement discussions. On January 17, 1996, I received a petition for full party status from Citizens for Naples Valley, which adopted the positions of the Town on five proposed issues that the Interim Decision had determined did not need to be adjudicated, and which sought to participate in adjudication of the noise issue. The Applicant and the Department Staff opposed the petition.

On January 25, 1996, the parties sent to me a Stipulation of Settlement, signed by Richard S. Mayberry, Esq. of behalf of the Applicant, Edward J. Brockman, Esq., on behalf of the Town, and Lisa Perla Schwartz, Esq. on behalf of the Department Staff. This last of these signatures was dated January 25, 1996. In addition to the stipulation of settlement, which involved all of the parties, there was a separate agreement between the Applicant and the Town which was signed on December 30, 1995, a copy of which was sent to me by Ms. Schwartz with her letter of January 23, 1996. Ms. Schwartz's letter stated that certain terms of the agreement had been incorporated into the draft permit. As stated in my letter of February 7, 1996 to Ms. Schwartz, I am remanding the application to the Department's Region 8 Staff, in accordance with O&D Memorandum 94-13, to complete the processing of the application and to finalize the EIS. Final issuance of the permit is subject to the outcome of any appeal which may be filed with the Commissioner regarding the present supplemental ruling on party status.

Petition for Party Status

The petition for party status asserted that the agreement between the Town and the Applicant does not adequately address the noise issue and that noise levels are not sufficiently mitigated. Citizens for Naples Valley sought to participate in place of the Town to address the noise issue at the hearing. Citizens for Naples Valley, while recognizing that the Interim Decision had excluded five other issues from adjudication These five issues may be summarized as: (1) the setback distance between the property boundary and the excavation, (2) steepness and benching of the mine, (3) mitigation of visual impacts through additional vegetation, (4) storm water runoff, and (5) two permit conditions, concerning groundwater and nearby wells, which the Interim Decision stated were unnecessary. , adopted the Town's previous position on these issues since Citizens for Naples Valley wished to preserve these issues for purpose of a possible CPLR Article 78 proceeding.

This petition was dated December 22, 1995 but was mailed to me with a letter dated January 16, 1996. I received it on January 17, 1996. The petition was mailed after the date of the Town's agreement with the Applicant but before the date of the Stipulation of Settlement. Citizens for Naples Valley submitted its petition for party status after the April 7, 1995 deadline for such petitions and is subject to the provisions of 6 NYCRR 624.5(c) (late filed petitions for party status).

The petition states that the reason why Citizens for Naples Valley is requesting party status at this stage of the process, rather than earlier, is that the interests of its members were being substantially represented through the Town's participation in the hearing. Citizens for Naples Valley is essentially seeking to intervene in the hearing because the Town has decided to settle the matter (although the petition characterizes this as the Town electing to withdraw from the adjudicatory process).

Even with a timely petition for party status, a potential party would need to raise a substantive and significant issue or demonstrate that it can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party (6 NYCRR 624.5(d)(1)(ii)).

Citizens for Naples Valley acknowledges that five of its issues have already been determined by the Commissioner to be subjects on which no issue was raised by the Town. Under the August 11, 1995 Interim Decision, these five issues would not be adjudicated. The only issue which would have been adjudicated is the noise issue, and all of the three current parties to the hearing have reached an agreement under which it would no longer be necessary to develop an adjudicatory hearing record on the noise issue. Citizens for Naples Valley would not be in the position to contribute to development of the record since no adjudicatory hearing record would be developed.

Citizens for Naples Valley's letter of January 30, 1996 describes what they view to be the deficiencies in the agreement, as it pertains to noise. They are asking that I review the agreement among the three current parties and find that it does not resolve the noise issue nor minimize the noise impacts.

In support of this request, Citizens for Naples Valley cite a case involving a court's review of a proposed settlement Modern Landfill v. Town of Lewiston, 181 A.D. 2d 159, 585 N.Y.S. 2d 921 (4th Dept., 1992)., and assert that the ALJ is not required to merely accept the proposed Stipulation in the present hearing. The procedure here is different, however, and is set forth in O&D Memorandum 94-13. That memorandum specifically states that the former procedures, under which ALJs reviewed and passed onto the Commissioner stipulations that resolved hearings, were unnecessary and that a new procedure was being established. O&D Memorandum 94-13 states that when the parties file a settlement resolving all issues in a permit hearing, "The ALJ's involvement in this instance is ministerial and is solely for the purpose of closing the record."

O&D Memorandum 94-13, on page 2 in discussing stipulations among the "parties," states that since a stipulation may occur before a determination of those who have party status, the term "party" is used in the memorandum to include persons who have applied for party status and who have not received a final denial or acceptance (emphasis added). This would not, however, require that Citizens for Naples Valley be treated as a "party" in the procedure regarding stipulations since in the present case there has already been a determination of those who have party status, i.e., the June 8, 1995 ruling on issues and party status. Citizens for Naples Valley did not request party status until months after this determination had been made.

The parties to the hearing have reached a settlement of this matter. Citizens for Naples Valley is now asking to become involved as a party in the hearing, based on alleged deficiencies of the settlement. Although the Stipulation of Settlement document itself was not signed until after the date of the petition for party status, the petition was submitted in reaction to the settlement. The petition came too late in the hearing process, since the settlement essentially ended the hearing process.

Ruling

Citizens for Naples Valley's request for full party status to participate in this hearing is denied.

Appeals

Rulings on party status may be appealed to the Commissioner pursuant to 6 NYCRR 624.8(d). Any appeals of the present ruling must be submitted to Commissioner Michael D. Zagata (NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233), to be received by close of business February 21, 1996. Please send one copy of any such appeals to the Commissioner plus two copies to me, and a copy to each of the persons to whom this ruling is addressed.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
February 7, 1996

To:

Lisa P. Schwartz, Esq.

Richard S. Mayberry, Esq.

Edward J. Brockman, Esq.

Brenda C. Moses, Esq. (w/encl.)

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