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Lane Construction Company - Letter Ruling, January 29, 1997

Letter Ruling, January 29, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Office of Hearings and Mediation Services,
Room 423 50 Wolf Road, Albany, New York 12233-1550
Tel: (518) 457-3468;
Fax: (518) 485-7714
Bulletin Board Service: (518) 485-7715

Robert P. O'Connor, Administrative Law Judge, GroupWise E-Mail: rpoconno

John P. Cahill, Acting Commissioner, Internet E-Mail: robert.o'connor@dec.mailnet.state.ny.us

January 29, 1997

Joan Leary Matthews, Esq. Gordon, Siegel, Mastro, Mullaney,
Gordon and Galvin, P.C. 670 Franklin Street Schenectady, New York 12305

Re: Lane Construction Corporation

DEC Project No. 4-3830-00046/00001-0

This is in response to your January 13, 1997 request on behalf of the Nassau Union of Concerned Citizens that the testimony on health impacts in the above captioned matter be adjourned until sometime in June. NUCC's proposed witness on the health impacts issue, Dr. Cullen, will be on sabbatical to South Africa and will not be available to testify until June at the earliest. You reason that this matter has already been adjourned numerous times, some of which have been lengthy periods, and for various reasons; therefore, a five month wait to receive testimony from this witness is insignificant in view of the overall history of this case.

Mr. Potter, on Lane's behalf, opposes the adjournment on the basis it is highly prejudicial to the Applicant. The Applicant's rationale is essentially that it is inexcusable for NUCC's witness to advise NUCC of his unavailability only two weeks before departing the country for five months. Had Mr. Potter and the rest of the parties known of this scheduling problem earlier on, various measures could have been taken to receive Dr. Cullen's testimony before his sabbatical began. The Applicant's position is that the requested delay is unwarranted and should be denied.

In a proceeding such as this one, by the very nature of the rules governing processing of permit applications and the permit hearing procedures, the pre-hearing schedule of events is largely determined by an applicant. The adjudicable issues regarding a permit application will not be scheduled for a hearing unless and until the applicant is prepared to go forward. As has been stated over and over again in this proceeding, it is the applicant's burden to support its application. Therefore, it is understandable that an applicant would wish to proceed with caution and ensure its witnesses, testimony and evidence were complete and comprehensive to satisfy its burden of proof.

In the instant case, various of the pre-hearing adjournments were requested by Lane, in its efforts to provide the parties with information and documentation to support various portions of its applications. On the other hand, several adjournments and/or extensions have been requested by and granted to the Intervenors, as well. In general, the requests for adjournment/extensions of deadlines, whether from Lane or the Intervenors, have been liberally granted, in hopes that adequate time for preparation before the formal hearing commenced would shorten the time frame and further the efficiency of the actual hearing.

Once an application reaches the adjudicatory hearing stage, however, it is the ALJ's responsibility to control the hearing process (6 NYCRR 624.8). In a case such as this, with multiple parties and the need to coordinate the availability of all the participants and the witnesses on any given date, scheduling of the hearing days can be difficult at best. In my view, despite the delays which have occurred in the distribution of pre-filed testimony and the relatively lengthy periods between the hearing days to consider each of the issues dealt with so far, we have been on track to complete the formal hearing process by approximately the end of March 1997.

This schedule, of course, assumes the Applicant will have its SPDES application available for review within the next few weeks, such that the mandatory 30 day public notice and comment period may be satisfied prior to considering the SPDES application at the conclusion of the hearing. We are already scheduled to deal with the dust/air quality issues in early to mid-February, commencing with the Applicant's case on February 5, 1997. It makes sense, chronologically, to follow the dust/air quality impacts with consideration of the issue of any health impacts which may be related to dust/air quality in late February or early March. The schedule I anticipate, then, would have the inter-related SPDES/surface water, groundwater and landfill impacts the last to be adjudicated prior to the end of March, to be followed by a schedule for submission of closing briefs and then the formal closing of the hearing record.

In my judgment, the above schedule represents the optimal hearing schedule available in the instant proceeding. This schedule could potentially generate a Decision in this matter by approximately mid-summer. Significant lengthening of this schedule would most likely delay a Decision until late summer or early fall.

I have considered the circumstances of NUCC's request for what would be an approximately three to four month adjournment and balanced them with the need to maintain order and momentum in the hearing process. A Decision in this matter should not be unreasonably delayed. Fairness requires that the Department be fair to all parties, including applicants, as well as intervenors. It is my ruling, consequently, in order to maintain the efficiency and impetus of the hearing process and not unduly delay the conclusion of this matter, the request, at this juncture, to defer the health impacts testimony from NUCC's witness until some unspecified time in June is unreasonable and must be denied.

As an alternative, NUCC has the option of securing another witness to testify regarding the potential health related impacts of the proposed project. However, any such witness should be prepared to testify on this issue not later than the early part of March 1997, with pre-filed testimony to be available to the other parties not later than March 1, 1997.

Very truly yours,

/s/
Robert P. O'Connor
Administrative Law Judge

cc: Service List

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