New York State Thruway Authority (Stewart Airport) - Interim Decision, April 25, 2002
Interim Decision, April 25, 2002
NYS Thruway Authority/Stewart Airport - Interim Decision
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Albany, New York 12233-1010
In the Matter
- of -
Application for a Freshwater Wetlands Permit
pursuant to Article 24, Title 7 of the
Environmental Conservation Law (ECL), a
Water Quality Certification pursuant to Clean
Water Act §401, a State Pollution Discharge
Elimination System ("SPDES") Permit pursuant
to Article 17, Title 8 of the ECL for the
I-84/Drury Lane Interchange for Stewart
Airport Access Improvement
New York State Thruway Authority
Application No. 3-3399-00032/00001
April 25, 2002
Interim Decision of the Commissioner
Introduction and Background
This Interim Decision relates to the Ruling on Issues and Party Status ("Ruling") of Administrative Law Judge ("ALJ") Molly T. McBride dated January 25, 2002. The Ruling addresses various issues raised in connection with the application of the New York State Thruway Authority ("NYSTA" or Applicant") for a wetlands permit and water quality certification from DEC to provide a new access road from Interstate 84 ("I-84") to Stewart Airport.
Two sessions of a Legislative Hearing, open to members of the public, were held on October 30, 2001. An Issues Conference for those interested in party status was held on November 13, 2001, and the record of the Issues Conference closed on December 10, 2001. The ALJ directed that appeals to the Ruling be filed not later than February 15, 2002 and that responses be filed by March 1, 2002. A timely appeal was filed by Riverkeeper, Inc., ("Riverkeeper") and the Stewart Park and Reserve Coalition ("SPARC"). A timely reply brief was filed by NYSTA in response to the appeals of Riverkeeper and SPARC.
The project is located in the Towns of Newburgh, New Windsor and Montgomery in Orange County and is intended to improve vehicular access to Stewart Airport. It would include the construction of a new interchange with I-84 at Drury Lane as well as the reconstruction of Drury Lane south to Route 207 and north to I-84. The project also includes a new four- lane "East-West" connector road (approximately one mile long) connecting Drury Lane on the west side of the airport property with "C" Street on the east, which is adjacent to and provides an approach to the passenger terminal. The project as proposed would require the filling of 5.37 acres of freshwater wetlands (5.05 acres of which are state regulated) and 1.87 acres of open water.
This project is a "Type I" action under the State Environmental Quality Review Act ("SEQRA"). NYSTA, as lead agency, issued a positive declaration for this project on December 12, 1997. A Draft Environmental Impact Study ("DEIS") was prepared in 1999 by NYSTA and the New York State Department of Transportation ("DOT") with the cooperation of the U.S. Department of Transportation and the Federal Highway Administration ("FHWA"). In March 2000, a Final Environmental Impact Study ("FEIS") was issued. A SEQRA Record of Decision ("ROD") was issued in June, 2000 for this project.
A Freshwater Wetlands Permit pursuant to Article 24, Title 7 of the Environmental Conservation Law ("ECL") is required in connection with the filling of the freshwater wetlands. Additionally, a Water Quality Certification pursuant to the federal Clean Water Act §401 and a State Pollution Discharge Elimination System ("SPDES") Permit pursuant to Article 17, Title 8 of the ECL for storm water discharges from construction activities is also required. Although NYSTA originally had applied for a Protection of Waters Permit pursuant to Article 15 of the ECL, it was determined by DEC staff ("Staff") that no permit is required for NYSTA, a state public corporation, under ECL §15-0501(5) and 6 NYCRR §608.5.
Additionally, a Clean Water Act §404 permit is required from the United States Army Corps of Engineers ("ACOE") for a federal wetland located on the project site, the status of which is still pending at the time of this Interim Decision.
Standards for Adjudication
An issue is adjudicable if it is raised by a potential party and is both substantive and significant. 6 NYCRR §624.4 (c)(iii). An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. 6 NYCRR §624.4(c)(2),(3).
In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR §624.4(c)(4).
Prior Department decisions establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.
The burden on the intervening party in instances where Department staff and the applicant agree on the terms and conditions of the permit is not a superficial one. See, Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256, 260-261 (3d Dept. 1988)(court upheld burden imposed on potential intervenors and further upheld the Commissioner's determination to exclude certain issues from adjudication). Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, p. 8, citing In the Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.
While the intervenor's offer of proof at the issues conference need not be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See, id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." In the Matter of Sithe/ Independence Power Partners, Interim Decision of the Commissioner, November 9, 1992.
Judgments about the strength of the offer of proof must be made in the context of the application materials, the analysis by staff, draft permits and the issues conference record. Offers of proof submitted by a prospective intervenor may be completely rebutted by reference to any of the above, alone or in combination. In such a case, it would be a disservice to the applicant and the public at large to proceed any further with time-consuming and costly litigation. See, Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990.
Where DEC staff and the applicant are not in disagreement over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by DEC staff are prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, In the Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992; see also, ECL § 70-0119(1) and 6 NYCRR §624.4(c)(4).
Rulings of the ALJ
The ALJ made two rulings on party status and four rulings on proposed adjudicable issues. SPARC was denied amicus status by the ALJ on the basis that SPARC intended to rely on the contents of the petition of Riverkeeper and offered nothing to contribute to that petition. The ALJ determined that the participation of SPARC would be duplicative and unnecessarily burden the record. The ALJ likewise denied party status to Riverkeeper because Riverkeeper, as a potential intervenor, failed to meet the burden of persuasion that any of the four issues it raised were both substantive and significant.
Riverkeeper raised four issues related to the Class II freshwater wetlands that will be impacted by the project, all of which were determined to fail to present an adjudicable issue. The first of these issues concerns whether NYSTA's project met the standards for the practicable alternatives requirement imposed by the New York State freshwater wetlands permit standards set forth in 6 NYCRR §663.5. The ALJ determined that Riverkeeper's proposed alternative route for the access road had been thoroughly evaluated by NYSTA, and Riverkeeper failed to make a satisfactory offer of proof to call that review and its conclusions into question. A second issue raised by Riverkeeper involves whether the project satisfies the need requirements of the State's wetlands regulations. The ALJ found that Riverkeeper's lack of any offer of proof caused this issue also to fail to require further review. A third issue presented by Riverkeeper concerns the adequacy of the mitigation plan to compensate for the wetlands to be lost by the project. The ALJ found that all seven alleged deficiencies were unsupported by proposed facts and were general in nature, and as such adjudication of these issues would not be allowed. Finally, Riverkeeper contended that the Applicant's failure to consider the cumulative impacts of this project with other projects being considered by other entities, as well as the resulting segmentation of the review, should be adjudicated. The ALJ again disagreed, finding that both requirements related to SEQRA and the State's wetlands standards would not allow the adjudication of this issue.
Although Riverkeeper suggests in its brief that it appeals the entire Ruling of the ALJ, it only discusses two of these issues on appeal. Riverkeeper appeals the ALJ's determinations with respect to the Applicant's examination of practicable alternatives, as well as the adequacy of the wetlands mitigation plan. Riverkeeper's brief does not address the ALJ's determinations with respect to the need for the project and whether NYSTA was required to consider cumulative impacts. Accordingly, this decision will only discuss the ALJ's determinations with respect to Issues One (practicable alternatives) and Three (mitigation plan adequacy) of the Ruling, as well as the issues regarding full party status for Riverkeeper and amicus status for SPARC.
Ability of the Project To Meet the Alternatives Standard for a DEC Wetlands Permit Riverkeeper's appeal of the ALJ's determination with respect to the adjudicability of practicable alternatives to the proposed airport access road contends that the ALJ improperly analyzed the I-87 alternative offered by Riverkeeper under SEQRA's alternatives requirements, rather than the more stringent alternatives requirements set forth in State wetlands regulations. Riverkeeper further argues that since their expert would testify that the Applicant did not properly consider its I-87 alternative, they have raised a substantive and significant issue requiring further review.
Riverkeeper's contentions that the ALJ improperly analyzed the sufficiency of NYSTA's alternatives analysis is without merit. As set forth in the ALJ's Ruling on page 6, the ALJ correctly considered whether the Applicant had considered alternatives to the proposed road pursuant to 6 NYCRR §663.5 of the Department's wetlands regulations. That provision requires, among other considerations, that any proposed activity in a Class II wetlands "be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant's objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area". 6 NYCRR §663.5(c)(2). The fact that the alternatives analysis prepared by the Applicant was contained in SEQRA documentation does not invalidate the review of such alternatives properly conducted pursuant to State wetlands requirements. Additionally, Riverkeeper's arguments that the ALJ's discussion of economic considerations indicates her review was not in accordance with State wetlands regulations but instead was pursuant to SEQRA also fail. The State's wetlands regulations specifically interpret the phrase "only practicable alternative" to include economic considerations. See 6 NYCRR §663.5(f)(2). Thus, it was entirely appropriate for the ALJ to review the record, including economic considerations such as the additional cost of the I-87 alternative as well as the impacts to a larger number of homes and businesses, to conclude that NYSTA had demonstrated that the I-87 alternative was not a practicable alternative.
Additionally, Riverkeeper has not refuted the ALJ's determination that the Applicant gave the I-87 alternative due consideration. In her decision, the ALJ recounted the following lengthy analysis undertaken by NYSTA, indicating the reasons the I-87 alternative was not practicable:
"that I-87 is a toll road and therefore a new interchange would require a toll collection; the toll facility would be close to an existing toll facility at exit 17 and is not compatible with the proposed I-84/I-87 interchange which is on the short term list of improvement projects in the study area; it is not consistent with the Stewart Airport Master Plan update and it is not compatible with the local development plans; it would mix air travel related traffic with cargo and other truck traffic through Breunig Road and the terminal circulation area and would be disruptive of the Stewart Army subpost community; it would require 83.5 acres of right of way acquisition including displacement of 3 residences and 12 businesses; it is the most expensive of all alternatives considered; by concentrating most of the improvement around the currently congested Route 33/Route 207 intersection the widening/reconstruction associated with the proposed interchange would adversely impact the Lake Washington watershed."
The ALJ also noted that the I-87 alternative would cost approximately $15 million more than NYSTA's proposal, not including land acquisition costs. The record clearly indicates the ALJ properly applied the standard for review of potential adjudicable issues in weighing the thorough analysis undertaken by the Applicant on the I-87 alternative, as well as other practicable alternatives, against the general conclusory offer of proof put forth by Riverkeeper, to reach the conclusion that Riverkeeper failed to meet its burden to offer proof in support of its position. Accordingly, the ALJ's determination in this matter will not be disturbed.
Adequacy of the Wetlands Mitigation Plan
On appeal, Riverkeeper maintains that NYSTA's mitigation plan does not meet the requirements of 6 NYCRR §663.5 and that their proposed expert testimony demonstrates that they have met the substantive and significant standard required to present an adjudicable issue. The areas discussed on appeal are limited to specific concerns relating to the insufficiency of the Applicant's hydrology and soil analysis and the inability of the mitigation plan to support the proposed substitute vernal pools. Riverkeeper also contends that the ALJ improperly resolved technical factual disputes in reaching her decision that should instead be adjudicated.
Contrary to the position advanced by Riverkeeper on appeal, an ALJ is expressly charged by the hearing regulations with the responsibility to "narrow or resolve disputed issues of fact without resort to taking testimony" (emphasis added). 6 NYCRR §624.4(b)(2)(ii). The ALJ, in discharging the duties imposed by this provision, has the particular expertise and responsibility to weigh the sufficiency of the offered proof presented by a proposed party to determine whether facts are in substantial dispute or whether only conclusory statements have been raised. It is clearly within the province of the ALJ to determine that an offer of proof has been made without factual foundation, and that adjudication is not necessary. Further, it would be inappropriate for the ALJ to conduct an adjudicatory hearing for the purpose of entertaining an academic debate between experts, without the required showing made at the issues conference. See, Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.
The responsibility of a proposed party at the issues conference stage is to offer proof that establishes a factual basis for a dispute, not merely that a dispute exists. It is not sufficient to merely raise information counter to the position of an applicant. The offer of proof must be competent, not merely contrary. Under circumstances where the Department staff and an applicant are in agreement with respect to the terms and conditions of a proposed permit, a proposed party has the burden of persuasion to offer such proof to overcome the prima facie case for the issuance of the permits made by the applicant in its environmental permit application. See, Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992.
With respect to each of the issues relating to NYSTA's proposed mitigation plan, the ALJ, in her role as the primary determiner of the facts, found that NYSTA had provided significant information to adequately rebut the conclusory challenges to the plan made by Riverkeeper. For example, Riverkeeper's sole support for its position that site hydrology was insufficient to create the proposed wetland was proffered testimony that "the site contains other areas [that] have an elevation of 360 feet and the site has not developed wetland characteristics naturally". Ruling at 9. However, in view of the contrary information set forth by the Applicant derived from actual well data taken from the site which demonstrated that water flows at 360 feet throughout the year at the site, the ALJ properly found Riverkeeper's claims to be without factual foundation, and insufficient to overcome the specific detailed hydrology information supporting the Applicant's site selection in the mitigation plan. Similarly, although Riverkeeper generally challenged the adequacy of the soil study and the presence of suitable soils at the site to maintain wetland vegetation, Riverkeeper failed to present specific objections to the types and quantity of soil at the site. The ALJ correctly applied the standard in dismissing Riverkeeper's challenge as insufficient and conclusory based upon the contrasting detail in the soil analysis presented by the Applicant which described the soil composition and the permeability of the soil conditions at the site. Finally, the ALJ, found that Riverkeeper's claims that the Applicant failed to include certain investigation and analysis with respect to the vernal pools did not present an adjudicable issue with respect to the potential failure of the proposed pools. In so concluding, the ALJ reviewed NYSTA's Vernal Pool Mitigation Feasibility Report ("Vernal Pool Report"), a 42 page document with text, maps and charts that documented the site selection process by NYSTA, and concluded that the report was quite thorough and addressed the relevant challenges raised by Riverkeeper.
On my review of the record, I find that there is more than substantial evidence in the record for the ALJ to have relied on in arriving at her conclusions with respect to the adequacy of the mitigation plan and I find nothing in the record militating in favor of their reversal.
Accordingly, the ALJ's rulings with respect to these issues are upheld.
I find that the ALJ correctly applied the standards and criteria set forth in 6 NYCRR §624.4 in denying amicus status to SPARC and its appeal is denied. Likewise, as indicated herein, Riverkeeper has failed to raise any issue that is both substantive and significant and therefore the recommendation to deny it party status will not be disturbed.
I have reviewed the ALJ's Ruling with respect to matters not specifically addressed here, and I find no reason to overturn the ALJ's findings on these other matters. Accordingly, all Rulings of the ALJ are upheld, and I direct Staff to continue the processing of the permits and certification applied for by NYSTA.
For the New York State Department
of Environmental Conservation
By: Erin M. Crotty, Commissioner
Albany, New York
April 25, 2002