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Palumbo Block Company, Inc. - Ruling 2, July 11, 2000

Ruling 2, July 11, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of PALUMBO BLOCK COMPANY for a Mined Land Reclamation Permit for
a proposed mine in the Town of Ancram, pursuant to Article 23, Title 27 of
the Environmental Conservation Law

July 11, 2000

RULING

DEC Application No. 4-1020-00035/00001

Summary

The Town of Ancram and the Harlem Valley Preservation Alliance (the "Intervenors") have requested a ruling allowing them access to the site of the above project, to examine the site for a number of reasons and to take soil cores. The Applicant opposes granting such access. As discussed below, this ruling grants the Intervenors the requested access.

Background

The proposed sand and gravel mining would take place in the Town of Ancram, Columbia County, on land which the Applicant has an option to buy. As discussed at the issues conference and in correspondence dated September 27, 1999 from Michael Higgins of the DEC Region 4 Office, the land which the Applicant would be buying is located both in the Town of Ancram (Columbia County) and in the Town of Northeast (Dutchess County). The boundary of the property was further clarified in an undated memo from the Applicant's consultant Dr. Roy Budnik to Mr. Higgins which was distributed at the issues conference on October 5, 1999. The removal of minerals is proposed only in the portion that is in the Town of Ancram. The area to be mined is west of and uphill from a state-regulated freshwater wetland (wetland CO-26). The most recent mining map, as revised on January 5, 2000, shows berms which would be located along the eastern side of the area to be mined. The area that would be mined is currently farm land.

The hearing began with a public comment session on July 20, 1999. The Intervenors submitted a petition for party status in September, 1999. There have been three days of issues conference in the fall of 1999. I have not yet made a ruling on issues and party status, pending the decision in the DEC enforcement hearing in Region 3 in which Palumbo Block Company is one of the respondents. As discussed in my October 22, 1999 ruling, the record of the issues conference is to remain open until there is a settlement or final adjudication of this enforcement action.

The Intervenors originally requested access to the site in order to evaluate whether freshwater wetlands under the jurisdiction of the U.S. Army Corps of Engineers were present on the site. On October 27, 1999, the Applicant submitted a report which had been done by a consultant, Matthew D. Rudikoff Associates, Inc., regarding whether federally-regulated wetlands occur in several areas on and adjacent to the site. The report concluded that none of the four areas which were examined contained federal jurisdictional wetlands within the proposed mining limits. The Applicant also requested that the Corps of Engineers have a representative visit the site with regard to whether federally-regulated wetlands are on the site. On January 13, 2000, Laura Zeisel, Esq., the Applicant's attorney, notified me that representatives of the Corps of Engineers had confirmed that the only federal jurisdictional wetlands on the property lie within the state designated wetlands. On February 21, 2000, Dr. Budnik transmitted a letter from the Corps of Engineers regarding this. The state-designated wetlands are outside of the area to be mined and no DEC wetland permit is required for the mining project.

In a recent issues ruling, site access by an intervenor was found to be warranted in order to verify a federal wetland delineation, although once the Corps of Engineers had delineated the wetland the information would be of use only to the extent that the intervenor could persuade the Corps to reconsider its findings (In the Matter of Waste Management of New York, LLC, Issues Ruling dated December 31, 1999, page 62-63.)

On the second day of the issues conference (October 5, 1999) the Intervenors stated additional reasons why they were seeking access to the site. The first of these reasons relates to reports of recent spreading of liquid manure on the site and whether the nutrients (particularly but not solely nitrogen) added by this process would cause adverse impacts to the wetland when topsoil is removed and placed as berms on the east side of the mining area, near the wetland.

The second reason relates to one or two farm dumps which are reportedly on the site and the question of whether these contain discarded pesticides that might be unearthed or moved by the mining process. Based on the sketch map which was included with the Intervenors' petition for party status (Petition, Ex. C, p. 2) it appears that one of the farm dumps may be in the adjacent area of the wetland and might not be disturbed but that the other is within the mining area.

The Intervenors propose to take soil cores, as discussed in the December 13, 1999 letter from Warren Replansky, Esq. This would involve removing soil with a hand-held auger for off-site testing. The Intervenors estimated that this would involve 5 to 10 holes, an inch or two in diameter at most, and that the holes would be filled back in. The Intervenors also requested to remove small quantities of top soil from various locations, for off-site testing, using a trowel or small hand-held shovel. These holes would also be filled in and graded. On the last day of the issues conference, the Intervenors also proposed to do a Phase 1 environmental study, which would include visual inspection on the site.

Discussion

The Applicant opposed the Intervenors' request for site access, on the basis that the Intervenors' reasons for seeking site access were speculative. The Applicant argued that manure is routinely used on farms, that there is no indication of past or future harm to the wetland due to fertilizer use, and no proof of what is being put on the site currently other than reports of odors that might be due to liquid manure. The Intervenors contended, however, that local residents have observed trucks spraying material on the site, a practice different from earlier applications of manure, and that applying liquid manure is a relatively new technology. With regard to the farm dump, the Applicant argued that there is no allegation that it is anything other than an ordinary farm dump.

The Applicant made reference to on-site testing in the case of the Saratoga County landfill application (see Town of Northumberland v. Sterman, 246 A.D.2d 729, 667 N.Y.S.2d 505 (3d Dept., 1998)), in which the Court determined that the Town of Northumberland should have been granted access to the landfill site to conduct soil tests. The Applicant argued that the Town of Northumberland had done off-site testing and had proof of a substantive and significant issue, but that the Intervenors in the present case have no comparable proof.

The Department Staff also portrayed the Intervenors' arguments as being speculative, stating that there is no proof of wetland impacts from presently-occurring farm runoff at the site and no proof that the farm dumps contain anything more than garbage. The Department Staff stated that if dumped waste is excavated, the Applicant would be required to dispose of it properly, or could decide to mine around it and not disturb it. The Department Staff took the position that there would be no runoff from the site.

The question of how drainage on the site will be controlled and whether or not it will result in runoff to the wetland is in dispute and may become an issue for adjudication in the hearing. Silt, nutrients and contaminants in runoff, and nutrients and contaminants in groundwater that enters the wetland, may produce significant adverse impacts in this situation due to the vulnerability of the particular wetland and species in it. The extensive information presented by the Intervenors in their offer of proof portrays the wetland as including fen vegetation and habitat which occurs in low-nutrient conditions, and species which are dependent on the habitat and water quality that exists in the wetland at present.

The history of the site and the observations described thus far by the Intervenors would lead a reasonable person to inquire further about both the nutrients in the soil and the farm dumps. Particularly, the Intervenors have stated that farmers often disposed of unused pesticides in dumps on their farms, including disposing of pesticides which had become prohibited, and that some of these were persistent pesticides. The Intervenors have also offered the testimony of local residents who have recently observed malodorous material, probably liquid manure, being placed on the site. If soil containing pesticides or high amounts of nutrients is excavated and piled as berms along the east side of the mining area, and if runoff from these berms is not controlled adequately, there may be significant adverse effects on the wetland even though the mining and construction of berms would all occur outside of the 100 foot adjacent area of the wetland. This is not speculation, but is an interpretation based on the information currently available in the absence of additional on-site information, which the Applicant has thus far refused to allow the Intervenors to obtain. It is not an irrational interpretation. Whether or not it is the interpretation that would be adopted in a hearing report or a decision of the Commissioner remains to be seen, after the hearing record has been completed.

The decision should be based on actual observations, rather than on argument about which party has the burden of proof or the burden of going forward. Particularly with regard to the farm dump, it would be preferable to investigate the potential adverse impacts now and properly dispose of any materials that require disposal, rather than relying on the Applicant's employees to recognize and to deal properly with such materials (which may have leached out into the soil) in some future year and in the course of excavating sand and gravel on the site.

6 NYCRR §624.7 contains provisions regarding discovery in DEC permit hearings, including provisions for inspection of property and access to real property for testing. Prior to the issues conference, discovery is limited to that afforded under 6 NYCRR 616 Part (access to records, under the Freedom of Information Law and related provisions of the Public Officers Law), unless the ALJ finds "extraordinary circumstances" that support granting petitions for further discovery (624.7(a)). Different requirements apply during a time period within 10 days after service of final designation of issues (624.7(b)), during which additional discovery methods are allowed to the parties as of right. These include inspection of property, except that "drilling and other intrusive sampling and testing is not provided as of right" (624.7(b)(3)). A third subdivision of this section (624.7(c)) governs discovery by permission of the ALJ at various times or at unspecified times during the hearing process. This third section includes a provision for accessing real property in the custody or control of another for the purpose of conducting drilling or other sampling and testing (624.7(c)(4)).

The issues conference has taken place on three days and appears to be close to completion, so the hearing is no longer at the stage of being "prior to the issues conference." It has not, however, moved to the stage of the process contemplated in 624.7(b) since I have not yet made an issues ruling and there has not yet been an opportunity for appeals of such ruling to the Commissioner.

Discovery at this stage of the present hearing appears to be governed primarily by 624.7(c)), i.e., by permission of the ALJ. At this stage of the process, I am evaluating the Intervenors' request for discovery based on the information and arguments that have been put into the record by the potential parties during three days of issues conference and related correspondence. Among the things which I am taking into account are whether the requested discovery is likely to contribute to developing the record about potentially substantive and significant issues, the arguments which have been made about how the absence of certain information should be interpreted, whether the requested discovery would cause unnecessary delay or prejudice to a potential party, and the efficient conduct of the hearing generally.

The Intervenors' request for access to the site is reasonable, and as stated below I am granting their request to access the site and take small soil samples. The information which the testing will produce will contribute to the record with regard to potential impacts of the project. At present, the Applicant and the Department Staff argue that there is no specific or scientific evidence regarding increased nutrient runoff or release of contaminants from the dump, but at the same time oppose allowing the Intervenors on site to collect evidence relevant to these questions. The Intervenors have presented persuasive information that indicates conditions which may lead to significant adverse environmental impacts if these conditions are not dealt with properly, as discussed above, and the Intervenors should be allowed to obtain site-specific evidence. This is particularly so since the Applicant and the Department Staff oppose adjudication of issues related to these problems in the absence of more information.

Allowing the proposed site access and sampling is consistent with the reasoning of the Northumberland decision, although I am making this ruling at an earlier stage of the process than occurred in that hearing. In the Northumberland case, the court stated that, "Moreover, although the Commissioner indicated that 'the permeability information of both [the Town's expert] and the County should be evaluated in the hearing,' his refusal to allow the town's expert to gather any such information from the proposed site effectively prevented the very analysis he directed be undertaken" (supra, at 731). As in the Northumberland case, allowing the requested access to the mine site would avoid this sort of circular situation.

It is not necessary that the Intervenors present sampling data from adjacent properties in order to justify their request for site access since, with the possible exception of some information that might be relevant to the wetlands delineation, data from adjacent properties would not necessarily indicate the conditions that exist on the project site. There has been no claim in the hearing record that liquid manure is being applied on adjacent properties, nor that they contain farm dumps with the same wastes as the ones on the site.

The information which the Intervenors propose to collect on site is relevant to whether certain issues are substantive, which is a question on which the Intervenors have the burden of going forward. It is also information which could contribute to finding and preventing potential pollution before it occurs, rather than taking the risk of having to deal with it after the fact. Depending on what is found, the proposed issues may be significant in the sense that they would have the potential to result in the denial of the permit, a major modification to the permit, or imposition of significant permit conditions in addition to those proposed in the draft permit (624.4(c)(3)). In the absence of the on-site information, it is likely that I would identify issues for adjudication, based on the information in the issues conference record at present. The on-site information may serve to focus or to resolve certain issues.

While the Department Staff took the position that there would be no "regulatory implications" if waste pesticides were found in the soil in and around the farm dump which the Intervenors depict as being within the area to be mined, this position appeared to be based on the question of whether additional permits would be necessary. It did not appear to take into account the evaluation and avoidance of adverse environmental impacts required under the State Environmental Quality Review Act ("SEQRA," ECL Article 8) or the prevention of pollution required as part of the policies under the Mined Land Reclamation Law (ECL §23-2703.1). The Department is the lead agency for review of this project under SEQRA. These requirements are also relevant to impacts of nutrients in runoff from the site, as well as management of drainage and of stockpiled materials. The latter are also addressed in the mining regulations (see, for example, 6 NYCRR 422.2(b)(4), 422.2(c)(3)(v)(b), and 422.2(c)(4)). While the Department Staff cites a condition in the draft permit as prohibiting runoff from the site, there has been controversy throughout the issues conference about whether the mining plan would actually function in this manner, as well as controversy about the volume and nature of the materials to be used in building the proposed berms.

The Department Staff cited the Commissioner's June 15, 1998 Interim Decision In the Matter of WHIBCO, Inc. (a hearing on a sand and gravel mine in DEC Region 5) as stating that the issue which was proposed there about an old dump in a proposed mine site was speculative, that the Department Staff was investigating whether any dump exists on that property, and that if something was found the Region 5 Staff promised to re-evaluate the situation. In that case, however, the 'existence of any dump, its size, location or character, are simply unknown" (Interim Decision, p. 4). In contrast, here the approximate location of two farm dumps are marked on a map and described in a report submitted by the Intervenors as part of their petition for party status (Petition, Ex. C, pp. 2 and 6) and reasons have been provided as to why such dumps may contain discarded pesticides or other hazardous materials. No party has seriously contested whether the dumps exist. Also, in contrast to the WHIBCO case, the Region 4 Department Staff is not conducting or requiring any further investigation of the dumps on the site of the proposed Palumbo Block Company mine. The Department Staff took the position that if any waste is found, the Applicant would need to decide what to do about it in accordance with the regulations in effect at that time.

The sampling proposed by the Intervenors in the present case is minimally intrusive since it would involve taking small soil samples and filling in the holes after the sampling was done.

Under 6 NYCRR 624.7(c)(4), when access is granted for sampling or testing, all parties must be given notice of such activities and be allowed to observe and to take split samples or use other specified methods of verification. I am requesting that the Intervenors, the Applicant and the Department Staff confer about arrangements for this among themselves, and agree on a date on which the site visit would take place. If disputes arise regarding the procedures involved I could be asked to specify them further, but it would be simpler if this could be done by agreement among the potential parties.

Under the permit hearing procedures, if any of the potential parties wishes to appeal this ruling they would need to seek leave from the Commissioner to file an expedited appeal (624.8(d), 624. 6(e)).

Ruling

The Intervenors' request to inspect the property and to take samples as described in Mr. Replansky's letter of December 13, 1999 is granted, subject to the requirements in 6 NYCRR 624.7(c)(4) regarding notice and the opportunity to observe and verify sampling.

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

Dated: Albany, New York
July 11, 2000

TO: Persons on Interim Service List

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