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Peckham Materials Corporation - Second Interim Decision, March 15, 1993

Second Interim Decision, March 15, 1993

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
Albany, New York 12233-1550

In the Matter

- of the -

Application of PECKHAM MATERIALS CORP. for permits to excavate
sand, gravel and quarry stone, in conjunction with a processing facility, on a 92-acre site
in the Town of Easton, Washington County.

DEC Project No. 5-5326-00021/00001-1

SECOND INTERIM DECISION

March 15, 1993

SECOND INTERIM DECISION

This Interim Decision is in response to appeals filed to the February 12, 1993 rulings (the "Rulings") of Administrative Law Judge ("ALJ") Edward Buhrmaster in the captioned matter. Appeals were filed by Peckham Materials Corp. (the "Applicant") and by Save Easton Environment, the Battenkill Association of Concerned Citizens and George Houser (collectively, the "Intervenors").

Applicant's Appeals

The Applicant appeals the portion of the Rulings which holds that the Intervenors have raised two issues for adjudication: (1) the efficacy of the proposed tree planting plan; and (2) the mining and blasting impacts upon groundwater resources. The appeals are based on the premise that the issues set for adjudication by the ALJ are not substantive and significant. As stated in the recently issued interim decision In the Matter of Hyland Facility Associates,

"...It is the ALJ and not the Commissioner who is the primary fact finder and therefore the ALJ must remain the primary determiner of whether fact issues exist. ... Where the question is one of whether a factual dispute requires adjudication, substantial deference must be given to the ALJ's judgment. ... [The Commissioner's] review of rulings that are based on an ALJ's assessment of whether a factual dispute is substantive and significant will therefore be limited to whether or not the ALJ has properly applied [the substantive and significant] standard; [the Commissioner] will not independently judge whether the dispute is substantive and significant unless the ALJ has not applied the standard." (Interim Decision of the Commissioner, August 20, 1992).

A review of the Rulings demonstrates that ALJ Buhrmaster did adequately review and weigh the offers of proof to reach his conclusion that the issues he set for adjudication were substantive and significant. Accordingly, the Rulings are upheld.

Although the Applicant has offered a revision to the draft permit terms in order to avoid any adjudication of the efficacy of the proposed tree planting plan, the proposal offers little change in the Applicant's obligation under the existing draft permit and does nothing to increase the likelihood of success of the original plantings. Since the sooner the plantings are established the sooner any visual impact will be mitigated, acceptance of the offer would not resolve the issue.

Similarly, the groundwater issue would not be resolved by a permit condition proposed by the Applicant requiring it to provide a water supply to a landowner upon a demonstration that the mining operation had adversely impacted that landowner's well or spring. This condition does nothing to reduce the chance of groundwater impacts and provides no greater protection to landowners than the remedies they already have under existing civil law.

The Applicant also appeals the ALJ's decision to require a site visit in order to gather needed information concerning the presence of archeological resources at the proposed mining site. This is not a ruling on whether any issue needs to be adjudicated and is therefore not appealable pursuant to 6 NYCRR 624.6(d).

Intervenors' Appeals

The Applicant and the Department Staff object to the method and timing of the filing of the Intervenors' appeal. Regardless of how the copies of the appeal were sent to the Applicant and Staff, the appeal was filed with the Commissioner's Office according to the instructions in ALJ Buhrmaster's Rulings. Even if the accounts of the delivery to the Applicant and Staff are correct, this relatively minor transgression would have at most warranted an extension of time for answering.

Substantively, the Intervenors' appeals attempt to raise a series of issues concerning both questions of law and fact. As stated above, substantial deference will be given to the ALJ on determining whether factual disputes meet the standard for adjudication. The discussion below therefore focuses on the legal issues which the Intervenors seek to raise. The organization of the discussion below groups the Intervenors' appeals together in related categories for purposes of analysis and is keyed to Intervenors' numbering of issues in its appeal.

Status of Draft SEIS and SEQR Issues (Issues I and III).

The Intervenors challenge the scope and accuracy of the draft supplemental environmental impact statement ("DSEIS"). In terms of scope, the document does not stand alone but rather supplements the existing draft environmental impact statement ("DEIS"). It need only address the issues that were remanded in my Interim Decision of January 27, 1992.

Additionally, while the DSEIS must address those issues in a substantive and meaningful way, the fact that some of the information and analyses may need to be changed or modified does not make the document inadequate as a draft. If total accuracy were a requirement, there would be no need to have it submitted in draft form and subject it to public review. The standard for judging the acceptability of a DEIS or a DSEIS is whether it is satisfactory with respect to its scope, content and adequacy for purposes of commencing public review (6 NYCRR 617.8(b)(1)). The ALJ's November 17 ruling implied that this threshold standard was met when he required concerns related to the accuracy of the DSEIS be presented as proposed hearing issues without first requiring further supplementation of the document.

The technique of requiring additional information has been used where an intervenor has made a sufficient showing concerning a weakness or gap in an applicant's prima facie case. ALJs have been encouraged to consider requiring the applicant to provide missing information as an alternative to requiring the adjudication of an issue if such an approach will bring greater efficiency to the hearing process (see e.g., In the Matter of Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989). In this case, the ALJ was justified in not employing this approach because the Intervenors' offer of proof did not demonstrate that the DSEIS was inadequate on its face, as was the case with the original DEIS.

Historic and Archeological Resources (Issues V, IX and XII)

As a preliminary matter, the Intervenors express concern over a change in position by the Office of Parks, Recreation and Historic Preservation ("OPRHP"). The review process is a dynamic one and agencies need not be wed to any particular position particularly when new information, arguments or analyses are presented to it. There is no requirement that all parties be present at meetings that do not include communications with the Office of Hearings or myself. Meetings and discussions between agencies and the Applicant are conducted in the normal course of business and the failure to invite the Intervenors to such meetings provides no basis for relief.

Moreover, the motivation behind a change in position is not the concern of this hearing process. What is important is that the basis for the agency's position is supportable and that the Intervenors have an opportunity to contest that position with contrary evidence and argument. This issues conference provided such an opportunity.

With respect to the factual issues that the Intervenors seek to raise, the Rulings should be upheld as the ALJ has properly applied the substantive and significant standard.

Visual Impacts (Issues V, VI, VII and VIII)

The Intervenors ask that the analysis prepared by the Applicant's consultant Saratoga Associates not be considered because of an alleged prior commitment of that consultant to the Intervenors. This contract dispute is irrelevant to this proceeding. All of the work of Saratoga Associates is appropriately considered. Further, as discussed above, the motivation behind any change in position by OPRHP will not be subject to adjudication.

As articulated in the reasoning of the ALJ, the only issue regarding visual impacts that was demonstrated to be substantive and significant is the efficacy of the proposed planting plan. There is nothing in the Rulings that requires the Intervenors to present their own planting plan. It is the Applicant that has both the burden of proof and the burden of going forward on this issue. The Intervenors, at their option, may limit their participation to cross-examining the Applicant's witnesses and to arguing that the case the Applicant presents is insufficient to show the efficacy of the plan. They need not present an alternative plan of their own although their case might be more convincing if they do so.

Impacts on Wildlife (Issues II, X, XI and XII)

The Intervenors argue the November 1, 1992 submittal of Roy Slack on behalf of the Applicant was an improper reply and that the Rulings should not have taken its substance into account. The permit hearing regulations do not prescribe any particular number of replies and responses that are allowable following issues conference submittals. That determination is left to the discretion of the ALJ who should take into account the search for accurate information and the need to maintain a process that is fair to all parties. However, it is certainly not unusual for the ALJ to permit the Applicant to reply to the offer of proof raised at an issues conference.

In this instance, ALJ Buhrmaster made a sensible decision in allowing this submittal as part of the administrative record since the earlier submittals by the Applicant reflect incorrect information about the location of the heron rookeries. The correct information was later provided by the Department Staff.

The Rulings properly applied the substantive and significant standard to the proposed issues relating to impacts on the heron rookeries and impacts to threatened bird species and therefore should be upheld. Contrary to the Intervenors' assertions, I note that the portion of the Rulings which addresses the potential impact on the heron rookeries was not based on any "disturbance free zone" recommended by the U.S. Fish and Wildlife Service. Rather, it was based on the site specific analysis of blasting impacts provided by Mr. Slack in his letter dated November 1, 1992 The Ruling was also based on the Intervenors' failure to show a connection between the proposed blasting and sound and vibration impacts at the rookery locations.

The Intervenors also seek to raise a new issue related to the presence of a protected plant species at the site. Even if the Intervenors' failure to raise this issue before the ALJ was overlooked, the offer of proof that is now submitted on appeal is inadequate to raise an issue for adjudication. The offer of proof does not demonstrate that there is any potential that the unidentified species could be affected by the proposed project. In light of the March 9, 1993 letter from the Natural Heritage Program submitted by the Staff, there is no basis to require any further inquiry.

Failure to Adequately Describe the Project (Issue IV)

The Intervenors object to the absence of a single document which describes all aspects of the proposed project.

A review of the record leads me to conclude that the proposed project is adequately documented. The only changes to the project not reflected in the DEIS are those that are proposed as mitigating conditions that are documented in the draft permit. The final environmental impact statement ("FEIS") will incorporate any modifications to the project, if and when it is approved. Since there is no certainty about what the final conditions might be, it would be inefficient to require any updating of this information until an FEIS is prepared.

Failure to Address Cumulative Impacts (Issue XVII)

The Intervenors argue that the project review has been illegally segmented and that potential cumulative impacts have not been adequately assessed. They also argue that there has not been an adequate analysis of project alternatives.

To the extent that these matters were raised at the reconvened issues conference, they had already been adequately addressed in the ALJ's prior rulings or in my January 27, 1992 Interim Decision. Intervenors presented nothing additional and I find no basis to modify the ALJ's prior rulings or my prior Interim Decision.

Other Potential Impacts (Issues XIV, XV and XVI)

The offers of proof regarding all other potential impacts raised in the Intervenors' appeal concern only factual disputes. The ALJ found that the Intervenors' offer of proof was inadequate to raise a substantive and significant issue. As my review shows that the ALJ did properly apply the substantive and significant standard, the Rulings are upheld.

Summary

In all respects the Rulings are sustained. This proceeding is remanded to ALJ Buhrmaster for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Second Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 15th day of March, 1993.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER
______________/s/____________

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