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Peckham Materials Corporation - Third Interim Decision, Arpil 26, 1993

Third Interim Decision, April 26, 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

THIRD INTERIM DECISION

April 26, 1993

THIRD INTERIM DECISION

This Interim Decision is in relation to an appeal filed by Save Easton Environment ("SEE") to the April 5, 1993 ruling of Administrative Law Judge ("ALJ") Edward Buhrmaster in the captioned matter. Due to the potential for the prejudice if the matter is incorrectly decided at this time, I have determined to exercise my discretion to entertain the appeal on an interlocutory basis.

In previous rulings, the ALJ had directed SEE and other intervening parties to cooperate with the Applicant in the resurvey of groundwater resources and to provide whatever information they had to the Applicant. Based on the intervenor's failure to comply with this directive, the ALJ relieved the Peckham Materials, Corp. (the "Applicant") of its obligation to correct the survey and instead permitted the Applicant to go forward to prove its case by showing that there will be no off-site impacts to groundwater regardless of well locations and characteristics. He limited the intervenors' proof to the impacts on the wells that were already identified in the existing survey or in their comments on the supplemental environmental impact statement.

Upon review of the matter, I am satisfied with the outcome contained in the ALJ's ruling. Intervenors who participate in Department proceedings assume the responsibilities as well as the rights associated with party status. It is apparent that SEE has failed to comply with the ALJ's directives after several opportunities to do so. All of the reasons offered for these failures relate to matters that were well within its control.

I am also satisfied that the ALJ's ruling adequately balances the equities of the parties in this situation. If, as contended by the Applicant, the absence of offsite impacts of the proposed project to groundwater can be established, the failure to produce an accurate well survey will not impair the adequacy of the record for decisionmaking.

ALJ Buhrmaster's April 5 ruling is sustained. This matter is remanded to him for further proceedings.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this 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 26th day of April, 1993.

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

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