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Peckham Materials Corporation - Fourth Interim Decision, July 30, 1993

Fourth Interim Decision, July 30, 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

FOURTH INTERIM DECISION

July 30, 1993

FOURTH INTERIM DECISION

This Interim Decision is in response to appeals filed to the June 22, 1993 Supplemental Issues Ruling (the "Ruling") of Administrative Law Judge ("ALJ") Edward Buhrmaster in the captioned matter. In the Ruling, ALJ Buhrmaster determined that no issue exists concerning any historic or archaeological resources at the proposed project site. Appeals were filed by Save Easton Environment ("SEE"), the Battenkill Association of Concerned Citizens ("BACC") and George Houser (collectively, the "Intervenors").

The potential issue at the time ALJ Buhrmaster made his ruling related to the alleged existence of Revolutionary War era cellar holes and a Native American "fire mound" on the proposed project site. The cellar holes were acknowledged by the Intervenors to be outside the boundaries of the proposed project site and were thus removed from consideration as an issue which might require adjudication. The letter which ALJ Buhrmaster received from the Office of Parks, Recreation and Historic Preservation ("OPRHP") discounted the presence of any fire mound within the project area. Intervenors have not challenged that conclusion.

Intervenors challenge the limitation on the potential historic or archeological issues that was imposed by ALJ Buhrmaster's February 12, 1993 ruling and, in addition, state that an issue related to the historic significance of certain ceramics that were found during the Applicant's site investigation needs to be adjudicated. In its June 10, 1993 letter to the ALJ, OPRHP indicated that further archeological excavations might be warranted only if the ceramic fragments predated the nineteenth century.

The limitation on potential historic and archeological issues was already addressed in my Second Interim Decision dated March 15, 1993. There is no basis to revisit that determination.

There is also no basis to adjudicate the historic significance of any ceramic fragments that were found. Absent unusual circumstances, it is improper to raise issues for the first time on appeal. Although there was an opportunity to raise the issue to the ALJ after the Applicant's site investigation, the Intervenors failed to do so. The submittal that was made to OPRHP was wholly outside of the record of this proceeding and was not made available in a timely manner to the other parties or to the ALJ. As noted in my Third Interim Decision and elsewhere by ALJ Buhrmaster, the frequent failure of the Intervenors to comply with the procedural rules of the hearing process cannot be condoned.

Moreover, even if their offer of proof were considered the Intervenors have failed to show that there is any likelihood that the ceramics have any historic significance or that General Condition No. 13 would not adequately mitigate any impact to cultural resources. No issue is raised for adjudication.

In all respects ALJ Buhrmaster's Rulings are sustained. Pursuant to the Ruling, this Interim Decision serves to close the hearing record in this matter. ALJ Buhrmaster is directed to prepare a hearing report which addresses those issues that were adjudicated and submit it to me.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Fourth 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 30th day of July, 1993.

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

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