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Peckham Materials Corporation - Ruling 2, April 5, 1993

Ruling 2, April 5, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Service List
Edward Buhrmaster, Administrative Law Judge

Application of Peckham Materials Corp.

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

April 5, 1993

This confirms our conference call of April 2, 1993. The call was prompted by the Applicant's motion to preclude the intervenors from raising any allegations or presenting any testimony regarding the inaccuracy or incompleteness of the Applicant's water users survey.

This motion is denied, although I acknowledge there has been consistent non-compliance with my rulings. Intervenor Save Easton Environment (SEE) was ordered twice, first in my issues rulings and again in a memorandum dated March 17, 1993, to provide specific information necessary for the Applicant to complete its survey of well and spring users. SEE did not comply with this request and Ms. Nichols, on behalf of all intervenors, was given one more chance to furnish the information. Based on Ms. Stack's affirmation, to the extent she was given information not previously provided, it was not in the form I requested.

The Applicant's motion to preclude is denied because, under the circumstances, it is too harsh a remedy. On the other hand, I am concerned that SEE may be acting in bad faith, asserting a hearing issue and then failing to meet directives meant to ensure its timely adjudication. SEE has ignored set deadlines, letting them run without explanation and without first seeking their extension, if it felt they could not be met. The intervenors are hereby warned that while I am denying the Applicant's motion, any further acts serving to delay this hearing unnecessarily will result in preclusion of issues or denial of party status.

When I wrote my issues ruling, I said the water users survey, as submitted by the Applicant, was not likely fully complete and accurate. I said that completing the survey would be the Applicant's responsibility, but that it would require the intervenors' cooperation. That cooperation has not been apparent and has frustrated the Applicant's attempts to meet my deadline for its pre-filed testimony.

During our call the Applicant said it was attempting correction of the survey to comply with my previous rulings, but not because it was essential to its case that mining and blasting will have no off-site groundwater impacts. Apparently that case is dependent solely upon the level and type of activities contemplated and the terrain in which those activities will occur.

The Applicant's case is apparently not affected by the proximity of any particular well or spring, or by the intervenors' comments on the existing survey, which Ms. Stack writes were examined by Peckham's hydrogeologists and reaffirmed their conclusions of no harmful impact. Furthermore, the Applicant apparently does not contest the survey corrections, as provided last fall in the intervenors' submission.

Under the circumstances, there is no need for the Applicant, as part of its case, to correct the survey it previously provided. Instead, as part of their case, the intervenors shall show how, if at all, the project will affect any well or spring identified either in the existing survey (which is part of the SEIS) or in the comments of the following individuals, which were stated or referenced in pages 19 through 22 of the intervenors' submission on the SEIS, dated October 15, 1992:

  • Richard Brownell. A flowing spring at an elevation of 310 MSL which he claims to be about 100 feet west of his residence. (See letter of Brownell, October 8, 1992.)
  • Keith Stewart. A flowing spring at an elevation of about 340 feet MSL. (See letter of Brownell, October 8, 1992, and letter of Keith and Sheri Stewart, October 10, 1992.)
  • Herbert Liddell. A spring on Schuyler Mountain, serving cattle. (See letter of Liddell, dated September 30, 1992.)
  • Clifford and Janet Stewart. One artesian well in unconsolidated sand; plus springs for emergency drought use, one about 500 feet north of the Peckham property, and another on a woodlot just south of the Peckham property. (See Stewarts' letter, dated October 7, 1992.)
  • Louise Ward. A well which she reports was dug and not drilled (omitting a previously reported spring, which Ms. Ward now states does not exist.) (See letter of Ward, September 10, 1992.)
  • Marguerite Hill. A 227-foot deep well drilled in unconsolidated materials. (See letter of Hill, dated September 10, 1992.)

The intervenors are hereby precluded from asserting any survey inaccuracy other than those stated explicitly in these comments.

In my prior rulings I had assigned the Applicant an April 6 deadline for pre-filing its direct testimony. I hereby extend that deadline, at the Applicant's request. The Applicant shall ensure receipt by me, Ms. Nichols, and Mr. Brewer of its pre-filed direct testimony, encompassing both hearing issues, on or before April 9, 1993. The DEC Staff and the intervenors shall ensure receipt by me and the other parties of their pre-filed direct testimony on or before April 15, 1993. For the Applicant, copies shall be furnished to both Ms. Stack and Mr. Gilberti. With the issuance of this memo, Mr. Adang shall be dropped from the service list, and I shall consider Ms. Nichols to represent all three intervenors (SEE, BACC, and Mr. Houser).

The dates of April 21-23 remain reserved for this hearing. In addition, the Applicant shall make arrangements for the hearing's continuation on April 26 and May 4 and 5, 1993. Reversing my previous directive, the tree planting issue shall be heard first, followed by hydrogeology. The parties indicate that on the tree planting issue, eight witnesses are likely (four for the Applicant, two for the DEC Staff, and two for the intervenors), while on the hydrogeology issue, seven witnesses are likely (four the Applicant, one for DEC Staff, and two for the intervenors). The parties are cautioned not to present witnesses who will be redundant of each other, as I can limit testimony so as not to extend the hearing longer than is necessary.

With adequate notice, arrangements can be made to adjust our schedule to meet witness requirements. Otherwise, all witnesses shall be present or on call, so that hearing time is not wasted.

Thank you for your attention to this matter.

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