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Peckham Materials Corporation - Supplemental Ruling, June 22, 1993

Supplemental Ruling, June 22, 1993

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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)

SUPPLEMENTAL ISSUES RULING

Introduction

This is a supplement to my issues ruling of February 12, 1993. In that ruling I said an issue might exist as to certain features which were alleged to be at the project site and known to members of the surrounding community. These features were believed to consist of a Native American "fire mound" (or "perpetual fire") as well as cellar holes (or building foundations) from the Revolutionary War era.

In my ruling (at page 11) I said that if an issue exists, it would be only with regard to the fire mound and the cellar holes, their significance, how they would be affected by the project, and what, if anything, would be required to mitigate or avoid project impacts, either under the State Environmental Quality Review Act (to the extent the features had historic significance) or the State Historic Preservation Act of 1980 (to the extent the state Office of Parks, Recreation and Historic Preservation might find them deserving of protection).

At the time of my issues ruling, I could not conclude whether the fire mound or cellar holes existed and, if they did, whether they did so on land that would be disturbed by the mining operation. For that reason, I ordered that the Applicant make arrangements for a site visit, which I would conduct with the parties' representatives.

That site visit was made on April 28, 1993. Apart from myself, those attending were Joseph Prall (of DEC's Region 5 Staff); Rosemary Stack, Paul Griggs, and Peter Simoneau (for the Applicant); and Rosemary Nichols, Clifford Stewart, and Louis Marchaland (for the intervenors' coalition of Save Easton Environment, Battenkill Association of Concerned Citizens, and George Houser). Also present were Stephen Oberon (the Applicant's archeological consultant) and Edward Curtin and Susan Bender (intervenors' archeological consultants).

The visit consisted of our walking through a field in the site's central valley, which lies between Schuyler Mountain (to the east) and a hill on the western edge of the Peckham property. Within that valley, on the face leading up to Schuyler Mountain, Mr. Stewart, a long-time area resident, pointed out what he thought to be the remnants of the fire mound referred to in my rulings. This feature was an area of field stones, some laid one atop another, in an area of dense brush beneath a butternut tree. The archaeologists agreed that the arrangement of stones suggested some man-made construction, as opposed to a naturally occurring feature. But none of them could confirm whether the feature was a fire mound, or whether it was made by Native Americans or European settlers. The intervenors' archeological consultants said that without the feature being sectioned and excavated, the possibility of its being a prehistoric (in other words, Native American) fire mound could not be ruled out.

The site visit was made without a stenographer, it having been agreed that after it was done, I would reconvene the issues conference, make my findings, and hear the parties' arguments as to what, if any, further action was needed. The issues conference resumed on May 5, 1993, at the Easton Town Hall. I read my findings onto the record and then heard statements from the parties.

The intervenors said that after the site visit, they had reported the alleged fire mound to the State Office of Parks, Recreation and Historic Preservation (OPRHP) as a resource deserving its protection. The Applicant said that its consultant, Mr. Oberon, had sectioned and excavated the feature on May 4, 1993. An oral report of this process was heard, and pictures were shown depicting each stage of the excavation, as well as objects which were found at, near and underneath the studied feature.

The Applicant said that based on the work it had done, there was no indication of sustained or frequent burning at the alleged fire mound, and no other indication of Native American cultural activity, including the making of stone tools. The Applicant said the feature was not a fire mound, but merely a grouping of rocks and cobbles, underneath which were scattered brick and ceramic fragments.

To buttress its case, the Applicant presented signed statements from two sisters, Lydia Riche and Ella Waite, who had lived on the project site in the early 1900's, and whose family farmed the valley area where the alleged fire mound was located.

Ms. Riche, who is 80 years old, was taken to the site on May 5, 1993, by Mr. Simoneau, a Peckham representative. She wrote that the so-called fire mound was actually a rock pile made when the area was cleared for farming, and did not predate her childhood. Ms. Waite seemed to agree, writing that any rock pile in the fields of the Peckham property was not an Indian fire mound, but was either made when she and her sister cleared the field for farming, or after her family sold the property in the 1950's.

The Applicant said that, upon examination, it found the so-called fire mound not to have historic or archeological significance. Still, to lay the matter to rest, it agreed to make a written report not only to me, but to the OPRHP, with whom the intervenors had already filed. DEC Counsel Steven Brewer said OPRHP had said that within days of its receipt of the Applicant's report, OPRHP could determine whether the fire mound was, as claimed by the intervenors, eligible for listing in the State Register as an historic, architectural, archeological or cultural property [PRHPL Section 14.09(1)].

In a memorandum to the parties, dated May 7, 1993, I said OPRHP's assessment as to whether the alleged fire mound was eligible for listing (or otherwise a significant on-site resource) would be helpful to determining whether an issue in fact existed and, if so, how best to address it. Therefore, I said I would hold the record open, at least for a short time, to await its determination.

In the meantime, I directed the Applicant to submit directly to OPRHP its investigation report, with photographs, as soon as possible. This was done on May 24, 1993, with copies to me and the other hearing participants. On June 15, 1993, I received a letter, dated June 10, 1993, from Bruce Fullem, assistant director of OPRHP's historic preservation field services bureau.

Mr. Fullem wrote that after review of the Applicant's report, which was prepared by Mr. Oberon, as well as a response submitted by the intervenors, "it is the opinion of the OPRHP that there is no substantive evidence of any kind that would indicate the presence of a fire mound or prehistoric fire mound within the project area."

The conference record closed with my receipt of Mr. Fullem's letter. The rulings that follow address whether issues have been raised or further action is required as to intervenors' concerns relating to on-site historic and archeological resources.

Fire Mound

The alleged fire mound was located in the central valley of the project site, in an area where mined materials would be stored and processed. At the least, this area would be graded, according to the Applicant's mining plan. The intervenors had claimed that the alleged fire mound, as seen on the site visit, was a cultural resource deserving of listing in the state's register of historic properties. Their archaeologists made a report identifying the alleged resource to OPRHP, although that agency, by its letter of June 10, 1993, did not make any finding of eligibility. To the contrary, OPRHP has concluded that the resource does not exist (i.e., that there is no fire mound within the project site).

In my memorandum of May 7, 1993, I directed the issues conference participants to send me copies of all submissions they made to OPRHP. The intervenors did not do this. They have never provided a copy of the report their archaeologists made to OPRHP, nor have they provided what Mr. Fullem describes in his letter as "the intervenor's response" to the report of Mr. Oberon, the Applicant's archaeologist.

The intervenors' failure to provide this information leaves it outside the conference record, unavailable for consideration. This leaves as their offer of proof the statements of Clifford Stewart, made during the site visit, and Peter Sutherland, who submitted a letter, dated November 30, 1990, as part of the legislative hearing.

Mr. Stewart farmed the site's central valley during the early 1960's. He said that when he had plowed the earth near the feature, he had seen black streaks which he thought to be charcoal or ash. He also said that prior site owners, the Sutherlands, had told him the feature was a fire mound. (In his letter, Peter Sutherland describes it as a "permanent camp fire" made by Indians who traveled across the property.)

Intervenors' claims that the feature is a fire mound or some other Native American resource have been investigated and are effectively rebutted by Mr. Oberon's report. In the controlled excavation of the feature, no Native American artifacts were found, nor was there found any evidence of sustained or frequent burning (for instance, no findings of ash, charcoal, or fire-cracked rock). Mr. Oberon's report was convincing to OPRHP, which concluded, despite the intervenors' presentation, that "there is no substantive evidence of any kind" that would indicate a prehistoric fire mound within the project area.

As to the alleged fire mound feature, DEC has no duty of further inquiry, since the feature has not been deemed eligible for listing in the state register (under the State Historic Preservation Act) and cannot be found, upon review, to be an object of historic significance, which would require consideration under SEQRA.

Historic Ceramics

In his excavation of the alleged fire mound, the Applicant's archaeologist, Mr. Oberon, encountered brick and ceramic fragments underneath the ground surface. The ceramics were described as two fragments of unglazed redware, seven fragments of Albany Slip redware, and eight fragments of cream-colored whiteware. Pictures of the fragments were taken and are attached to the Oberon report. The report describes the fragments as post-Civil War ceramics, perhaps the remains of four whole ceramic pieces.

The Oberon report was filed with OPRHP on May 24, 1993. At some point between then and June 10, when OPRHP issued its letter, the intervenors apparently filed a response. (This response was not filed with me, although the parties had been told to send me copies of all submissions to OPRHP.)

In its letter of June 10, OPRHP writes that the intervenors' response has raised a number of outstanding issues. Most important is the identification of the ceramics, which OPRHP describes as "in doubt" and requiring clarification before that agency can fully assess the sufficiency of the Oberon investigation and the potential significance of what was found.

OPRHP writes that if the ceramics are 19th or 20th century in origin, its opinion would be that the site does not meet criteria for listing in the state or national registers of historic places, and that further archeological excavations would not be warranted. On the other hand, if the ceramics are of greater ancestry, OPRHP writes that it would need to consider this before commenting either on the sufficiency of the work performed at the site, or on the site's significance. OPRHP suggests that an evaluation of the ceramic fragments by an archaeologist with acknowledged expertise on these materials would clarify the issue. (Assuming the fragments predate the 19th century, it finds that additional site testing might be warranted.)

The concern for historic ceramics was not raised at the issues conference and apparently has surfaced since in a submission the intervenors made to the OPRHP. I have not received this submission or any other correspondence the intervenors may have filed with that agency. The sole information I have is the report of Mr. Oberon, a state-qualified archaeologist.

Assuming the ceramics postdate the Civil War, as claimed by Mr. Oberon, no further inquiry would be sought by OPRHP, and the site would not be found eligible for a state register listing. As I did not receive the intervenors' filing, it is unknown what doubt now exists regarding the ceramics' identification. It is also unknown why the site may meet any criteria for listing in the state register, which would require DEC to request and await OPRHP's eligibility determination [see 9 NYCRR 428.4(c)].

In the absence of a factual offer running contrary to the Oberon report, I accept its conclusions for the purpose of this ruling. No issue has been raised concerning the dating of the ceramics. Also, there has been no determination that the alleged fire mound (or, for that matter, any other site feature) is eligible for listing in the state register. For these reasons, no further inquiry is needed.

Cellar Holes

Early in this hearing the intervenors claimed that the project site contained cellar holes (or building foundations) dating back to the Revolutionary War era. They said that a local resident, Louis Marchaland, could take us to them.

Just prior to the site visit, Mr. Marchaland said the cellar holes were actually east of the Peckham property. There was no evidence or claim to the contrary. This removed the cellar holes as an issue, and no further inquiry was made.

Rock Walls

When the issues conference reconvened, the intervenors claimed there were remains of a rock wall on the site's western hill. They said this wall had not been inventoried as part of the stage I cultural resources survey which was performed by Mr. Oberon. The intervenors said they were not asserting that the wall should be listed as a historic resource, but merely that it should be identified for the sake of subsequent historical scholarship, given that the western hill would be mined, according to the Applicant's project proposal.

The intervenors claimed that the wall had been seen from off-site by their archeological consultants during recent field work they had conducted. The sighting was apparently made since the initial issues conference, which was why the concern was not raised at that time. Since the sighting was made from off-site, there was no reason it could not have been made earlier, and this matter addressed in a more timely fashion. At any rate, the wall was not ignored as part of the Oberon survey, which is part of the supplemental draft environmental impact statement (SDEIS).

On page 11 of that survey, dated January, 1991, Mr. Oberon writes about a stone wall which runs from the summit of the unnamed western hill to its base. Based on on-site testing, Mr. Oberon determined that the wall was built from limestone retrieved from just below the ground surface, and that it was made by civilian labor (and not military labor) at some point after the Revolutionary War.

The intervenors did not show what further inquiry is needed. They offered no basis to question Mr. Oberon's conclusions. As a result, no issue is raised, and no further study is ordered.

Adequacy of Site Surveillance

The intervenors have argued repeatedly that the site surveillance performed by Mr. Oberon is inadequate and that another, more intensive survey is required. When the issues conference reconvened, they asked that I reconsider my prior decision (at page 12 of the February 12, 1993 issues ruling) not to require another study in addition to the one which is part of the SDEIS. That decision was made after I dismissed as speculative intervenors' assertions as to possible on-site resources, which were based on alleged off-site findings of arrowheads and other Native American artifacts.

The intervenors now claim I should reverse my prior decision based on findings they allege were made in an area of the site which was subject to recent disturbance as part of a firewood operation. The intervenors say that after this operation, various people walking the site found and retrieved arrowheads, worked pieces of stone, and "chert" (from which the worked pieces of stone are produced) in an area Mr. Oberon had previously described as lacking any archeological resources. This area was not precisely identified and the materials which were alleged to have been found were not produced. More important, the people who walked the site were not named, on the ground that doing so might lead to charges of trespass.

The intervenors' claims, as offered at the conference, could not be challenged or verified, especially as it could not be determined who made the alleged findings. The refusal to offer names cast doubt upon the assertions, especially since the Applicant showed no desire to prosecute. Even if arrowheads were found on the project site, this would make it no different from neighboring sites where similar findings have been reported. It would not suggest that there are other, significant cultural resources that have been overlooked.

As noted in my prior issues ruling (at page 10), the Peckham site was studied in late 1990 as part of a cultural resources survey which was requested and later accepted by OPRHP. The survey report, prepared by Mr. Oberon, said "no evidence of Native or European-American cultural resources was encountered for subareas of the Peckham property considered most likely to have seen occupation by earlier inhabitants of the area." Hence, the study concluded that mining and processing activities would have no impact on extant cultural remains, and that no further investigation was recommended.

OPRHP concurred with that recommendation and so did DEC Staff. The intervenors' claims, made in a form where they cannot be substantiated, do not raise a hearing issue or require that another site survey be performed.

Summary Ruling

No issue exists concerning any historic or archeological resources which are alleged to exist at the Peckham project site. No further action or site surveillance is required as to this alleged hearing issue.

Appeals

Pursuant to 6 NYCRR 624.6(d), the ruling of the ALJ setting forth the issues for the hearing may, within three days of the ruling, be appealed in writing to the Commissioner. Other parties may submit briefs in support of or in opposition to the ALJ's ruling. Notice of the appeal and a copy of all briefs submitted in support thereof shall be given to the ALJ and all parties to the hearing.

For the parties' convenience, I am granting a short extension of the appeal deadline. Any appeals must be received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-5500) no later than June 29, 1993. Any letters or briefs in support of these rulings must be received by July 6, 1993. The parties shall ensure receipt of all papers by me and the others on the service list at the same time transmission is made to the Commissioner. For the Applicant, transmission shall be to both William Gilberti and Rosemary Stack at their separate offices.

Order of Disposition

As the issues previously certified have already been adjudicated, and I am finding no other hearing issues, no further hearing sessions are scheduled. The hearing record shall officially close with the deadline for appeals unless appeals are filed, in which case the record will close when the appeals are decided (assuming these rulings are upheld) or when all issues are completely adjudicated (assuming the rulings are reversed and a hearing issue is found, or some other action required). Pursuant to 6 NYCRR 624.15(a), the Commissioner's decision as to whether (and, if so, in what form) to issue permits shall be made within 60 days after the official closing of the hearing record.

Edward Buhrmaster
Administrative Law Judge

Albany, New York
June 22, 1993

TO: Service List

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