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Pine Hill Concrete Mix Corporation - Ruling and Order of Disposition, February 17, 1993

Ruling and Order of Disposition, February 17, 1993

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Application of Pine Hill Concrete Mix Corporation for a Mined Land Reclamation Permit
pursuant to Environmental Conservation Law Article 23 Title 27 (Mined Land Reclamation)
and Title 6 of the Official Compilation of Codes Rules and Regulations of
the State of New York, 6 NYCRR Parts 420 et seq. (Mined Land Reclamation)

RULINGS and ORDER of DISPOSITION

File No. 9-1456-00043/00001-1

PROCEEDINGS

Pine Hill Concrete Mix Corporation, 2255 Bailey Avenue, Buffalo, NY 14211 (the "Applicant") seeks a Mined Land Reclamation Permit from the Department of Environmental Conservation (the "Department" or "DEC"). The Applicant proposes to develop a bank run gravel mine to affect 17 acres of a 52 acre parcel of land. There will be no material processing on Site, or excavation below the water table. Access to the Site will be from Crittenden Road and mining is expected to progress at a rate of 3 to 4 acres per year. The estimated life of the mine is 5 years and the reclamation objective is agriculture. The Proposed Project will be located approximately 125 feet north of Siehl Road and 475 feet east of Crittenden Road, Town of Newstead, Erie County, NY. (MLR (Mine) File No. 9043-30-0564).

Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 23 Title 27 (Mined Land Reclamation); and Article 8 (Environmental Quality Review). Also, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Parts 420 et seq. (Mined Land Reclamation); and Part 617 (SEQR).

DEC Region 9 Staff ("Staff") issued a Notice of Complete Application ("NOCA") for the Proposed Project which was published in the August 12, 1992 Environmental Notice Bulletin (ENB) (August 26, 1992 ENB for the SEQR Negative Declaration; and the September 2, 1992 ENB for the Corrected NOCA). The NOCA was also published in the Akron Bugle on August 13, 1992; the Buffalo News on August 12, 1992; and the Clarence Bee on August 12, 1992.

On November 25, 1992 the DEC Office of Hearings received from Staff copies of the application documents and the filed written comments for the purpose of scheduling a public hearing. As of the December 9, 1992 issue date for the Notice of Public Hearing (the "Notice"), Staff had determined that the Proposed Project, if carried out in accordance with the conditions of Staff's proposed Draft Permit (prepared, on file and available for public review), would meet all the applicable statutory and regulatory requirements, and, therefore, Staff would issue the requested permit. A copy of Staff's original Draft Permit is attached hereto as Appendix A.

The Notice was published in the ENB, the Buffalo News, and the Clarence Bee on December 16, 1992, and in the Akron Bugle on December 17, 1992. Notice was also directly mailed on December 11, 1992 to the clerk or chief executive officer of the Town of Newstead and Erie County, as well as to other persons deemed interested in this proceeding.

The Draft Permit was amended December 23, 1992 to add a special condition ("Draft Permit #2" herein, not reproduced).

The public hearing commenced before Administrative Law Judge Frank Montecalvo (the "ALJ") on Tuesday, January 19, 1993, at the Town of Newstead Town Hall, Church and John St., Akron, NY 14001, with a public statement session which began at 7:00 PM. Members of the general public were invited to make unsworn statements on the Proposed Project for the Record at that session only. In addition, the ALJ received written statements, as advertised in the Notice, through January 19, 1993, including some presented on the night of the hearing. These oral and written statements are summarized in the discussion under Ruling IV below.

DEC Staff was represented at all stages of the hearing by Maureen Brady, Esq., Assistant Regional Attorney.

The Applicant was represented at all stages of the hearing by Devorsetz Stinziano Gilberti & Smith, P.C. (Adam J. Schultz, Esq., of counsel).

Requests for Party Status to participate in an adjudicatory phase of the hearing (if found to be necessary) were due to be filed with the ALJ on or before January 11, 1993. Two requests were received -- from the Town of Newstead, and the Town of Pembroke.

An Issues Conference was convened at 10:00 AM January 20, 1993, at the same location as the public statement session, to determine Party Status (and manner of participation) for those persons who had requested it, and to define which Issues required adjudication, if any. DEC Staff and the Applicant appeared through their aforementioned representatives. The Town of Newstead appeared by Donald Holmes, Town Supervisor, accompanied by Nathan Neill, Esq., Town Attorney. The Town of Pembroke appeared through John Wolf, Town Supervisor.

At the Issues Conference, Department Staff presented further revision of its Draft Permit ("Draft Permit #3" herein, not reproduced), made in response to Applicant's objections. Staff and Applicant had agreed on all the terms of Draft Permit #3 prior to the Issues Conference. The Towns of Newstead and Pembroke were not aware of Draft Permit #3's existence until the Issues Conference. In addition, the Town of Pembroke indicated it was unaware of Draft Permit #2. The Town of Newstead objected to Staff having made changes to the Draft Permit without being given an opportunity for input. In this regard it is noted that the original draft permit contained several provisions inserted at the request of the Town of Newstead, pursuant to ECL 23-2711 (3)(a). It would appear that the Town of Newstead should have been provided with a written statement, pursuant to subsection (3)(b) of that statute, setting forth the reasons why Staff changed these provisions. Nevertheless, Staff, Applicant and both Towns were given the opportunity to discuss the contents of the Draft Permit, and essentially reached agreement in principle on further revision of its terms, or indicated no opposition to revisions agreed upon by others. It should be noted in this regard, however, that the Town of Pembroke's representative departed the Issues Conference before the discussion of two Special Conditions and the Town of Pembroke's filing for Party Status was completed.

Following the discussion of the contents of the Draft Permit, the Town of Newstead indicated that all of its concerns had been satisfied by the agreed-upon revisions. The Town of Pembroke's request for Party Status was then discussed.

The ALJ required that Staff put in writing the agreed-upon changes to the Draft Permit ("Draft Permit #4" herein), and circulate same to the Applicant and the two Towns for comment. Draft Permit #4 was to be filed by January 27, 1993, and comments thereon were to be made by February 3, 1993. Applicant was given until February 10, 1993 to file responses thereto if it desired.

Since changes had been made in the Draft Permit after this matter was noticed for public hearing, the ALJ requested to be advised by the parties and potential parties, by January 27, 1993, on whether or not additional proceedings were required to address the changes made to the Draft Permit after publication of the Notice.

The Issues Conference concluded on January 20, 1993.

Draft Permit #4 (copy of "Page 3 of 3" attached hereto as Appendix B), and memoranda from Staff and Applicant on the need for additional proceedings, were received on January 27, 1993. A copy of Draft Permit #4 was transmitted to the two Towns. Applicant's response to Draft Permit #4 was received on January 28, 1993. The Town of Newstead's written comment on Draft Permit #4 was received February 2, 1993. No comment on Draft Permit #4 was filed by the Town of Pembroke. No response from Applicant to the Town of Newstead's comment was received. The record was closed February 10, 1993.

The matter of whether or not an adjudicatory phase of this hearing is required (including matters of hearing issues and Party Status) is ready for determination.

RULINGS AND DISCUSSION

RULING I: There are no issues to resolve between DEC Staff and the Applicant.

There is nothing in dispute between Staff and Applicant since they have agreed to the terms of Draft Permit #4.

RULING II: There are no issues to resolve in the interest of the Town of Newstead, provided that the hours of operation from 7:00 AM through 5:00 PM Monday through Friday are specified in the permit in addition to the Saturday hours already specified in Draft Permit #4.

The Town of Newstead (the political subdivision where the mine is to be located) indicated that all of its concerns were satisfied by the revisions to the Draft Permit agreed upon at the Issues Conference. In its comment on Draft Permit #4, with reference to the condition specifying hours of operation for Saturday (which was agreed upon at the Issues Conference), the Town noted that no hours were specified for other days. The Town pointed out that correspondence from the Applicant (which has been deemed part of the application), the mining plan, and the Negative Declaration, specify varying hours of operation. The Town requested that all hours of operation be spelled out in the permit to eliminate confusion.

Applicant agreed to restrict its operation hours to 7:00 AM through 5:00 PM Monday through Saturday in correspondence dated July 13, 1992 (Exhibit 2b in the Record), and agreed at the Issues Conference to the further restriction on Saturday hours that is now specified in Draft Permit #4. Since there is a potential for confusion due to different operating hours being stated in different documents, the Town's request is found to be reasonable and necessary. A specification of the hours of operation for other weekdays that the Applicant has already agreed to shall be incorporated into the permit pursuant to ECL 23-2711(3)(a)(iv) and (b). This addition to the permit will not substantively alter the proposed project.

RULING III: There are no issues to resolve in the interest of the Town of Pembroke.

Except as noted below, the Town of Pembroke either agreed to or stated that it did not oppose the revisions to the Draft Permit which were agreed upon at the Issues Conference by Staff, Applicant and the Town of Newstead. The Town was not present for the completion of discussions on what appear as Special Conditions 2 (b) and 2 (c) in Draft Permit #4. Nevertheless, the Town has been provided with Draft Permit #4 which incorporates those as well as the other agreed upon revisions, and has voiced no opposition thereto. Therefore, there are no issues to be resolved in the interest of the Town of Pembroke with respect to the specific provisions of Draft Permit #4.

Because it was not present for the entire Issues Conference, it is unknown whether or not all of the Town's concerns are satisfied by the revisions represented by Draft Permit #4. Therefore, it is necessary to examine the Town's filing for Party Status to determine whether or not any of its concerns indicate the existence of an adjudicable issue.

The Town essentially contends that when DEC Staff issued its SEQR Negative Declaration for the Proposed Project, it ignored pertinent groundwater information contained in the U.S. Geological Survey's Water-Resources Investigations Report 86-4317 by Ward W. Staubitz and Todd S. Miller dated 1987 ("the Staubitz and Miller Report"). The Town requested that DEC Staff reverse itself and issue a Positive Declaration, which would require preparation of an Environmental Impact Statement. The Town enclosed a copy of the Staubitz and Miller Report.

Other than the text of the Staubitz and Miller Report itself, the filing did not indicate the nature of the evidence the Town intended to present at a hearing if permitted to do so. The Town's filing fails to explain why the Staubitz and Miller Report raises a concern over the Proposed Project except to state in conclusory fashion that "The absence of potable water would affect our residents taxable value of properties, health, safety and general welfare."

Department Staff was aware of the Staubitz and Miller Report, and indicated that it did not reveal to them any problem with the proposed project.

Staubitz and Miller reported on how water pumpage at limestone quarries (located in close proximity to the site of Applicant's Proposed Project), for the purpose of dewatering mine pits, lowered water levels 5 to 35 feet in wells within 3,000 feet of the quarries. More than 60 wells and several wetlands were reported to have gone dry during the 1982-85 period; and, during the summers and falls of the same period, water levels declined 30 to 50 feet at some locations.

The thrust of the Staubitz and Miller Report is that the quarries pumped millions of gallons of water per day to dewater their mine pits, and discharged this water to streams which carried the water away from the vicinity of the wells, resulting in dramatic declines in water levels in those wells.

The Town pointed out no proposal by the Applicant to pump millions of gallons of water per day from the proposed mine. The Applicant does not intend to mine beneath the water table in the deposits on the project site, thus pumpage for dewatering is neither needed nor proposed. Additionally, both Staff and Applicant point out that the mining will take place in the unconsolidated sediments above the Onondaga limestone, which contains the groundwater that was the subject of the Staubitz and Miller Report. Applicant noted that the aquifer in the Onondaga limestone underlying the site is confined, and that Staubitz and Miller reported that the potentiometric surface of that aquifer (i.e., the height to which water would rise in a well that is screened in that aquifer) at the project site would still be some 10 feet below the proposed level of mining. The only indication on record of any proposed pumping by the Applicant was an expressed need to pump a small amount of water (on the order of 500 gallons per day) for use in controlling dust. Draft Permit #4 limits even this pumping to use as a backup supply to water which will be trucked in from off-site sources and placed in on-site tanks.

Applicant's proposed project and the situation related in the Staubitz and Miller Report are so dissimilar that the Town's submission of that report is insufficient to raise an issue requiring adjudication.

Therefore, there are no issues which need to be adjudicated in the interest of the Town of Pembroke.

RULING IV: Consideration of the Public Comments reveals neither an issue requiring adjudication, nor a defect in the application's processing which needs to be remedied.

Written and/or oral comments were made for the record by 12 non-party persons or entities (including both Towns that filed for party status).

The most common concern (eight persons) was over potential impacts of the project on ground water levels. The dependency of residents and businesses (including a farmer, a nursery owner, and a campground owner) on the ground water was noted. One person made extensive reference to the situations reported in the Staubitz and Miller Report (mentioned under Ruling III above). The campground owner expressed concern over water remaining in his lake. Problems with area wells, including the need for some persons to dig new wells, were noted.

Several expressed concern over the project's impact to the aesthetics and/or character of the neighborhood. The beauty and existence of trees and woods in the area was noted. Decreased property values were feared.

Several expressed concern over noise from either equipment on the site or trucks that will come and go from the site. Several were concerned over traffic and children's safety related to the trucks. It was noted that the access road will be near some homes. Dust was also of concern to several people.

Some persons were concerned over hours of operation; some over whether or not an expansion of the mine beyond the proposal was planned (and whether or not such would be improper "segmentation" under SEQR). Truck smells, a question of the value of the reclaimed site for agriculture, the need for a fence to protect persons from a steep slope, runoff, the effect on local taxes, and whether or not applicant had a track record, were also mentioned as concerns.

One person questioned the Staff's handling of the application, feeling that some information was outdated and that more should have been requested. This person expressed concern over a possible conflict of interest due to a perception that the Staff reviewing the application was being paid out of proceeds generated by fees from permittees.

The above concerns have been adequately addressed by Staff's Negative Declaration (Exhibit 3 in the Record) which sets forth a detailed rationale of why the proposed project is not expected to have a significant impact on the environment, and/or the Special Conditions contained in Draft Permit #4.

With regard to concern over impacts to ground water, reference is made to the discussion under Ruling III. The Negative Declaration (section 1) addresses potential impacts to ground water in detail and explains why there is no concern. Special Condition #7, which prevents excavation beneath 1 foot above the mean high water level, is intended to address ground water concerns.

Aesthetics are addressed in the Negative Declaration (section 6). Staff noted that the mine location will not be visible from other than neighboring properties. Berms and the maintenance of trees along the site's boundary with Sleepy Hollow Campgrounds will screen the mine location from the campgrounds and the two nearest residences. Although there will be a long term visual impact due to the lowering of the site, it will not be significant because the final contours will blend with those existing north and northeast of the site. Special Condition #4, which prevents mine operations and clearing of vegetation within 100 feet of the mine boundary is partly intended to address aesthetic concerns.

Noise, traffic and dust are addressed in sections 7, 8 and 5 of the Negative Declaration. Staff noted that noise will be mitigated by berms, vegetation and the orientation of the mine face. Traffic generated by the mine will not significantly increase or be inconsistent with current highway use. Watering during dry periods will control dust. Special Condition #4 is partly intended to address noise and dust concerns.

Hours of operation were addressed by Staff in section 12 of the Negative Declaration, and in Special Condition #2(c). The value of the reclaimed site for agriculture, the potential for a segmented project, and runoff are addressed in the Negative Declaration, sections 10, 2 and 4 respectively.

All of the public's environmental concerns appear to have been addressed.

The public's comments reveal no significant flaw in the Staff's conclusion that the project would have no significant environmental impact. Likewise they reveal no significant defect in the manner in which this application was processed that would have to be corrected before a permit could be issued. Therefore, the public comments do not indicate a need for further proceedings.

RULING V: The changes made to the Draft Permit, and Applicant's submission of additional information, following publication of the Hearing Notice, do not require additional proceedings, provided that a caveat is placed in the permit with regard to Special Condition 4, as set forth under "Change 6" below.

Draft Permit #4 contains seven changes from Draft Permit #1 which were made after the Hearing Notice was published and Draft Permit #1 was made available for public review. In addition, the Application was supplemented with new information at Staff's request during the same period. Both an applicant's submission of additional information, and Staff's imposition of special permit conditions, can be agents through which a project may be changed. Members of the public who consulted the Department's file in order to determine their position on an application are expected to respond to the range of possibilities discernable from that file -- they are not on notice of matters outside this range. If subsequent changes are made which significantly expand the range of possibilities for the project (i.e., changes which could raise new concern over regulatory compliance or over whether the project will mitigate significant environmental impacts to the maximum extent practicable), then it becomes questionable that the public's right to a hearing on the project has been preserved, because the project under consideration (a range of possibilities) has been significantly changed.

The seven changes to the Draft Permit and Applicant's new information are examined below. Except as stated, these items do not seem to represent significant alterations of the project, thus additional proceedings appear unnecessary. Condition numbers cited are those that are used in Draft Permit #4.

Change 1 and Applicant's new information) General Condition 16 has been changed to add a reference to plans dated 1/4/93 as "approved plans." The condition requires the Applicant to strictly conform to specified plans, including a revised mining plan dated 1/4/93. The revised plan (Exhibit 2j in the Record Staff's markings added to Exhibit 2j during the Issues Conference are not part of the revised plan, but are an illustration of Special Condition 4, discussed at "Change 6," infra. ) was made at Staff's request after this matter was noticed for hearing. The revised plan places the berms closest to Siehl Road inside the "life of mine" limits (like other berms depicted) rather than just outside such limits as depicted previously. The location of the "life of mine" limits was not changed. The change in berm location does not appear to significantly alter the proposed project because the berms and their orientation appear in the original mining plan, their relocation places them just inside the "life of mine" area (farther from the nearest property boundary than originally depicted and presumably moving any associated impacts further into the site), and because Staff's Negative Declaration did not appear to rely upon a precise location for the berm outside the "life of mine" limits.

Change 2) Special Condition 2(a) was changed to delete an 8 foot high fence along the east mine boundary and substitute a requirement that the mine face be graded for safety to a slope no steeper than 3 (horizontal) to 1 (vertical) by the end of each work day. This condition was originally inserted into the Draft Permit at the request of the Town of Newstead pursuant to ECL 23-2711(3)(a)(ii) [which authorizes the locality's chief administrative officer to determine the need for barriers to restrict site access] to protect people who might otherwise wander onto the site from the hazard of potentially steep slopes. The Town agreed to the change because it's safety concern over a slope hazard was relieved by the grading to be required at the end of each work day. Since there appears to be no regulatory standard for fences to restrict access, and the new slope requirement would be within the scope of the originally proposed activities, this change is not considered a significant alteration of the project.

Change 3) Special Condition 2(b) was changed to delete a prohibition on pumping local groundwater for dust control and substitute a requirement for on-site tanks to be filled from off-site sources, with use of on-site water for dust control permitted as a back up. The application mentions that water will be used for dust control, but is silent on its source. The prohibition was originally inserted into the Draft Permit at the request of the Town of Newstead over a concern for ground water availability (rather than dust control). Notwithstanding 6 NYCRR 422.2(c)(4) which mentions that water may be used for dust control, there does not appear to be a restriction on obtaining such water from ground water on site. Given the information on ground water already on record (see Ruling III) the change appears to have no potential to significantly impact the ground water. The presence of the tanks themselves do not seem out of character with the proposed project. This change is not considered to be a significant alteration of the project.

Change 4) Special Condition 2(c) was added to restrict operating hours on Saturdays, at the request of the Town of Newstead pursuant to ECL 23-2711(3)(a)(iv) [which authorizes the locality's chief administrative officer to determine the need to restrict hours of operation] to ensure the comfort of its residents. Since the restricted hours of operation are within the scope of the originally proposed activities, this change is not considered a significant alteration of the project.

Change 5) Special Condition 3 was changed to delete a requirement that the markers designating mine boundaries be set by a formal survey. The condition was originally inserted into the Draft Permit at the request of the Town of Newstead to facilitate the Town's monitoring of Applicant's compliance with its permit. Since there appears to be no regulatory standard for such markers, and they involve no change to Applicant's proposed activities, the change in the permit condition is not considered a significant alteration of the project.

Change 6) Special Condition 4 was changed to delete a prohibition on the removal of trees and shrubs existing outside the mine boundaries, and substitute a prohibition on mining activities, including the clearing of vegetation, within 100 feet of the mine boundary. This provision is intended maintain a vegetative screen around the mine for the purposes of dust and noise control, and to minimize the mine's visual impact. Notwithstanding 6 NYCRR 422.2(c)(4) which discusses what screening can be used for, there appears to be no regulatory standard for maintaining a particular degree of screening or vegetation surrounding a mine. In spite of the lack of a clear-cut regulatory standard, concern over environmental impacts under SEQR might be raised if Special Condition 4 can be interpreted to allow removal of portions of what appears as "wooded" area on Applicant's Mining and Reclamation Plans (plates that are part of Exhibit 2f, and Exhibit 2j) beyond the 100 foot buffer zone, or if the permit is not construed to give the Department at least indirect control over what Applicant does on the 35 acre non-mining portion of the 52 acre site during the term of the permit until reclamation is complete. The "wooded" area covers an area on an order of magnitude equal to the mining area itself.

Based on statements at the Issues Conference, Applicant apparently has no specific plans for the "wooded" area other than to do selective hardwood trimming, removing dead trees to collect firewood -- which is why it objected to the original prohibition in the first place. The Applicant does not want to be prevented from engaging in these activities. Applicant indicated that the areas shown as wooded will remain so. Indeed, the activities mentioned do not seem necessarily inconsistent with maintenance a "wooded" area.

However, Applicant claimed that it was "not within the Department's jurisdiction to restrict the Applicant's use of its land on land outside of the mine boundaries and the trees are on 35 acres that are outside of the mining boundaries and the Applicant obviously needs to be able to use the land as it sees fit ..." (Tr. p 45). These assertions are troubling if Applicant is implying that it is free not to maintain the "wooded" area it displayed on its plans, and/or is free to develop the non-mining portion of the site, without incurring consequences to its permit (e.g., suspension, revocation, modification).

Applicant's plans were relied upon when the Department made its SEQR determination for the project. Although it could be argued that the actual "mined land-use plan" is confined to the lands "affected" by mining activities per the definitions of those terms at 6 NYCRR 420.1 (a) and (i), Applicant clearly intended for Staff to rely on its plans for the entire 52 acre site as a "package" for SEQR purposes. The narrative of the Mined Land Use Plan (Exhibit 2f) on page 4 lists "there are existing vegetative barriers" among the reasons for concluding that noise impacts from the proposed project will not be significant. Regarding visual impacts, the Plan states on page 4 that "existing vegetation will protect adjacent properties." These statements were not confined to the 100 foot buffer zone which conceptually did not exist until the Issues Conference. Most important, Applicant's portion of the Full Environmental Assessment Form on page 3 (in Exhibit 2f as an appendix of the Mined Land-Use Plan) identified the 35 non-mine acres as "Project acreage to remain undeveloped" (underline added). The Department certainly can bind the Applicant to its own representations because the Department gave Applicant a Negative Declaration in return. If there was a misunderstanding here, then a recision of the Negative Declaration, and a reopening of the application process (i.e., more proceedings) would be in order.

To ensure that Special Condition 4 is not interpreted to authorize activities inconsistent with representations in Applicant's plans, the following caveat is to be inserted in the permit under Special Condition 4:

Caveat: This special condition does not relieve the permittee from strictly complying with the plans which have been incorporated by reference under General Condition 16 above.

The addition of this caveat will not substantively alter the proposed project since it does not require Applicant to do anything more than conform to its own plans. With the caveat, Special Condition 4 is within the scope of the originally proposed activities. If Applicant's intentions for the portion of the undeveloped 35 acres outside the buffer zone (during the course of the project) have changed, it may formally apply to modify its plans pursuant to 6 NYCRR 421.4.

Change 7) Special Condition 7 was added to prohibit excavation below 1 foot above the mean high water table, and to require that upon reclamation, the ground surface be not less than 3 feet above the mean high water table. This provision is intended by Staff to protect the ground water. Draft Permit #2, added to the file a few days after the file became available for public review, entirely prohibited excavation within 3 feet of the mean high water table. The new Special Condition 7 is more restrictive than Draft Permit #1 (which had no prohibition), but less restrictive than Draft Permit #2. At the Issues Conference, Staff stated that the Draft #2 version was made in error, and that it had intended to track the language it used in its Negative Declaration. Since there appears to be no regulatory standard controlling excavation depth in relation to the water table, and the new requirement conforms to Applicant's original proposal, this addition to the permit is not a significant alteration of the project. The change to a provision less restrictive than that in Draft Permit #2 also is not considered to be a significant alteration of the project because Staff's Negative Declaration (Exhibit 3) indicates that the current provision would be sufficient to protect the environment (i.e., something more restrictive is not needed).

RULING VI: In light of the Rulings above, there are no issues concerning this Application which require adjudication, thus the adjudicatory phase of this hearing may be cancelled.

RULING VII: Since an adjudicatory hearing is not needed, the issue of Party Status for the Towns of Pembroke and Newstead is moot, and therefore not decided. In the event that an appeal of these Rulings is filed, in order to preserve any rights they may have herein, both Towns are to be treated as though they have been granted Party Status for the purposes of the regulations controlling appeals, which regulations are summarized below.

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, who will decide the appeal within five days of receipt. 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..."

Pursuant to 6 NYCRR 624.4(f), any ruling of the Administrative Law Judge (ALJ) denying or limiting Party Status may be appealed to the Commissioner in writing within three days of the ruling. The Commissioner will decide the appeal within five days of receipt.

Notice of the appeal, and a copy of all briefs submitted in support thereof, shall be given to the ALJ.

Because these Rulings are being sent by mail, additional time is hereby provided for filing appeals herein. All appeals must be received no later than close of business on March 3, 1993.

Appeals to the Commissioner are to be sent to the following address: Commissioner Thomas Jorling, c/o Robert Feller, Assistant Commissioner; N.Y.S. Dept. of Environmental Conservation; 50 Wolf Road; Albany, NY 12233-1550. (See Service List attached for other addresses).

ORDER OF DISPOSITION

Subject to the Commissioner's determination of any appeals which might be filed herein, absent the existence of issues requiring adjudication, the adjudicatory hearing is hereby cancelled pursuant to 6 NYCRR 624.6(c), and the application is hereby remanded to Department Staff for continued processing as may be required, leading to issuance of a permit as drafted in Appendix A hereto, but modified as set forth in Appendix B hereto and further modified in accordance with Rulings II and V above.

February 17, 1993
Albany, New York

____________/s/____________
Frank Montecalvo,
Administrative Law Judge

To: Official Service List attached

Appendices:

Appendix A - Draft Permit #1

Appendix B - "Draft Permit #4," page 3 of 3.

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