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Sour Mountain Realty, Inc. - Deputy Commissioner Ruling, April 9, 1997

Deputy Commissioner Ruling, April 9, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1010

In the Matter

- of the -

Applications for permit to surface
mine rock and related activities
pursuant to the Environmental
Conservation Law (ECL) Article 3,
8, 15, 17, 19, 23 & 70 in Fishkill,
Dutchess County, by

SOUR MOUNTAIN REALTY, INC.

DEC Application No. 3-1330-47/6-0

RULING OF THE DEPUTY COMMISSIONER
ON EXPEDITED APPEAL

April 9, 1997 Ruling of the Deputy Commissioner on Expedited Appeal

On March 28, 1997, the Department Staff filed a motion to request leave to file an expedited appeal of Administrative Law Judge ("ALJ") Francis W. Serbent's March 26, 1997 ruling denying Staff's motion for an adjournment of the permit hearing in the subject matter. Leave was granted on March 31, 1997. Responses were filed by April 7, 1997 by Sour Mountain Realty, Inc., (the "Applicant") through its attorney, Laura Zeisel, Esq. and Scenic Hudson et al., through its attorney, John W. Caffry, Esq. Replies were filed on April 8, 1997 by Mr. Caffry and Ms. Zeisel.

Discussion

The substance of Staff's motion for an adjournment of the hearing concerns the absence of visual impact information on the record that I need to take into account in any final decision and my SEQRA findings. Visual impacts were issues certified for adjudication pursuant to an Interim Decision of July 18, 1996. The Staff's visual impact consultant, The Saratoga Associates, was retained to provide services to the Staff during its SEQRA review on visual impact issues. A dispute arose over the fee's that the Applicant should pay the consultants for its SEQRA review pursuant to 6 NYCRR Part 617.17 (d) [1987]. These services were part of a 1994 agreement between The Saratoga Associates and Sour Mountain Realty, Inc. That agreement provided that The Saratoga Associates would "work under the direction of, and report only to the NYS DEC (Region 3)." The scope of work included attendance at hearings and testifying on DEC's behalf on visual impact issues.

On March 25, 1997, collection attorneys (Wichler and Gobetz, P.C.) on behalf of Sour Mountain Realty, Inc. notified The Saratoga Associates that they were retained to collect a claim for monies in excess of a monetary cap specified in the 1994 agreement. The Staff was made aware by Applicant's attorney in this proceeding, Ms. Zeisel, on March 21, 1997 that Sour Mountain Realty would not be responsible for further payment to The Saratoga Associates. In view of this, the Staff was arranging for a new procedure to compensate The Saratoga Associates, when, as the March 25, 1997 collection letter shows, Sour Mountain Realty, Inc. raised a conflict of interest issue between DEC and The Saratoga Associates, pursuant to Part 29, Unprofessional Conduct, of the Regulations of the Commissioner of Education. This letter was read to discourage any further involvement by The Saratoga Associates on visual impact matters. In view of the unprofessional conduct matter referenced by Applicant's collection attorneys, The Saratoga Associates did not participate in the March 26, 27 and 28 hearing in which visual impact testimony was entered on the record. These dates had previously been set aside well ahead of these sessions to hear visual impact testimony. Such testimony continued until March 28, 1997 when the proceeding was adjourned to the previously scheduled April 14, 1997 date.

After argument from the parties, the ALJ denied the Staff's motion for an adjournment on March 26, 1997 and said essentially that Staff should have other personnel available to testify on visual impacts.

Staff had a reasonable expectation that it would have the services of The Saratoga Associates in the visual impact portion of this case. The ALJ's ruling to continue the hearing in absence of the consultant prejudiced the Staff by preventing them the opportunity to effectively evaluate and examine the Applicant's witnesses with the expertise of Staff's consultants at hand. The ruling undermines the completeness of the record and jeopardizes my ability to evaluate the facts. Even if Staff had other personnel available who were qualified to undertake a visual impact analysis as suggested by the ALJ, they would need time to study the site, the plans and applications and evidence submitted, and otherwise complete their visual impact review.

The Applicant complains of a protracted environmental review of its project. It is important to note that Staff is charged with the responsibility of ensuring any application meets the statutory and regulatory criteria. Staff has concluded that it cannot complete that duty without the assistance of its consultants. Whatever complaint Applicant has about processing the application to date must be considered in view of the circumstances presented here.

The Applicant's actions precluded Staff's analysis of the visual impact issue from entering the record for my review. Through its actions, the Applicant has contributed to or caused delay in reviewing its own application. The Applicant can, at any time, consent to the Staff's suggested remedy that they, not the Applicant, be allowed to pay for the remaining services of The Saratoga Associates. If that option is not satisfactory as it "will be tantamount to a decree that a waiver of the Applicant's rights under the Education Law is required to advance this matter" as the Applicant's collection attorney's assert, then other options should be explored. Whatever remedy is selected shall not prevent or otherwise inhibit the Staff from completing its review of the visual impact issue.

Conclusion

For the foregoing reasons, the appeal by Staff and Scenic Hudson from the ALJ's ruling which denies Staff's motion for adjournment of the hearing is granted and the ALJ's ruling is reversed. Staff may re-call and examine witnesses that have testified on visual impacts and may present rebuttal testimony with the assistance of its visual consultant. The adjournment shall continue with respect to visual impacts until the Staff's visual impact consultant is available. The proceeding may convene on April 14, 1997 on other matters.

For the New York State Department
of Environmental Conservation
/s/
By: David Sterman, Deputy Commissioner

Albany, New York
April 9, 1997

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