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Sour Mountain Realty, Inc. - Commissioner Ruling, February 28, 1997

Commissioner Ruling, February 28, 1997

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

In the Matter

- of the -

Applications for permits to surface mine rock and related
activities pursuant to the Environmental Conservation Law (ECL)
Articles 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 MOTION FOR EXPEDITED APPEAL

February 28, 1997

Ruling of the Deputy Commissioner

Scenic Hudson's and Staff's motions for leave to file an expedited appeal from Administrative Law Judge Serbent's February 6, 1997 Ruling are granted. The appeals, having been fully briefed and considered on the merits, are denied. The adjudicatory hearing should proceed as scheduled by the ALJ in March 1997 on noise and visual impact issues.

Discussion

Scenic Hudson and Staff appeal on an expedited basis from the ALJ's February 6, 1997 Ruling which denied their motions for an order that the scheduled hearing be adjourned without date, pending preparation of a supplemental environmental impact statement (SEIS). The SEIS will consider whether the suspected presence of timber rattlesnakes on lands in the vicinity of the proposed quarry requires modification of the plans for the proposed mine. Scenic Hudson and Staff also seek related relief which was denied.

The Applicant objects to any adjournment because of the delay that would necessarily be involved. Applicant supports the ALJ's ruling and opposes the appeals in all respects. Applicant's President points out in an affidavit that the application of Sour Mountain Realty, Inc. for a mined land reclamation permit has been pending for almost six years. Following Staff's acceptance of the DEIS for the project on May 30, 1995, a public legislative hearing was held on September 27, 1995. An issues conference was completed on November 16, 1995, subject to exchanges of documents as to proposed issues that was completed on March 8, 1996. A ruling by the Administrative Law Judge (ALJ) was issued on March 28, 1996. An Interim Decision of the Commissioner on appeals from the issues ruling was issued on July 18, 1996. The adjudicatory hearings were then scheduled to begin in the Fall of 1996, but were suspended to allow the parties to negotiate a possible settlement of disputed issues. The settlement efforts have not been successful. Applicant's President states that applicant is now ready to proceed with the adjudicatory hearing on the noise and visual impact issues as currently scheduled on March 10, 1997. He states that Applicant has expended considerable time and money to prepare its testimony, and that it would be prejudiced by any additional delay.

I conclude that the ALJ's February 6, 1997 ruling should be upheld in all respects for the reasons stated therein. It is premature to conclude at this juncture that the suspected presence of a timber rattlesnake den or dens on adjacent property may or may not result in the proposed project having a significant adverse impact on timber rattlesnakes within the meaning of SEQRA. The purpose of the SEIS is to make that analysis. The Staff's and Scenic Hudson's motions, on the other hand, are premised on the assumption that the plans for the project as proposed, which currently include snake fencing, will in fact adversely affect the habitat of timber rattlesnake populations in the area. The appropriate way to proceed, as the ALJ's February 6, 1997 decision states, is for the hearing to go forward as presently scheduled on the noise and visual impact questions. Meanwhile, the SEIS on timber rattlesnakes can be developed, following which a determination can be made as to whether any additional mitigation measures are appropriate with respect to impacts on the rattlesnakes, and whether adjudicable issues have been raised, as a result of the information provided in the SEIS on timber rattlesnake dens.

Staff and Scenic Hudson's generalized assumptions that proceeding with the hearings as presently scheduled on the issues of noise and visual impacts would be inefficient are outweighed, in my judgment, by the applicant's assertions of prejudice. There is no basis to assume that the evidence on noise and visual impacts would need to be substantially altered by reason of the SEIS, or by any modifications to the project that might be a result of the SEIS. It is at least as likely that any such modifications would reduce noise and/or visual impacts as would increase them. Regardless, the proposed project's noise impacts and visual impacts need to be examined on the record for purposes of a final decision on this application and that process can and should begin.

Conclusion

For the foregoing reasons, the appeals by Staff and Scenic Hudson from the ALJ's ruling which denies their motion for adjournment of the hearing and for related relief are denied.

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

Albany, New York
February 28, 1997

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