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South County Sewer Corporation (Sterling Forest) - Preliminary Rulings, June 7, 1995

Preliminary Rulings, June 7, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application for
State Pollutant Discharge Elimination
System (SPDES) permits pursuant to
Environmental Conservation Law of the
State of New York (ECL) Article 17
and Title 6 of the Official Compilation
of Codes, Rules and Regulations of the
State of New York (6 NYCRR) Parts 750
et seq. as part of a planned community
development on a 17,505 acre site located
within the Towns of Monroe, Tuxedo and
Warwick in Orange County, by

SOUTH COUNTY SEWER CORPORATION
PO Box 803
Tuxedo, New York 10987

STERLING FOREST

PRELIMINARY RULINGS
CONCERNING THE
LEGISLATIVE HEARING
AND
ISSUES CONFERENCE

DEC APPLICATION Nos.
3-3350-00049/00001-0
3-3350-00027/00001-0

Summary

Legislative hearing sessions concerning the captioned permit applications and Draft Generic Environmental Impact Statement (DGEIS) are scheduled for June 13, 15, and 20, 1995 at various locations in Orange County. The Issues Conference is scheduled for August 1 and 2, 1995 at the Tuxedo Town Hall.

Interested persons have made the following requests concerning the legislative hearing sessions and Issues Conference. The Regional Plan Association (RPA) wants an additional legislative hearing session in New York City. For the reasons explained below, this request is denied.

The Palisades Interstate Park Commission (PIPC) and the New York - New Jersey Trail Conference (NY/NJTC) want to reserve time at the legislative hearing sessions for their experts to present a summary of their written comments about the DGEIS. These requests are granted as conditioned below.

The PIPC and NY/NJTC also request that petitions for Party Status be limited to the requirements outlined in 6 NYCRR 624.5(b)(1) only, rather than the requirements outlined in 624.5(b)(1) and 624.5(b)(2). These requests are denied as explained below.

Additional Legislative Hearing Sessions

In a letter dated May 17, 1995 to Jean McGrane, Director of the Department's Region 3 Office in New Paltz, the Regional Plan Association (RPA) asked for an additional legislative hearing session regarding the captioned matter in New York City. The Regional Permit Administrator from Region 3, Margaret Duke, forwarded RPA's request to me with a cover letter dated May 31, 1995.

RPA is concerned that the legislative hearing sessions in Orange County will not provide an adequate opportunity for New York City residents to speak at the hearings and to listen to the other comments made about the DGEIS at the legislative hearing sessions. According to RPA many New York City residents rely on public transportation, and therefore, getting to the hearing sessions in Orange County will be difficult. RPA also explained that hearing sessions concerning the Northern Forest Land Council on the Adirondacks, and the New York - New Jersey Highlands Regional Study were held in New York City.

In the May 31, 1995 cover letter, the Region 3 Department Staff did not comment about RPA's request.

By letter dated June 5, 1995, Robert Davis, Counsel for the Sterling Forest Corporation and the South County Sewer Corporation, objected to RPA's request.

RULING: RPA's request for an additional hearing session in New York City is denied. Section 624.3(b)(2) requires that the hearing must be held in the town, village or city in which the project is located. The site of the proposal is located within the Towns of Monroe, Tuxedo and Warwick, Orange County. Consequently, legislative hearing sessions have been scheduled in each of the Towns. As provided in the Combined Notice, any one who is unable to attend any of the legislative hearing sessions may comment about the DGEIS and the requested SPDES permits in writing. Written comments should be sent to Mr. Ciesluk at the Department's Region 3 Office in New Paltz.

Presentations by Experts at the Legislative Hearing Sessions

By letter dated May 25, 1995, Jeffery Baker, counsel for the Palisades Interstate Park Commission (PIPC), asked to reserve time at the legislative hearing sessions for his client's experts to present a summary of their written comments about the DGEIS. To his request, Mr. Baker attached a list of experts, their area of expertise, and the approximate length of time for their presentation.

By letter dated May 31, 1994, JoAnn Dolan, Executive Director of the New York - New Jersey Trail Conference (NY/NJTC), also requested time at the legislative hearing sessions for its experts to present a summary of their written comments about the DGEIS.

In his letter dated June 5, 1995, Mr. Davis, on behalf of the Applicant, did not object to allocating a reasonable amount of time for focused presentations. Mr. Davis requested that repetitive comments be avoided.

RULING: The purpose of the legislative hearing is to provide for the public review of the application materials and Draft SEQR documents concerning a particular project. The legislative hearing, however, is not a forum for special interest groups to treat members of the public, who have come to express their individual concerns, as a captive audience. I grant PIPC's and NY/NJTC's requests as conditioned below:

  1. People who have come to express their individual comments about the proposal will have an opportunity to speak first. I will make this determination based on the information provided to me on the Public Hearing Registration Card.
  2. The schedules provided to me by PIPC and NY/NJTC will be strictly adhered to with respect to the speaker's identity, the topic and the length of the presentation. PIPC and NY/NJTC should confer with each other to avoid presenting duplicative information during the course of the legislative sessions.
  3. The presenter is responsible for any audio-visual aids and equipment. I will require three copies of all slides, video tapes and transparencies. I will retain one copy and give the Department Staff and the Applicant the other two copies. If the use of any audio-visual aid prevents me from maintaining order at the hearing, I will prohibit its use.

Requests for Party Status

In letters dated May 25, 1995 and May 31, 1995, the PIPC and NY/NJTC requested that their petitions for Party Status be limited to the requirements outlined in 6 NYCRR 624.5(b)(1) only, rather than the requirements outlined in 624.5(b)(1) and 624.5(b)(2). Referring to O&D Memo #85-06, PIPC argued there may not be sufficient time to review any draft SEQR conditions that the Department Staff may develop during the period between the legislative hearings and the date set for filing requests for Party Status. PIPC and NY/NJTC propose that briefs concerning issues for adjudication be filed after the Department Staff presents all the draft permit conditions.

The Applicant objected to the request made by PIPC and NY/NJTC. According to the Applicant, PIPC actively participated in the scoping of the DGEIS and has been able to review preliminary versions of the DGEIS and other application materials. The Applicant asserted that PIPC does not need the Department Staff's draft permit conditions to propose issues for adjudication.

RULING: The requirements for petitions for full Party Status are outlined in 6 NYCRR 624.5(b)(1) and 624.5(b)(2). Among other things, 624.5(b)(1) requires the petitioner to identify a representative and the petitioner's environmental interest in the proceeding, as well as explain how that interest relates to the ECL. Section 624.5(b)(2) requires the petitioner to identify substantive and significant issues for adjudication, and to offer proof to support the proposed issues.

PIPC's reliance on O&D Memo #85-06 is misplaced. Although the Commissioner has directed the Department Staff to present draft permit conditions as soon as possible and no later than the Issues Conference, the O&D Memorandum does not modify any of the requirements outlined in Part 624 regarding requests for Party Status.

If PIPC and NY/NJTC can have experts available at the legislative hearing to provide comments about a broad range of topics, then it is reasonable to expect that PIPC and NY/NJTC will be able to propose issues for adjudication in their requests for Party Status. O&D Memo #85-06 recognizes that prospective intervenors can help shape the proposed permit conditions by the issues they assert (p.2).

Moreover, this request by PIPC and NY/NJTC is inherently unfair to the prospective intervenors who have not yet identified themselves to me, and who would, therefore, not receive a copy of this ruling until some time after filing their requests for Party Status. Therefore, the request to postpone the filing of proposed substantive and significant issues for adjudication to a date after the Department Staff presents all possible draft permit conditions is denied.

The Department Staff will be expected to comply with the direction provided in O&D Memo 85-06 to the extent possible. As explained in the Combined Notice, any one requesting Party Status will be expected to comply with both 6 NYCRR 624.5(b)(1) and 624.5(b)(2) to the extent possible. Finally, all issues conference participants will have ample opportunity to review and comment about all proposed draft permit conditions.

/s/
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
June 7, 1995

To: Service List dated June 6, 1995

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