South County Sewer Corporation (Sterling Forest) - Ruling 3, July 14, 1995
Ruling 3, July 14, 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, Orange County, by
SOUTH COUNTY SEWER CORPORATION
PO Box 803
Tuxedo, New York 10987
DEC APPLICATION Nos. 3-3350-00049/00001-0 and 3-3350-00027/00001-0
This ruling denies the Town of Monroe's July 5, 1995 request to extend the date for filing its petition for full party status in the captioned matter from July 17, 1995 to July 26, 1995. The Town may file a late petition provided it meets the criteria outlined in 6 NYCRR 624.5(c).
Request for Extension
By letter dated July 5, 1995, M.E. Frerichs, Supervisor for the Town of Monroe, requested an extension of the date for filing the Town's petition for full party status in the captioned matter from July 17, 1995 to July 26, 1995. The reason for the extension was that the Town Board would not meet until July 24, 1995.
In a memorandum dated July 5, 1995, I directed the Town to explain why it requested an extension 13 days before the July 17, 1995 filing date when my records showed that the Region 3 Department Staff provided the Town with a copy of the Combined Notice of Public Hearing on or about April 7, 1995. The Combined Notice dated April 7, 1995 provided the Town with notice that petitions for full party status were due by July 17, 1995. The Town's explanation was due by July 10, 1995. To date, I have received no response from the Town.
The July 5, 1995 memorandum provided the Department Staff and the Applicant with an opportunity to reply by July 14, 1995. The Department Staff and the Applicant replied to the Town's request for extension by letters dated July 12, 1995, and July 13, 1995, respectively.
Discussion and Ruling
The Department Staff did not object to the Town's request for an extension. According to the Staff, the Town demonstrated good cause [624.5(c)(2)(i)] since the Town Board will not meet until July 24, 1995 to decide whether to petition for full party status. The Staff also argued that the Town's request would not significantly delay the proceeding [624.5(c)(2)(ii)] because the Issues Conference for the captioned matter has been adjourned without date. In addition, the Department Staff argued that the Town's participation would materially assist in identifying and determining issues for adjudication [624.5(c)(2)(iii)] because the Town is an involved agency.
The Department Staff argued that a ruling made on July 14, 1995 or latter that denies the Town's request would not provide the Town with enough time to prepare a timely petition for full party status by the July 17, 1995 deadline.
Finally, the Department Staff would not object to an extension of the filing date for all petitions for full party status from July 17, 1995 to July 26, 1995. The basis for the Staff's position is that the public comment period for the Draft Generic Environmental Impact Statement closes on July 26, 1995.
Absent a response from the Town to my request for additional information, the Applicant stated that it takes no position on the Town's request. The Applicant, however, did object to the Department Staff's position about extending the filing date for all requests for full party status from July 17, 1995 to July 26, 1995. The Applicant argued that requests for extensions should be considered individually based on the criteria provided in 624.5(c)(2).
For the following reasons, I deny the Town's request for an extension. First, the Town's request is untimely. Though given the opportunity, the Town has not explained why it made its request some 13 days before the filing date when the Town received notice of the July 17, 1995 filing date on or about April 7, 1995.
Second, granting the Town's request for an extension would be inherently unfair to those persons and groups who are working diligently to meet the July 17, 1995 filing date. In addition, a general extension of the filing date from July 17, 1995 to July 26, 1995 also would be unfair since adequate notice of the extension is not possible as illustrated by the extension of the comment period on the DGEIS. The Office of Hearings receives several inquires daily about the schedule for these proceedings despite the publication of the Notice of Extension of Public Comment Period and Adjournment of the Issues Conference (the Notice) in the local newspapers during the week of July 10, 1995, and the ENB on July 12, 1995, as well as directly mailing the Notice to over 80 persons and groups known to have an interest in this Project.
Finally, the Town, and not the Department Staff, has the burden of showing that the Town's request for an extension meets the criteria outlined in 624.5(c)(2). By not responding to my request for additional information, the Town has not demonstrated there is good cause for an extension [624.5(c)(2)(i)].
The Staff's argument that a ruling that denies the Town's request would not provide the Town with enough time to prepare a timely petition for full party status by July 17, 1995 is without merit. The Town brought this hardship upon itself by making its request 13 days before the filing date.
The Town's request for an extension is denied. This ruling, however, does not prohibit the Town from filing a late petition for full party status as provided by 624.5(c). The Town is hereby put on notice that if it files its petition after July 17, 1995, the Town's petition must meet all the criteria outlined in 6 NYCRR 624.5(c).
Daniel P. O'Connell
Administrative Law Judge
Dated: Albany, New York
July 14, 1995
To: Mike Frerichs, Supervisor FAX: 914-782-6039
Katherine Hudson, Esq. FAX: 914-255-3042
Robert S. Davis, Esq. FAX: 212-541-4630
Steven Mairella, Esq. FAX: 914-351-2667
By regular mail to attached distribution list