Saint Lawrence Cement Company, LLC - First Interim Decision, December 6, 2002
First Interim Decision, December 6, 2002
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Albany, New York 12233-1010
In the Matter
- of -
the Application for a State facility permit for air
pollution control pursuant to Article 19 of the
Environmental Conservation Law ("ECL") and 6 NYCRR
Parts 201 et seq.; a State Pollutant
Discharge Elimination System ("SPDES") permit
pursuant to ECL Article 17 and 6 NYCRR Parts
750-758; an ECL Article 15 Protection of Waters
permit; a §401 Water Quality Certification pursuant
to 6 NYCRR Part 608; a Mined Land Reclamation Law
permit modification pursuant to ECL Article 23 and
6 NYCRR Parts 420 to 426; and a Freshwater Wetlands
permit pursuant to ECL Article 24 and 6 NYCRR Part 663
ST. LAWRENCE CEMENT COMPANY, LLC
Permit Application No. #4-1040-00011/00001
FIRST INTERIM DECISION
December 6, 2002
FIRST INTERIM DECISION OF THE COMMISSIONER
Introduction and Background
This Interim Decision relates to appeals from the Issues Ruling ("Ruling") of Administrative Law Judge Helene G. Goldberger and Administrative Law Judge Maria E. Villa("ALJs") dated December 7, 2001. The ALJs' Ruling addresses various issues raised by the parties and proposed intervenors in connection with the application of St. Lawrence Cement Co., LLC., (hereinafter "Applicant" or "SLC")for environmental permits from the Department of Environmental Conservation ("Department" or "DEC") to construct and operate a cement manufacturing plant on its property in the Town of Greenport and City of Hudson, Columbia County.
By letter dated January 16, 2002, the times for the filing of appeals of the Ruling and for service of responses to appeals were extended by Chief Administrative Law Judge Daniel E. Louis to February 1, 2002 and March 15, 2002, respectively. Timely appeals were filed by the Applicant, Region 4 staff of DEC ("Staff"), The Olana Partnership ("TOP"), the Natural Resources Defense Council ("NRDC"), the Hudson Valley Preservation Coalition ("HVPC"), Friends of Hudson ("FOH"), the Massachusetts Department of Environmental Protection ("MA DEP"), the Preservation League of New York State ("League") and the National Trust for Historic Preservation ("NTHP"). Reply briefs were timely filed by each of the appellants and also by two groups that had not appealed from the Ruling, Riverkeeper and the Village of Athens.
On August 5, 2002, I issued a ruling authorizing supplemental appeals of issues arising from the ALJs' Ruling and directly related to certain information which was received and reviewed by the issues conference participants, after the issuance of the Ruling. Although review of the record clearly indicates that the parties and proposed parties had ample opportunity to fully develop their arguments to the ALJs during the many days the Issues Conference was held and the ALJs reached a definite conclusion on the issues presented, the language of the Issues Ruling raised the possibility of holding a second issues conference with respect to certain issues already decided. Based upon a concern that such language may have been read to imply there would be asecond opportunity to contest issues fully decided by the ALJs, I authorized the parties and potential intervenors an additional opportunity to appeal the ALJs determinations set forth in the Issues Ruling. Two objections to this ruling were filed by FOH and HVPC. Both FOH and HVPC indicated they would withdraw their objections based upon a conference call and memorandum, clarifying the ruling. Although I note that FOH has affirmatively decided not to withdraw their objection, it is clear that the ruling is fully authorized by and consistent with the Part 624 hearing procedures, and my authority. As such, the supplemental appeals and replies authorized by the ruling will be considered by me in my Second Interim Decision related to the Ruling of the ALJs.
The Applicant owns several large parcels situated in Columbia County, partially in the Town of Greenport and partially in the City of Hudson consisting of a total of approximately 1,750 acres. These parcels, which are contiguous except for road crossings, extend from the Hudson River on the west to Newman, Hiscox and Spook Rock Roads on the east. On the largest (1,222 acres) and most easterly of these parcels, the Applicant currently conducts a permitted limestone and other rock mining operation for use at its cement manufacturing plant in the Town of Catskill, Greene County. At its Catskill site, the Applicant also operates a mine, a permitted landfill for cement kiln dust (CKD) and a dock on the west side of the Hudson River.
The Applicant proposes to construct and operate a dry process cement manufacturing plant within the bounds of the 1,222 acre parcel at the mine site. Included at the facility would be a raw mill site, kiln feed blending silo, preheater/precalciner tower, rotary kiln, clinker cooler, and finish mill system. The Applicant's plan also includes the construction of a flexible conveyor between the new plant and its presently inactive loading dock on the east banks of the Hudson River. The conveyor will be used to both transport cement from the plant to the loading dock and solid fuel and other materials from the dock to the plant. The Applicant has also proposed office and maintenance facilities, access roads, parking areas, a new docking facility and a public park.
If the Applicant is granted approval to proceed with its project, it has agreed to close down the kiln system for the manufacturing of clinker at its Catskill facility and to remove the bunker silos situated at the dock at the terminus of the jetty extending into the Hudson River. Under such circumstance, clinker would no longer be manufactured at the Catskill site but approximately 50,000 metric tons of clinker per year could be trucked to Catskill from the Greenport plant for further processing. The Catskill dock would no longer be used for the barging of cement but the cement kiln dust landfill (CKD) would continue to be used. The mine at Catskill would no longer be used in the manufacturing process but would continue to be actively worked under lease to others or by the Applicant for other purposes. DEIS, p. 1-43. Also, the Applicant would remove the stack and a bank of silos from the old Universal Atlas Cement plant near U.S. Route 9 in Greenport. As part of its plans, the Applicant also proposes the rehabilitation of certain structures on its property for use and historic preservation.
The permits required by the Applicant to construct and operate the proposed facility are as follows: a permit for air pollution control under Article 19 of the Environmental Conservation Law ("ECL") and Part 201 et seq. of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR); a permit for a state pollutant discharge elimination system ("SPDES"), ECL Article 17 and 6 NYCRR Parts 750-758; an Article 15 Protection of Waters Permit and §401 Water Quality Certification, 6 NYCRR Part 608; a mined land reclamation permit modification, Article 23 and Parts 420-426; and a freshwater wetlands permit, ECL Article 24 and 6 NYCRR Part 663.
The Department is lead agency under the State Environmental Quality Review Act (SEQRA - ECL Article 8). On April 8, 1999, DEC staff determined that this facility is a Type I action that may have a significant impact on the environment. Accordingly, the Department issued a positive declaration requiring the preparation of a draft environmental impact statement (DEIS). A public scoping comment period was provided and a public scoping hearing was held on June 24, 1999 at the Columbia County Office Building in Hudson, New York. Pursuant to SEQRA regulation 6 NYCRR § 617.11(e), DEC must make a finding that the proposed project is consistent with the State's coastal policies. See also 19 NYCRR § 600.4. Staff accepted the DEIS as complete and available for public review on May 2, 2001.
The Department published a combined notice of hearing and complete application and notice of determination of review - prevention of significant deterioration (PSD) in the May 2, 2001 Environmental Notice Bulletin. The Applicant published these notices in the May 4, 2001 edition of The Independent and the May 4, 2001 edition of the Register Star. The notice of hearing provided that written comments were to be received by DEC by no later than June 20, 2001. As 6 NYCRR § 617.9(a)(4)(iii) provides that comments will be received by the lead agency for no less than 30 calendar days from the first filing and circulation of the notice of completion or no less than 10 calendar days following a public hearing (whichever is later), a corrected notice was published in the May 9, 2001 editions of the aforementioned publications setting a deadline of July 2, 2001 for mailing of written comments. In addition, based upon the demonstrated need of potential intervenors for more time to prepare petitions for party status and Staff's need for more time to prepare draft permits for mining, wetlands and protection of waters, Administrative Law Judge (ALJ) Goldberger postponed the date for filing petitions to July 13, 2001 and for commencement of the issues conference until July 18, 2001.
Standards for Adjudication
Under the Department's permit hearing procedures, an issue is adjudicable if "it is proposed by a potential party and is both substantive and significant." 6 NYCRR § 624.4(c)(1)(iii). An issue is "substantive" if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. An issue is "significant" if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. 6 NYCRR § 624.4(c)(3).
Prior decisions of the Commissioner establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.
In situations where Staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR § 624.4(c)(4). Agreement by Staff and an applicant over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by Staff constitutes prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992. The burden imposed on the intervening party in such instances was upheld by the Third Department in Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256 (3rd Dept. 1988). There, the court, in upholding the Commissioner's determination to exclude certain issues from adjudication, stated that the burden on the intervenors was "... to provide a clear explanation of the issues sought to be adjudicated..." Id. at 261.
While the intervenor's offer of proof at the issues conference need not be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See,Id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." Matter of Sithe, supra. Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, at 8, citing Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.
Judgments about the strength of the offer of proof must be made in the context of the application materials, the analysis by Staff, draft permits and the issues conference record. Offers of proof submitted by a prospective intervenor may be completely rebutted by reference to any of the above, alone or in combination. In such a case, it would be a disservice to the applicant and the public at large to proceed any further with time consuming and costly litigation. See, Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990.
Accordingly, the environmental permit information contained in the application for the various permits it seeks, the draft permits and attendant information required by the Department, constitutes the applicant's prima facie case for issuance of the Department's permits. See, Matter of Athens Generating Company LP., Interim Decision, June 2, 2000, p. 4, citing Sithe, supra. See,also, Matter of 4'Cs Development Corporation, ALJ Ruling, February 27, 1996; Matter of Waste Management of NY, LLC., Interim Decision, May 15, 2000. The application materials are available at the issues conference to assist the DEC ALJ in determining if there are issues requiring an adjudicatory hearing.
In cases where the Department is lead agency under SEQRA, issues concerning the sufficiency of the Draft EIS may be adjudicated. 6 NYCRR § 624.4(c)(6)(i)(b). Such issues must, however, be substantive and significant as those terms have been further described above. In addition, the ability of the Department, as well as other involved agencies to demonstrate that the identified adverse impacts have been avoided or reduced to the maximum extent practicable, in making the requisite findings statement, is likewise subject to review. 6 NYCRR § 617.9. See Matter of Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995. Where a full record needs to be developed for decision making purposes, the hearing rules contemplate that consideration of supplemental SEQRA information may take place through the adjudicatory process. 6 NYCRR § 624.4(c)(6)(i)(b). See Matter of Jointa Galusha, LLC., Interim Decision of the Commissioner, May 7, 2002.
Ruling of the ALJs and Appeals of the Parties
The ALJs made a number of rulings on such topics as air quality, stormwater discharge, mining, noise, traffic, conflict of the project with waterfront use plans, wetlands, river and terrestrial ecology, visual impacts, historic resources, community character, economic impacts, alternatives under SEQRA and the Applicant's record of compliance. Of these many rulings, the ALJs determined that eight issues were adjudicable. They were: the use of National Weather Service data as opposed to on-site data for air dispersion modeling and the accuracy of such modeling; whether short term limits for nitrogen oxides adequately meet new source review requirements; whether the Applicant is in conformity with LAER (lowest achievable emission rate) with respect to volatile organic compounds (VOC's) and whether a regenerative thermal oxidizer (RTO) is appropriate technology to attain LAER; whether the Applicant relied on suitable data in making assessments regarding particulate matter with a diameter of less than 2.5 microns (PM2.5); whether Applicant's noise analysis was properly conducted; whether the Applicant's riverine habitat mitigation-compensation plan will substitute for the habitant to be negatively impacted; whether the Applicant has adequately mitigated or offset visual impacts of the project; whether the economic benefits of and need for the project will outweigh any unmitigated adverse environmental impacts. In addition, the ALJs directed supplementation of the record on nine topics and twenty-eight draft permit amendments.
The Applicant, Staff and the intervenors appealed many of the ALJs' rulings. However, a large number of rulings were not appealed. In accordance with my August 5, 2002 ruling, as discussed earlier, I authorized the parties and potential intervenors to supplement their appeals of the ALJs' Ruling. Consistent with my August 5th ruling, this First Interim Decision will only discuss those issues which have already been appealed and clearly would not be the subject of a supplemental appeal. Those issues which could be the subject of a supplemental appeal will be decided by me in a Second Interim Decision.
Three of the ALJs' rulings related to air matters will be decided in this First Interim Decision: 1) use of off-site versus on-site meteorological data used in air emission modeling; 2) identification of emission reduction credits (ERCs) prior to any adjudicatory hearing; and 3) supplementation of the Draft Environmental Impact Statement (DEIS) with respect to air quality impacts on Olana. The remaining rulings of the ALJs with respect to air matters will be addressed in my Second Interim Decision.
Use of Off-site versus On-site Data for Air Modeling
Applicants, such as SLC, who have applied for a New York state facility air permit and a federal Prevention of Significant Deterioration ("PSD") permit are required to undertake air quality analyses though computer modeling to support these air permit applications. See 40 CFR § 52.21(k). Modeling is required as part of the air permit applications and must be completed to Department staff's satisfaction before an air permit application is deemed complete pursuant to 6 NYCRR §621.5 and 6 NYCRR §621.4(g).(1)
The Department's guidance document on the modeling procedures for such air analyses states that modeling is "used in establishing compliance with ambient standards and Prevention of Significant Deterioration (PSD) increments, locating monitor sites, estimating health effects such as risk from toxic pollutants, and performing visibility and Air Quality Related Value (AQRV) assessments for PSD Class I areas." DEC Air Guide 26, NYSDEC Guidelines on Modeling Procedures for Source Impact Analyses(rev'd Dec. 9, 1996) at 1. The Department's guidance recommends that modeling protocols be submitted to the Department for its review and approval prior to undertaking any modeling applications. Id. at 2.
SLC submitted its air dispersion modeling protocol to Staff in December 1999 in support of its state air facility and PSD permit applications. The protocol called for the initial modeling of the proposed project using two EPA-approved models: CTSCREEN, which models the worst-case impacts of a proposed source over complex terrain (elevations above stack height); and ISCST3, which models worst-case impacts over simple terrain (elevations below stack height).(2) The CTSCREEN model does not require the use of meteorological data because the model is designed to simulate a multitude of worst-case meteorological conditions without regard to the specific meteorological conditions at a project site. The ISCST3 model, in contrast, requires the use of meteorological data. SLC proposed to use National Weather Service data from the Albany airport in its simple terrain modeling. The protocol also included an option to use on-site data collected from a tower constructed by SLC on the project site if the CTSCREEN model indicated non-compliance with ambient standards.(3)
Subject to a review of all aspects of the protocol, Staff conditionally approved the use of Albany NWS data in mid-December 1999, with final review and approval occurring in May 2000. Staff Appeal Brief at 2-3. SLC submitted its air permit application to the Department in September 2000.
The various appeals and replies filed with respect to the ALJs' ruling in this matter set forth arguments with respect to the appropriateness of the modeling protocol approved for SLC's air modeling relating to the project. Specifically, the issue presented concerns SLC's use of meteorological data from the Albany NWS, rather than data obtained on-site from the monitoring tower constructed by SLC on the proposed project site in Greenport.
Resolution of this issue requires analysis and interpretation of United States Environmental Protection Agency ("USEPA") and the DEC guidance on air modeling and the language in that guidance that expresses a preference for on-site data, if such data is available. That guidance, in relevant part, provides:
a. Five years of representative meteorological data should be used when estimating concentrations with an air quality model. Consecutive years from the most recent, readily available 5-year period are preferred. The meteorological data may be data collected either onsite or at the nearest National Weather Service (NWS) station. If the source is large..., the use of 5 years of NWS meteorological data or at least 1 year of site-specific data is required. b. If one year or more, up to five years, of site-specific data is available, these data are preferred for use in air quality analyses. Such data should have been subjected to quality assurance procedures.
USEPA's Guidelines on Air Quality Monitoring, 40 CFR Part 51, Appendix W, at Section 220.127.116.11; DEC Air Guide 26, NYSDEC Guidelines on Modeling Procedures for Source Impact Analyses (rev'd Dec. 9, 1996), incorporating the approach contained in USEPA's Air Guidance document.
The ALJs ruled that the air modeling conducted by the Applicant using off-site versus on-site meteorological data to be an appropriate issue for adjudication based, in part, upon their interpretation of this language.(4) At the issues conference and in their briefs, Staff and SLC have argued the appropriateness of using the Albany data over that taken at the SLC site, citing to the guidance and Staff's (and USEPA's) approval of using the Albany meteorological data for air dispersion modeling purposes. Additionally, both criticize the intervenors' offer of proof based upon unvalidated data, and SLC argues that there is no legal basis to adjudicate this issue. Conversely, FOH argues the appropriateness of using the on-site meteorological data collected by the Applicant for the required air permit modeling, claiming that their consultant has demonstrated that there are considerable differences in the speed and direction of wind patterns revealed in the on-site versus the off-site data and that these differences could affect the conclusions derived from SLC's modeling. FOH further argues that these differences could result in the underestimation of the impacts of pollutants from the proposed facility.
The clear language of the federal and state guidance documents does not require that site specific or on-site data be used instead of NWS data in air modeling applications. Instead, as the ALJs accurately noted, the guidelines establish a preference for on-site data when it is available. What the ALJs failed to recognize is that the guidelines are applied at the time the modeling protocol is approved, and not after the protocol has been approved by the Department. The guidelines expressly state that on-site data is preferred only if on-site data is available. In the absence of available on-site data, the guidelines direct that five years of representative meteorological data be used from the nearest National Weather Service station. In the present case, on-site data was not available at the time the modeling protocol was approved by Department staff.(5) Given the unavailability of on-site data, SLC did precisely what the guidelines require: it used the Albany NWS meteorological data.
In effect, the ALJs' ruling would have an applicant re-model the impacts from a facility if on-site data becomes available after a modeling protocol has been accepted by the Department, and the modeling undertaken by an applicant based upon that approval, even where the modeling is in full compliance with Department and USEPA guidance. Such an interpretation is neither supported by the guidelines, nor practical. Modeling represents a significant expenditure in both applicant and Department resources and makes up a significant part of an application for a major facility. Applicants spend a considerable amount of time fulfilling modeling requirements and complying with approved protocols. Indeed, in the present case, the review and approval of the modeling protocol took many months.
Based upon the express language of the modeling guidelines and the unavailability of the site-specific data, therefore, the failure of the Applicant to use on-site data in its modeling is not a valid basis to adjudicate the adequacy of the air dispersion modeling conducted by SLC.
Notwithstanding the fact that SLC was not required to collect on-site data, approximately one year of data collected from the proposed project site was ultimately provided to FOH and was reviewed by their consultant.(6) FOH's consultant reworked the raw, unvalidated data and arrived at different results from SLC. Namely, FOH alleges that its modeling revealed that the proposed source was likely to produce impacts above the particulate matter PSD increment.(7) Based in part on this offer of proof, the ALJs determined that adjudication was required on the accuracy of the air dispersion modeling regarding particulate emissions. Ruling at 14 and 18.
However, Significantly, FOH's offer of proof failed to challenge the validity of SLC's modeling using the approved models. Given my determination that on-site data was not required to be used by SLC in its air modeling relating to the proposed project, the intervenors' offer of proof related to the on-site data fails to raise doubts about SLC's ability to meet regulatory requirements. Further, the models used by SLC are conservative and overestimate a project's likely impacts. As no such impacts were found using these models, concerns related to air quality based upon improper modeling are unfounded.
Finally, I find FOH's offer of proof to be insufficient based on its inherent unreliability. In fact, the ALJs' ruling noted the valid criticisms raised by SLC and Staff related to the report prepared by FOH's consultant. These problems included the inability to determine whether the modeling results were accurate since the data was not validated, as well as errors relating to wind direction relied upon by the FOH's consultant in its initial report and necessitating a correction of that report. These problems with the offer of proof, cited by the ALJs, raise doubt about the reliability of the offer of proof by the intervenors such that a determination of adjudicability cannot stand. Additionally, the Department reports discussing the problems with the analysis and theories presented by FOH, and supporting the modeling undertaken by SLC, sufficiently supports a determination that there is no reason to inquire further.(8)
The intervenors have simply failed to provide a sufficient offer of proof to demonstrate why the on-site data is more appropriate in this case. See Matter of Ramapo Energy Limited Partnership, Interim Decision of the Commissioner, July 13, 2001. As such, the ALJs determination to adjudicate air modeling as discussed in their ruling is overruled.
Emission Reduction Credits
The proposed project is located in the Northeastern Ozone Transport Region(9) and is therefore subject to the provisions of 6 NYCRR §231-2.12 (Table 2) for emission reduction credit ratios and thresholds for volatile organic compounds ("VOCs") and nitrogen oxide ("NOx"), precursors of ozone. As the proposed plant will emit these pollutants, 6 NYCRR § 231-2.4 requires that emission reduction credits ("ERCs") be obtained by SLC for each of these pollutants at the rate of 1.5 to 1.0.(10) The SLC application materials report that 149 tons of VOCs and 4740 tons of NOx will be offset in accordance with this regulatory requirement. A condition in the draft permit requires that the source and amount of these credits be identified prior to permit issuance. It is presently expected that most of the ERCs will be secured from the closure of SLC's existing Catskill facility.
The ALJs ruled that the identification of the ERC sources is not an issue for adjudication: the sources identified by SLC and approved by Staff, in accordance with 6 NYCRR § 231-2.4, will not be adjudicated in this proceeding. In spite of this determination, the ALJs required SLC to report on the identity of the sources and the quantities to be obtained within sixty (60) days from the date of their ruling. SLC has stipulated that its Catskill operation will be shut-down prior to the new plant's operation or 'first clinker' production. See Tr. 107. The ALJs agreed that this stipulation resolved any SEQRA concerns raised by FOH that would be interrelated with the timing of the identification of the ERCs. Ruling at 19.
Having found the matter not to be adjudicable, it appears that the ALJs primarily had process concerns in requiring the Applicant to identify the ERCs, namely ensuring adequate notice to the parties and promoting efficiency in the process. However, the ALJs' direction to the Applicant to identify the ERCs related to the proposed project runs contrary to the plain reading of the regulations. ERCs need to be identified prior to final permit issuance. 6 NYCRR § 231-2.4(b). The regulation also allows a change in the identification of the ERCs just prior to operations with another public notice. See, Sedefian, Tr. 112. I find that the existing regulatory process provided in the Part 231 regulations binds the Department to a course of action consistent with the express language in the regulations. Accordingly, I reverse the ALJs' direction to provide the additional ERCs information as part of the issues conference. Without the ERCs, SLC cannot operate its new facility. Consistent with the provisions in the regulation, the public will be provided adequate notice of the ERCs for this project.
Air Pollution Impacts to Historic Resources
The intervenors maintain that the pollutants emitted by SLC's proposed project will cause damage to the structures and vegetation at Olana, a State historic site, National Historic Landmark and home of painter Frederick Church. Olana is three miles northwest of the proposed plant. TOP retained a chemist with over thirty years experience in architectural conservation who claims that the sulfur dioxide and nitrogen oxide from the plant will erode the masonry, copper roofing and lead materials of Olana. The ALJs ruled that given the contentions by TOP's expert that the SLC Greenport emissions will cause deterioration of the main house at Olana based upon the constituents of the house's structure and the nature of the pollutants, this omission must be addressed by supplementation of the record. The ALJs based their reasoning on the authority under SEQRA to minimize adverse environmental impacts.
The ALJs' ruling requiring supplementation of the record with respect to potential impacts to Olana was not appealed by SLC.(11) As such, the ALJs' ruling will not be disturbed. However, contrary to the suggestion of the ALJs, this supplementation of the record is directed to occur in the context of the adjudicatory process rather than holding a separate issues conference to review the information provided by SLC. See Matter of Jointa Galusha, LLC., Interim Decision of the Commissioner, May 7, 2002. Finally, although HVPC has appealed the ALJs ruling to allow them to present evidence of impacts from air pollution to other historic resources in the vicinity, such appeal is denied in the absence of a sufficient offer of proof justifying such additional analysis.
Grandfathering of the Mine
The dispute before me involves the question of whether the mining operation of SLC should continue to receive the "grandfathering" protection afforded by Environmental Conservation Law ("ECL") § 8-0111(5)(a) in light of the Applicant's proposed project to construct a new $300 million cement manufacturing facility and undertake associated product transportation activities, as well as its mining permit modification. ECL § 8-0111(5)(a) excludes certain actions undertaken before SEQRA's effective date from complying with the requirements of SEQRA, subject to certain exceptions.
The subject of the grandfathering debate is SLC's Greenport mine located on property owned by SLC in the Town of Greenport, in Columbia County. The mine is presently operated by SLC and persons contracting with SLC pursuant to a Mined Land Reclamation Law ("MLRL") permit dated March 5, 1999. This permit, which expires in November, 2003, provides for the mining of limestone and shale in a 1,222 "Life of Mine"(12) area on a 1,750 acre parcel owned by SLC. Presently, the mine reportedly operates with an output of approximately 500,000 tons per year.(13) During the current permit term, SLC is authorized to mine 272 acres of the 1,222 acres in the Life of Mine area.
The 2000 draft joint permit(14), which is part of the subject matter of this proceeding(15), contains SLC's proposal to modify its existing mining permit, as well as obtain other approvals from the Department. In that draft permit prepared by the Department, the proposed project, in relevant part, is described as follows:
The construction and operation of a 2.2 million metric tons dry process cement manufacturing facility consisting of a raw mill system, kiln feed blending silo, preheater/precalciner tower, rotary kiln, clinker cooler, finish mill system and associated balance-of-plant systems and facilities.
Modification and continued operation of a 1222 acre Life of Mine limestone and shale mine, for which a previous permit has been issued under Article 23, Title 27 of the Environmental Conservation Law (Mined Land Reclamation), of which the areas outlined below are authorized to be affected during this permit term. The modification includes revised phasing of mining and an increase in the rate of extraction.
The DEIS describes the proposed increase in the extraction rate to be from the 2.0 million tons per year described in the 1990 Mined Land Use Plan ("MLUP") for the mine to 6.7 million tons per year. Proposed changes to the mining permit or MLUP include adding an additional 90 acres to the acreage which may be disturbed during the permit term, the location of the plant within the mine boundaries, changes in the reclamation plan to accommodate the plant and more detailed phasing related to the mining operation.
The Applicant has maintained, with the support of Staff, that the mining aspects of the project are not subject to SEQRA review in that mining operations on the project site have been continuously ongoing for many years prior to the implementation of SEQRA in New York and are therefore grandfathered under the provisions of ECL § 8-0111(5)(a) and 6 NYCRR §617.5(c)(34). The Applicant and Staff also contend that the operations of the mine are exempt from SEQRA review based upon the terms of a 1990 Stipulation and Order on Consent ("Consent Order"), and the provisions set forth in 6 NYCRR §617.5(c)(29) which exempt enforcement proceedings from SEQRA. The intervenors dispute Staff's determination to apply the SEQRA exemption to the mine based upon the proposed activities associated with the construction and operation of the cement plant, and contend that this exemption has resulted in a failure to analyze adverse impacts from the mine.
In their Ruling, the ALJs determined that the Applicant's mining activities were subject to SEQRA review and therefore were no longer subject to grandfathering protection. Finding the issue to be purely a legal question, the ALJs relied primarily upon the "ungrandfathering" provisions set forth in ECL § 8-0111(5)(a)(i) and (ii)(16), as well as their determination that the Applicant's planned increase in the extraction rate at the mine from 2 million tons per year to 6.7 million tons per year would constitute a substantial change in the level of operations at the mine as described by the Court of Appeals in Salmon v. Flacke, 61 N.Y.2d 798 (1984), so as to remove the mine from the grandfathering protections provided by ECL § 8-0111(5)(a). The ALJs also found that the combination of the "mine, the plant, the conveyor and the dock activities made for a significantly different project and those cumulative effects [were] properly the subject of these proceedings." Ruling at 62. The ALJs determined in their Ruling that there were impacts from the mine such as blasting, noise and visual issues which needed further examination through the course of these proceedings as adjudicable issues.(17) See Ruling at 65, 72 and 98.
In making their determination that SEQRA should apply to impacts from the mine, the ALJs also rejected the view of the Applicant and Staff that the regulatory exemption applicable in enforcement proceedings applied in this case and that the consent order exempted the project from SEQRA. The ALJs found that there was new activity which was not the subject of the prior consent order and that the consent order specifically recognized the possible application of SEQRA to the project by virtue of the ungrandfathering provisions set forth in ECL § 8-0111(5)(a)(i) and (ii) and other common law or statutory provisions. Ruling at 61-62.
It is undisputed that mining operations at this site have historically been treated by the Department as grandfathered. Ruling at 61; Applicant's Appeal Brief at 206-207. In fact, the 1990 Consent Order entered into between Staff and SLC memorializes an agreement that the mine would not be subject to SEQRA except where ungrandfathering is otherwise appropriate. Notwithstanding this agreement regarding the general inapplicability of SEQRA to the mine, in cases where there have been modifications to the mining permit SEQRA analysis has been undertaken. See Applicant's Appeal Brief at 207. Similarly, with respect to this proposed mining permit modification, SLC conducted an environmental analysis of certain impacts arising from the mining operations. Nevertheless, SLC resists the application of SEQRA to the mine, contending that all mitigation measures which should be undertaken have already been agreed to by SLC. However, this Decision has found that there are alleged impacts from the proposed project, including potentially the mining operation, which should be examined further in the adjudicatory process. To accomplish the purposes of SEQRA, and consistent with the legislative protections which exempt certain projects from complying with SEQRA, it is necessary to determine whether the mining operation should retain its heretofore exemption from SEQRA in light of the new activities proposed to be undertaken at the mine site.
The decision to subject an activity to SEQRA where that activity has previously been deemed to be excluded or "grandfathered" from the requirements of ECL Article 8 is not undertaken in the absence of significant circumstances justifying such action. In Salmon v. Flacke, supra, the Court of Appeals, in a decision upholding an Appellate Division determination that a solid waste management facility was "grandfathered" stated in dictum that there might be other cases where "there might be proof of change in the level of operation so substantial as to be sufficient to remove an activity from the exclusion clause of ECL § 8-0111(5)(a), notwithstanding that the basis nature of the activity remains unchanged." Salmon v. Flacke, 61 NY2d at 799. The Court of Appeals has not elaborated further on this language. Although a number of Appellate Division decisions have discussed this substantial change test, none have affirmatively decided that a particular project should lose its grandfathering protection based upon the circumstances presented. See, e.g., Matter of Atlantic Cement Company, Inc. v. Williams, 129 A.D.2d 84 (3rd Dept. 1987); Matter of Guptill Holding Corporation v. Williams, 140 A.D.2d 12 (3rd Dept. 1988) and Matter of Fletcher Gravel Co. v. Jorling, 179 A.D.2d 286 (4th Dept. 1992). Only in Matter of Guptill Holding Corporation did the court find the facts were sufficiently in dispute so as to require a hearing on the issue.
In addition to the potential ungrandfathering of a project pursuant to the "substantial change in the level of operation" test described by the Court of Appeals in Salmon v. Flacke, ECL § 8-0111(5)(a) provides that an activity may lose its grandfathering protection in accordance with the provisions set forth in subdivision (i) (ii) of that section. In particular, subdivision (i) authorizes the Commissioner of the Department to ungrandfather an activity either on his or her own initiative or "at the request of any person." ECL § 8-0111(5)(a)(i). Although this provision has been rarely utilized by my predecessors, there are Commissioner Decisions which determined to apply SEQRA to projects which had been previously deemed to be exempt pursuant to ECL § 8-0111(5)(a). See Matter of City of Rochester, Commissioner Decision, June 13, 1978; Matter of Rome-Floyd Residents Association,Commissioner Decision, October 16, 1981 and Matter of Proposed County Office Building and Demolition of Youman House, Commissioner Decision, June 24, 1980.
Thus, while it is clear that stripping projects of such statutory protections must be undertaken cautiously, it is equally clear that the courts, the legislature and previous DEC Commissioners have recognized the importance of applying SEQRA to certain previously excluded projects when warranted. In the present case, I find that based upon the intervenors' offer of proof there is sufficient reason to inquire further with respect to the propriety of applying SEQRA to the mining operation of the Applicant. For example, the noise matters deemed to be adjudicable, as discussed elsewhere in this Decision, certainly should include review and mitigation of mining impacts to the extent the mine is subject to SEQRA.
However, based upon the focus of the proceedings to date, I find that there is an insufficient record established upon which to make a determination that SEQRA should be applied to the mine. At the issues conference, in the papers of the parties and proposed parties to this proceeding, as well as the ALJs' Ruling and the appeals and replies related to that Ruling, the focus of the discussion, both factually and legally has been on the 1990 Consent Order, permit and MLUP, generally, and, in particular, the extraction rate set forth in those project documents. Yet, ECL § 8-0111(5)(a) provides that an activity is exempt to the extent it is "undertaken or approved" prior to the effective date of SEQRA. In the case of mining projects, the effective date for the application of SEQRA is set forth as November 1, 1978 in the SEQRA phased implementation law.ECL § 8-0117(4).(18) Thus, in the proceedings before the ALJs, the appropriate inquiry should have focused on comparing the project as presently proposed, with the activities or permits approved prior to November 1, 1978, rather than on the project described in the 1990 permit and Consent Order.
In light of my finding that a decision-making record for this grandfathering determination must be developed, I direct that this matter be the subject of an adjudicatory hearing before the ALJs, and that such hearing be held as soon as is practicable.(19) The record developed should attempt to resolve the question of whether any or all of SLC's mining activities should be subject to SEQRA based on the modifications to the mining permit and the other activities proposed to take place at the mining site. This inquiry should first focus on the mining permits and activities preceding the November 1, 1978 date in order to develop a record on the scope of the mining operations that existed pre-SEQRA. The proposed mining operation, including the modifications to the mining permit, should next be compared to the pre-SEQRA project, to determine which activities, if any, are not subject to the SEQRA exemption. The hearing record should also discuss the applicability of the potential cumulative effect of mining operations and the other components of SLC's project such as the conveyor, dock, stacks and their associated combined impacts relating to noise and visual matters and whether SEQRA must be applied to both the mine and these other project parts to enable the Department to take the required "hard look" at all adverse environmental impacts and to require permit conditions as necessary to mitigate the potentially adverse environmental impacts. (20) Finally, a record should be developed as to whether the proposed change in the level of operations, from the pre-SEQRA operations to the proposed operations, rise to the level of a substantial change in the level of operations, justifying removing grandfathering protections from the mine.
In making my decision with respect to this issue, support for my determination that there should be a hearing on this matter to develop a factual record can be found in the Matter of Guptill, supra. In that case, the court determined that a hearing was warranted to determine whether SEQRA should be applied to the project based upon the presence of a "sharply disputed factual question." Id. at 17. In the present case the lack of factual information with respect to the activities undertaken or permitted pre-November, 1978 similarly requires that a hearing be held to develop a record to allow for the determination of whether SLC's mine operations are entitled to the exemption from SEQRA under ECL § 8-0111(5)(a). Conversely, I note that I have reviewed the arguments of SLC and Staff concerning the applicability of the 1990 Consent Order to this grandfathering determination and find such arguments are not persuasive. The contention of SLC and Staff that the mine is exempt from SEQRA pursuant to the terms of a 1990 Consent Order ("Consent Order") entered into with DEC and the specific SEQRA exemptions related to enforcement proceedings contained in ECL § 8-0105(5)(i) and 6 NYCRR § 617.5(c)(29) is unavailing. The Consent Order by its terms expressly recognized the possibility that circumstances could exist justifying the application of SEQRA to the project in the future.
Finally, at this time I reserve making a decision as to whether or not I should exercise my authority to ungrandfather the project in accordance with ECL § 8-0111(5)(a)(i). The development of the record on the project and the applicability of the grandfathering exemption will provide me with essential information to make such determination, should the record reveal that the exercise of my discretion would be necessary and appropriate under the facts as developed. I also find that in future cases, a request to ungrandfather a project of activity by any person pursuant to ECL § 8-0111(5)(a)(i) should be forwarded directly to the Commissioner as soon as practicable. Further, I do agree with the Applicant that it was not within the ALJs' authority to make a determination to ungrandfather the mine pursuant to ECL § 8-0111(5)(a)(i), since the authority to "ungrandfather" a project rests solely in the discretion of the Commissioner. In such cases, the matter should be referred to me in the first instance for my determination. Nevertheless, given my determination to now postpone this decision until the development of the record in this matter, I find the ALJs' ruling in this matter to be moot.
The ALJs ruled that the proposed intervenors have raised a substantive and significant issue with respect to noise and that therefore, this issue is to be adjudicated. The Applicant has maintained that since the local governing bodies, the Town of Greenport and the City of Hudson, had in effect noise ordinances with numerical noise limits(21) that would apply to the project, such ordinances would preempt application of any other statutory or regulatory standards including adherence to DEC's Noise Policy.(22) The Applicant has agreed to adhere to the standards imposed by the Town and the City, provided such standards are uniformly and fairly applied. Friends of Hudson (FOH) argues that the City and Town's 70 dB at the property line standard is not reflective of existing ambient conditions in surrounding residential areas and is not a substitution for a determination of whether adverse noise impacts have been fully mitigated under SEQRA.
The Applicant's analysis of noise impacts is based on the Equivalent Sound Level or "Leq" which integrates fluctuating sound levels over a period of time to express them as a steady state sound. DEIS at 15.1. The other method of expressing sound pressure levels described in DEC's Noise Policy and favored by the proposed intervenors, is the L90 sound pressure designation which in effect describes through the use of the numerical subscript the percentage of time a particular noise level is exceeded. Thus, an L90 of 70 dB(A) means that the limit of 70 dB(A) is exceeded 90% of the time for which the measurement was taken. The Applicant and Staff maintain that DEC's Noise Policy expresses no preference for either method of describing the noise level and that there is no regulatory criteria requiring that ambient noise levels be calculated using a L90 descriptor. The Coalition and FOH had maintained that the Leq measurement was inappropriate for use by the Applicant because the time-weighted limit inherent in the Leq measurement would allow exceedances of the 70 dB level imposed by the Town and City.
The ALJs, in determining that noise is an adjudicable issue, found that the use of the Leq as the standard of measurement to establish ambient noise levels was an added factor raising doubt about the sufficiency of the Applicant's noise analysis. In their appeals of the ALJs' ruling, both the Applicant and Staff argued that the Leq measurement of noise levels was appropriate in this case. SLC argued that there was no regulatory criteria requiring the use of the L90 descriptor; that DEC's noise policy expressed no preference for the L90 as opposed to the Leq sound descriptor and that Staff had determined that the Leq measurement was appropriate for Applicant's noise analysis. Staff maintains that the proposed intervenors have failed to show that the use of the L90 measurement of ambient noise would result in any significant difference in ambient conditions as compared to the method employed by the Applicant.
The intervenors also raised other issues that cast doubt, in the opinion of the ALJs, on SLC's noise analysis. These include the placement of noise receptors and the selection of Saturday instead of Sunday to take readings of ambient noise conditions. The Applicant has agreed, and the draft permit provides, that increases to ambient sound levels from the project would not exceed 10 dB(A) during daytime operations (6:00 A.M. to 10:00 P.M.) and 5 dB(A) during nighttime operations (10:00 P.M. to 6:00 A.M.). The intervenors have maintained that the Applicant's noise analysis is flawed because SLC took readings at times and in locations that resulted in inflated ambient noise levels. Also, even assuming that ambient noise readings were properly made, intervenors have pointed out that the noise limit increases allowed under the permit are too high and that the definition of daytime operations is unreasonable. Under DEC's Noise Policy sound pressure increases of 5-10 dB were considered "intrusive" and increases of 10 dB were considered to result in a "doubling" of sound pressure levels and deserved "consideration of avoidance and mitigation measures in most cases."
Finally, the ALJs ruled that sufficient doubt had been raised by the proposed intervenors concerning SLC's mitigation proposals. Even though the Applicant maintained that the Town's and City's 70 dB(A) property line limitation was the sole standard it had to comply with, the Applicant and Staff had developed permit conditions to mitigate noise impacts on nearby sensitive receptors. Moreover, Staff had directed SLC to develop a "Best Management Practices" plan (the "BMP plan") for effectively reducing noise from all aspects of the project. The Applicant has agreed to provide a BMP plan but states that the authority of Staff to require it is "questionable" given the Applicant's agreement to comply with Town and City standards. Moreover, SLC contends that the intervenors have failed to identify a statutory or regulatory criteria requiring that such BMP plan be part of the DEIS. However, FOH argues that DEC's Noise Policy at page 22 expressly provides for the inclusion of a BMP plan as part of the noise analysis of the DEIS where significant adverse noise effects on receptors may or will occur. FOH states that development of the BMP plan at some later point will allow the plan to escape public scrutiny and comment.
The ALJs are clearly correct in their assertion that noise is an aspect of the environment subject to review under SEQRA and that substantial increases in existing noise levels is indicative of a significant, adverse impact on the environment. 6 NYCRR § 617.7(c)(1)(i). For the reasons stated below, I determine that the noise issues discussed in the Ruling are substantive and significant and therefore I uphold the ALJs' Ruling that noise issues are to be adjudicated.
I do not accept the Applicant's contention that adherence to a local standard such as the City's and Town's 70 dB(A) property line limitation is preemptive of compliance with other applicable statutory or regulatory criteria including, and especially, SEQRA. While the Applicant is correct in its assertion that SEQRA cannot be used to bypass duly enacted local ordinances, there is no suggestion by the intervenors or the ALJs that SEQRA is to be used for such purpose. Indeed, DEC's Noise Policy expressly provides that the policy does not supercede any local noise ordinances or regulations(23). However, the identification of noise impacts and an open analysis of the best way to mitigate such impacts is a duty of the Applicant under SEQRA, which is independent of its duty to comply with any local standards. This obligation is not diminished in this case because of the existence of a local, independent standard with which SLC must comply.
I also disagree with the Applicant's contention that it would be appropriate to prepare its BMP plan at some indefinite time in the future. Therefore, I find that the plan should be prepared now and be considered as part of the DEIS. In this case, the Applicant has proposed permit conditions that would allow for daytime increases of 10 dB(A) and nighttime increases of 5 dB(A). As observed above, under DEC's Noise Policy sound pressure increases of 5-10 dB were considered "intrusive" and increases of 10 dB were considered to result in a "doubling" of sound pressure levels and "deserves consideration of avoidance and mitigation measures in most cases." DEC's Noise Policy provides for three levels of noise impact evaluation, the third of which involves mitigation efforts under the Best Management Practices concept when significant noise effects may or will occur. That threshold that has been reached in this case. Accordingly, I direct that SLC prepare and serve on the parties and the ALJs its BMP plan within forty-five days of the issuance of this Interim Decision so that evaluation of the Applicant's mitigation plan may be utilized by the ALJs and the contending parties in the adjudicatory process and be part of the record in making a final decision with respect to issuing permits for the proposed project.
The other issues regarding the Applicant's noise analysis propounded by the intervenors and discussed above all contribute to a doubt about SLC's ability to comply with statutory or regulatory standards(24) applicable to its project and lead one to require further inquiry. Each of these issues will be part of the evaluation of noise matters in the adjudicatory process with respect to the proposed project
The ALJs, in evaluating the Applicant's analysis of traffic impacts and the offer of proof contending that such analysis was insufficient, ruled that issues regarding traffic impacts need not be adjudicated. The ALJs based their determination on the fact that the analysis contained in SLC's DEIS was performed in accordance with the Highway Capacity Manual (HCM) published by the Transportation Research Board and that the methodology utilized by the Applicant demonstrated there would not be any significant changes in traffic service and that no intersection would have a Level of Service (LOS) rating of less than "C" during peak hours.(25) Moreover, they noted that the agency with primary responsibility for traffic matters, the New York State Department of Transportation (DOT), concluded that the Applicant's analysis was not incorrect. The ALJs rejected the testimony of the Coalition's expert who would have evaluated traffic impacts in a different manner, since the testimony did not demonstrate that the Applicant performed the analysis incorrectly.
Having found the matter to not be adjudicable, the ALJs nevertheless directed that Staff include a permit condition in the Applicant's permit limiting truck traffic from the project site to 120 truck trips per day. The ALJs based their decision to require a permit condition on the concerns raised by FOH related to the failure of the Applicant to have a contingency plan in the event of the discontinuance of its product to be transported by barge due to the mechanical failure of the conveyor system or ice conditions preventing the passage of barges on the Hudson River. While FOH did not fault the methodology of the Applicant in its analysis of traffic impacts, it did note the absence of a contingency plan and the significance of that omission in light of the Applicant's plan to transport eighty percent of its product by its conveyor to its loading dock and then by barge. The ALJs devised the proposed permit condition based upon the Applicant's traffic analysis in the DEIS, which estimated that 120 truck trips per day would occur.
The Applicant objects to the imposition of such a permit condition, arguing on its appeal that while the Department has the authority to impose permit conditions, it may do so only where it has jurisdiction over the subject matter of the proposed permit condition and where the permit condition is premised on mitigating an adverse environmental condition. In the Applicant's view, the Department does not have jurisdiction over traffic matters and, even if it did, there has been no showing by the intervenors of any adverse environmental conditions regarding traffic.
While the Department has routinely deferred to the jurisdiction of other agencies with respect to matters within the area of expertise of such agencies(26), it has frequently adjudicated traffic issues where traffic conditions resulted in environmental impacts. See Matter of Onondaga Landfill Systems, Interim Decision of the Commissioner, August 31, 1979; Matter of Pyramid Crossgates Co., Interim Decision of the Commissioner, September 18, 1981; Matter of Bonded Concrete, Interim Decision of the Commissioner, April 9, 1984. In this case, the noise and other impacts associated with truck traffic clearly present issues going beyond concerns of traffic design and efficiency and are not only within the purview of the Department as environmental issues, but clearly the responsibility of the Department, as lead agency. Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215 (4th Dept. 1980). Such impacts would be significantly exacerbated by any substantial increase in traffic occasioned by a breakdown of the conveyor-barge transport system as foreseen by FOH or even by unforeseen increases resulting from increased demand for product to local markets. Accordingly, I disagree with the Applicant's contention that the Department lacks jurisdiction over traffic matters.
However, I cannot agree with the ALJs' recommended solution to the concerns of FOH regarding the potential breakdown of the conveyor-barge transport system. While I do find the concerns raised by FOH with respect to the omission of a contingency plan regarding the discontinuance of the barge to transport the Applicant's product are substantive and significant, I do not find the proposed permit condition suggested by the ALJs reasonably related to the concerns identified. It is doubtful that the Applicant had any intention to be limited to 120 truck trips a day when it used that number in performing its traffic analysis in the DEIS. Moreover, on this record, it is impossible for me to determine the extent to which truck traffic might be increased without experiencing an attendant significant change in level of service or creating impacts which are unacceptable. Absent the development of information with respect to these impacts in the adjudicatory process, any attempt to determine a numerical limit of daily truck traffic to be imposed on the Applicant is not reasonable. Accordingly, if an agreement cannot be reached with respect to the appropriate permit language to resolve this issue as narrowly defined herein, I direct that this matter be adjudicated to examine the need for a contingency plan and the imposition of a permit condition reasonably related to concerns identified in the hearing process.
The ALJs, in their ruling related to proposed economic impact issues, made two determinations which were appealed. The ALJs found that economic impacts were adjudicable "during the course of the adjudicatory hearing, and in the context of environmental impacts that have been determined to be adjudicable." Ruling at 122. They also found an adjudicable issue relating to the benefits and need for the project, given the likelihood of adverse visual impacts relating to the project. Id.
The Applicant has appealed the rulings of the ALJs with respect to the adjudicability of economic issues, contending that economic issues should only be considered where "there is a significant net adverse environmental impact which can be weighed against countervailing socio-economic factors" or where a project applicant argues that the project's benefits justify less than full mitigation. Applicant Appeal Brief at 196-197. SLC has proposed that since in the instant case, adverse environmental impacts have been mitigated or offset to the maximum extent practicable leaving no "significant net residual impact," economics should not be taken into consideration. Additionally, the Applicant suggests that in the event that economic impacts should be considered under SEQRA, the DEIS contains sufficient information to allow the balancing of environmental impacts with "social, economic and other essential considerations"as mandated by ECL §8-0109(8).(27) Finally, the Applicant states that the offers of proof failed to present an adjudicable issue since the statements by the intervenors' experts, Robert Pauls for FOH and John Shapiro for HVPC, were "completely conclusory and without foundation or analysis."
The intervenors argue that the issue of economic benefits and drawbacks of the project should be adjudicated as they believe that it is unlikely that adverse environmental impacts will be fully avoided or mitigated and it is therefore likely that such impacts will need to be weighed against "social, economic and other essential considerations." 6 NYCRR §617.11(d). The intervenors maintain that they need the opportunity to complete the record on socio-economic impacts through the adjudicatory process, and oppose SLC's argument that the adjudication of socio-economic issues be deferred until there is a finding of residual adverse environmental impacts.
Based upon clearly defined principles related to the review of economic impacts under SEQRA, the Applicant's arguments that socio-economic issues may not be considered as part of the adjudication of environmental issues, are hereby rejected. While it is settled that purely economic impacts are not relevant under SEQRA, it is also certain that it is appropriate to consider the economic implications of environmental impacts. See e.g., Matter of Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989 (Commissioner determined that the reduction of property values, considered in isolation, cannot be considered an environmental impact, even under the broad definition of 'environment' under ECL Article 8) and Wal-Mart Stores, Inc. v. Planning Bd. of the Town of North Elba, 238 A.D.2d 93 (3d Dept. 1998) (Court upheld consideration of the economic impact of the store in tandem with a community character impact issue.). Further, the propriety of reviewing economic impacts in association with environmental issues has additional support in accordance with the provisions set forth in ECL § 8-0113(2)(b), which directs the Department, through its regulations, to include criteria to take economic and social factors into account when determining the significance of an environmental impact. Moreover, Commissioner Decisions uphold the potential adjudicability of environmental/socio-economic issues. See, e.g., Sithe/Independent Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992.
SLC's arguments with respect to the ALJs' ruling related to the adjudicability of the need and benefits for the project are more persuasive. It is not disputed that the socio-economic benefits of the project must be balanced against the remaining unmitigated adverse impacts of the project in making decisions on proposed actions.(28) Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215, 223(4th Dept. 1980). ECL § 8-0109(1) directs agencies in the preparation of environmental impact statements under SEQRA to "act and choose alternatives which, consistent with social, economic and other essential considerations ...minimize or avoid adverse environmental effects....". Additionally, where an agency decides to carry out or approve an action, it must make a finding that "consistent with social, economic and other essential considerations" adverse environmental effects will be minimized or avoided. ECL § 8-0109(8). Finally, by Departmental regulation, the duties imposed on the lead agency in the decision making process include the requirement of a certification that "consistent with social, economic and other essential considerations" the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable. 6 NYCRR §617.11(d)(5). Commissioner Decisions refer to this balancing necessary to be undertaken as part of the decision-making process for projects. See e.g., Matter of Pyramid Crossgates Co., Decision of the Commissioner, November 28, 1980; Matter of Wilmorite, Inc., Decision of the Commissioner, May, 18, 1982; Matter of Pyramid Co. of Utica, Decision of the Commissioner, June 22, 1979.
While it is clear that the Department must undertake this balancing in making permitting decisions where unmitigated adverse impacts remain, the adjudication of social and economic considerations that are part of this balancing process have rarely been the subject of previous Commissioners Decisions. In Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, April 9, 1984, the Commissioner in determining the proposed adjudicability of the need for the project, found that although "need" was a proper subject for adjudication, there was an inadequate offer of proof to require adjudication of the issue in that case. (29) Other Commissioner Decisions have determined that the need or the benefits of a project were not a proper subject for adjudication where the project applicants did not argue that the benefits of the project justified failing to mitigate certain impacts. See Tompkins County Bd. of Representatives, Interim Decision of the Commissioner, August 2, 1990; Red Wing Properties, supra; Matter of Seaboard Contracting & Material, Inc., Interim Decision of the Commissioner, June 5, 1990.
Although I find that the need and the benefits of the project may be a proper issue for adjudication, this issue is unlike other issues that are generally reviewed and determined to be adjudicable at the issues conference stage since the necessity of adjudicating project need and benefits will not be made until later in the project decision-making process when it is determined that unmitigated impacts remain. Since the adjudication of project need and benefits is only relevant where there are unmitigated adverse impacts which are determined to remain after adjudication of those impacts has occurred, I find that it is premature to adjudicate such issues in the first instance.(30) Rather, in the interests of judicial economy, it is appropriate to defer the adjudication of need and benefits, if such are otherwise determined to be adjudicable in accordance with the substantive and significant requirements of Part 624, until the determination is made that the balancing of need and unmitigated adverse impacts is required.
However, I find in the present case, the intervenors have not offered any proof sufficient to warrant adjudication of the need and benefits of the project. The intervenors' "proof" consists of conclusory statements generally contending that the economic benefits touted by SLC are overstated or that there will be negative economic impacts resulting from the project. They do not offer information which would aid in the balancing required by the Department in making decisions with respect to the proposed project, nor do they raise any issues which would require further inquiry. Instead, the debate about the number of jobs gained or lost by the project, as well as statements about the potential negative impact on tourism, without analysis or documentation do not satisfy the requirements for presenting a substantive and significant issue. Moreover, the ALJs rationale for adjudicating this issue fails to identify any proof offered by the intervenors which satisfy the substantive and significant requirements.
Instead, based upon the record before me I find that the information in the DEIS, such as the market for the product to be produced by SLC, together with the comments of the intervenors and the required Responsiveness Summary that will be prepared in response to such comments, will provide me with the requisite information to undertake the balancing required by SEQRA, should it be determined at some point in the future that unmitigated impacts remain. As such, the ALJs determination that the need and benefits of the project be adjudicated is hereby reversed.
Alternatives Analysis Under SEQRA
The intervenors contend that the Applicant has failed to perform an adequate analysis of alternatives required to be included in the DEIS pursuant to 6 NYCRR § 617.9(b)(5)(v). SEQRA regulations provide that an applicant must include in its DEIS "a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor." 6 NYCRR § 617.9(b)(5)(v). (Emphasis added). Among the alternatives suggested by the regulation for consideration are sites, technology, scale or magnitude, design, time, use and types of action. The regulation limits consideration of "sites" for a private applicant lacking the powers of eminent domain to sites owned or under option to such private applicant. In addition to the proposed project site in the Town of Greenport, Columbia County (east of the Hudson River), the Applicant owns an existing mine site in the Town of Catskill, Greene County which is across the Hudson River from the proposed project site. Ownership of the Catskill site by the Applicant makes the Catskill site an appropriate subject of an alternative analysis.
The intervenors have argued that the alternatives analysis contained in the Applicant's DEIS is conclusory and inadequate with respect not only to the "sites" analysis but also aspects of the project at the Greenport site such as size and location of the proposed plant. The ALJs, in their Ruling, found that no adjudicable issue was raised by the intervenors concerning the size of the plant because there was no showing that a smaller plant would result in any net environmental benefit to the project. Moreover, they found the information regarding alternative material transport methods and the exploration of the "no-action" alternative to be adequate.
Notwithstanding the ALJs' determination that adjudication of the Catskill location as an alternative site was "not warranted" given the information already in the DEIS, as well as the additional detail provided at the issues conference, they directed the Applicant to furnish additional information concerning the Catskill site with respect to limestone reserves and cost comparison data. Ruling at 128. This information was to be made available to the parties for comment and, based on any such comment, the ALJs were to decide whether this issue was to be adjudicated.
The Applicant has refused to provide such additional information as directed by the ALJs and argues on its appeal that the information provided in the DEIS and through the testimony of its expert, Mr. Lochbrunner at the issues conference, offer sufficient detail to allow for the "comparative assessment" of the Catskill alternative site as required by 6 § NYCRR 617.9(b)(5). Further, SLC argues that the existing record adequately demonstrates that there exist many compelling reasons why it was justified in rejecting the Catskill location as its project site. These reasons generally relate to SLC's "business judgment/economic concerns" as well as the lack of a net environmental benefit in selecting the Catskill site as the project location. Several of the reasons particularized in the DEIS include the necessity of dredging and filling in the area of the Catskill dock and expanding the Catskill dock expansion and in an area of noted ecological sensitivity (i.e., State designated significant habitats to the north and south of the Catskill jetty); the necessity of constructing a conveyor to the Greenport facility dock for transporting limestone by barge to the Catskill dock; the limited limestone reserves at the Catskill location thus necessitating the transport of great quantities of such raw material across the river by conveyor-barge transport; the anticipated disruption of cement production for two years pending demolition of the existing Catskill facility and replacement with a larger plant; and, significantly, the increased visibility of the new plant at the Catskill location from Olana, the Rip Van Winkle Bridge and other sensitive resources.
I concur with the ALJs that there is no justification to adjudicate alternatives based upon the record before me. In particular, adjudication of the Catskill site is not warranted, and no further information is necessary to make that determination. The Applicant has provided sufficient and detailed information in the record for me to conclude that further review of the Catskill site would not aid in the decision-making process, in particular, the undisputed conclusion that the visual impacts of the Catskill site on Olana would be greater, as well as the lack of any demonstrable net environmental benefit associated with the Catskill site. Accordingly, I determine that the Applicant need not provide any further information regarding the Catskill site or with respect to any other possible alternatives and this issue shall not be adjudicated.
Record of Compliance
The Department's Record of Compliance Enforcement Guidance Memorandum ("ROCEGM"), first issued in 1991 and revised in 1993, sets forth the Department's policy and guidance to be used to evaluate an applicant's compliance history before a permit is issued or renewed. The guidance is a policy document with direction to Staff on how to properly evaluate information that will be taken into account during a permit review. The policy emphasizes that "the procedures and guidelines for review must be applied on a case by case basis to determine the appropriate Department position in response to the submission of permit applications." ROCEGM, Section I at 2. Although the policy applies to all permit applicants, the requirement to fill out the form indicated in the policy is not required in every instance, provided the applicant is an exclusively local company (ie., located in only one region) and its compliance history is of a "fixed, longstanding nature." Id., Section VII at 8. Information about related corporate entities may be required to be examined where there is evidence of a "degree of control which the parent or related entity exercises over the permittee/applicant." Matter of Waste Management of New York, LLC, LP, Interim Decision of the Commissioner, May 15, 2000 at 8; ROCEGM, Section IV at 5.
The ALJs determined that although this issue was not to be adjudicated based upon a lack of an offer of proof by the intervenors, SLC was directed to complete a record of compliance form for Staff's review, including specifically an analysis of the relationship of SLC to Holnam, an alleged entity related to SLC. The ALJs based their determination on the failure of Staff to investigate this relationship, as well as the nature of the compliance violations proffered by FOH both at the Applicant's Catskill facility, as well as at Holnam's various facilities. Ruling at 133.
In its appeal, FOH reiterated its argument that SLC should be required to submit information about its affiliate corporations since the various administrative consent orders and newspaper articles FOH offered as proof related to the question of SLC's fitness, clearly bringing into question whether SLC should be granted a permit on the terms existing in the draft permit.
SLCs strenuously objects to supplying the information required by the ALJs, arguing Holnam has no substantial influence over SLC, that only the Catskill facility's compliance history is relevant to this proceeding, and that the ALJs were correct in finding that FOH failed to meet its burden of proof.
Past Commissioner decisions have articulated clear guidance on the proper analysis to be followed in determining the fitness of permit applicants. In, Matter of Waste Management of New York, supra, the Commissioner discussed the two inquiries particularly relevant to such a determination:
"... The threshold focus should be on the applicant with the principal inquiry being whether the actual compliance history of the permittee or applicant warrants permit denial or the imposition of special conditions....
In the event that the compliance history objections concern an entity related to the applicant such as a parent company or affiliate, the next inquiry is whether such entity has held a "substantial interest" in the applicant... or has acted as a "high managerial agent or director" in the applicant... ( citing to the ROCEGM at 3.). If the related entity has held a "substantial interest" or maintained a "high managerial relationship" in the applicant, the query then becomes whether the interest or relationship amounts to a "substantial influence" over the management of the applicant's site (citations omitted).
Matter of Waste Management of New York, supra at 7-8. Intervernors alleging that such "substantial influence" exists must provide a sufficient offer of proof in support of such allegations in order to require further review. Matter of Athens Generating Company, LP, Interim Decision of the Commissioner, June 2, 2000at 22.
In the present case, Staff correctly centered its review in the first instance on the Applicant's record at its Catskill facility. SLC's record of operation, spanning a period of seventeen years exclusively in Region 4, and Staff's long history of regulating SLC's operation of the Catskill plant, supports the determination by Staff that the submission of the record of compliance form by SLC was not warranted.
The violations related to the Catskill plant, relied upon by the ALJs to require further information from SLC, do not rise to a level to call into question Staff's determination in this regard. SLC's compliance history with respect to operation of the Catskill facility shows that there have been six incidents which resulted in penalties ranging from $3,000 to $12, 000 over the course of the past ten years. Of the six violations, the ALJs found the following four justified requiring additional information from SLC: "the 1993 Order on Consent concerning failure to operate air pollution control devices, the February 1997 and April 1998 Orders on Consent regarding the opacity monitor, the June 1997 penalty for failure to install RACT at the cement kiln and the December 1998 penalty for failure to maintain the baghouses." Ruling at 133. These violations, many of which were the result of consent orders where no determination of a violation was made, do not raise sufficient doubt about the Applicant's ability to comply with the applicable statutory or regulatory criteria with respect to the project. See Matter of Athens Generating Company, supra at 24 andMatter of Waste Management of New York, supra,at 9.
Further, as the Ruling properly notes, the record of compliance of an affiliate will not be the subject of an adjudicatory hearing unless an intervening party carries its burden demonstrating that the affiliate substantially controls the compliance decisions or the day-to-day operations of an applicant. The ALJs correctly ruled that FOH's offer of proof, consisting primarily of newspaper articles related to the operations of Holnam and St. Lawrence operations in Canada, as well as the listing of an SLC representative in an annual report as an officer of St. Lawrence Cement Inc. of Canada, was inadequate to demonstrate the requisite substantial control over the Applicant's daily operations or compliance decisions. Ruling at 132.
Additionally, the SLC Appeal on this point provides an adequate reporting and discussion of the relationship between SLC and Holnam and its connection to St. Lawrence Cement, Inc and St. Lawrence Group of Canada, that also persuades me to conclude nothing further needs to be added to this record on this topic.(31) As such, the ALJs ruling that additional information be submitted is reversed.
I have reviewed the remaining appeals to the ALJs' Rulings not specifically addressed here and find no reason to overturn the ALJs' findings on these other matters.
For the reasons stated above, I remand this matter to the ALJs for further proceedings consistent with this First Interim Decision. With respect to the timing of proceedings on such matters, the hearing on the "grandfathering of the mine" issue shall proceed as soon as is practicable, consistent with my Decision herein. All other matters should be advanced to the extent possible during the period prior to the release of my Second Interim Decision, with the exception of the adjudication of any issues which would necessarily be impacted by any SEQRA determination related to the grandfathering issue.
For the New York State Department
of Environmental Conservation
By: Erin M. Crotty, Commissioner
Albany, New York
December 6, 2002
1 6 NYCRR §621.4(g) contains the requirements for a complete air permit application, and incorporates the requirements of the federal PSD regulations at 40 CFR §52.21.
2 Both the CTSCREEN and the ISCST3 models are conservative models that tend to overestimate, sometimes greatly, the predicted impacts of a proposed source. It is undisputed that the results of SLC's CTSCREEN and ISCST3 models indicate that the proposed project would not cause or contribute to a violation of ambient air quality standards and would not exceed any applicable PSD increments.
3 On-site data is required for the more refined complex terrain model (CTDMPLUS) that would be used by SLC in the event the C TSCREEN demonstrated the project would exceed a National Ambient Air Quality Standards ("NAAQS"), a New York State Ambient Air Quality Standards ("NYSAAQS"), or a Prevention of Significant Deterioration ("PSD") increment. SLC Appeal Brief at 17.
4 As part of the rationale for finding this issue to be adjudicable, the ALJs stated that since the "applicable regulatory authority and facts indicate that the use of the on-site meteorological data in the air dispersion modeling would potentially result in a different outcome, specifically for impacts from particulate emissions from SLC's proposed facility." Ruling at 15. They also stated that use of the Albany data "would still appear contrary to what is provided in the federal regulations because of the availability of the on-site data, the length of time the data has been collected, and the ability of the applicant to perform the validation necessary to ensure quality assurance." Id.
5 SLC began collection of the on-site meteorological data in August 1999. Concurrent with the collection of on-site data, the Applicant submitted its air dispersion modeling protocol to Staff in December 1999, relying on the Albany NWS data for its simple terrain model, and including a plan to use the on-site data for the complex terrain model in the event the complex terrain model demonstrated the project would exceed a federal or state ambient air quality standard or a PSD increment. Given that the modeling called for by the approved protocol occurred between December 1999 and August 2000, one year of the on-site data was not available for use by SLC in conducting its air impacts modeling for the project.
6 Although there appears to be a lapse in time related to the provision of the information to the intervenors, the on-site data was requested by the intervenors and was eventually supplied after a discovery demand was made by the intervenors in July 2001. As the intervenors were afforded ample opportunity to contest SLC's air modeling based upon this data, the intervenors suffered no prejudice by any alleged delay in the provision of the information to them. See Ruling at 14.
7 It bears noting that FOH conducted its modeling using only the ISCST3 model, which conservatively predicts impacts on simple terrain surrounding a facility. FOH did not challenge SLC's complex terrain modeling using the CTSCREEN model.
8 Issues Conference ("IC") Exhibits 122 and 168 (reports of DEC Staff person Leon Sedefian) contain a thorough examination of the analysis and arguments by the intervenors related to the on-site data. These reports refute the claims of the intervenors that SLC must use on-site data in its modeling based upon different wind conditions in Albany versus the Greenport site. For example, in IC Exhibit 122, Sedefian states that "... the analysis does not show the claimed 'substantial differences' in wind speeds. In fact, the corrected data supports the finding of representativeness of the Albany Airport data ... for the SLC project. Furthermore, the conclusions reached by all petitioners on the consequences of the differences in wind data, even if one was to exist, are unfounded on both technical and regulatory grounds." IC Exhibit 122 at 1. The report points out that a trained meteorologist looking at the un-validated data and the analysis related to wind speeds undertaken by the intervenors' consultant with that data, "would easily recognize that either there is a problem with the data or the analysis was not properly performed." Id. at 2. The report further refutes the intervenors claims that lower winds at the project site would result in higher impacts and that impacts would maximize in different locations from what was modeled by SLC. The report states that "[n]either of these claims is correct." Id. at 3, and it provides sound reasons in support of this conclusion. In IC Exhibit 166, Sedefian affirms his earlier conclusions with respect to the intervenors' analysis, even in light of the corrected report related to the wind re-analysis.
9 Recognizing the transport of air pollution across state lines that contributes to nonattainment status in many areas, Congress established authority for EPA to establish transport regions. CAA § 176a, 42 USC § 7506a. The purpose of the ozone transport region (OTR) is to assess the degree of air pollution and devise strategies to address mitigation of ozone precursors. CAA § 176b, 42 USC § 7506b. New York is part of an OTR that includes states from Maine to Virginia.
10 See 6 NYCRR §231-2.12, Table 2: Ozone Nonattainment Area and Transport Region Classification for VOC and NOx.
11 The Applicant acknowledged in a March 2002 letter to the ALJs that it had intended to supplement the record on this issue as directed by the ALJs. However, subsequent to the submission of its appeal and reply briefs in this matter, SLC decided it would not supplement the record as directed.
12 The "Life of Mine" area is the total area of land to be mined over the entire period of time that mining is planned to occur at the site. Applicants for Mined Land Reclamation Law permits are required under DEC's "Life of Mine" policy to describe such area as part of the permitting process so that impacts may be identified and mitigated over the entire period the mine is to be in operation. The Life of Mine Area is reduced by setback limits reducing the total area to be mined under the current permit to 1,028.
13 The DEIS sets forth the extraction history of the mine for the period between 1995-2000, with the highest rate of extraction reported for that period being 773,000 tons for the year 1995. The DEIS further describes the peak production period to have occurred between 1950 and 1975 when the extraction rate was estimated to have reached 1.5 million tons per year.
14 The draft joint permit for SLC's proposed project seeks approval to construct and operate the project through a renewal and modification of existing permits, as well as an application for new permits under Article 15, Protection of Water; 6 NYCRR 608, Water Quality Certification; Article 24, Freshwater Wetlands and Article 23, Mined Land Reclamation.
15 Other SLC documents which are the subject of this proceeding include the Draft Environmental Impact Statement, as well as a draft Air Permit, State Pollution Elimination Discharge ("SPDES") permit.
16 The applicable statutory provisions regarding "ungrandfathering" appear in ECL § 8-0111(5)(a)(i), (ii) as follows:
Exclusions. The requirements of subdivision two of section 8-0109 of this article shall not apply to:
a) Actions undertaken or approved prior to the effective date of this article [September 1, 1976], except:
(i) In the case of an action where it is still practicable either to modify the action in such a way as to mitigate potentially adverse environmental effects or to choose a feasible and less environmentally damaging alternative, in which case the commissioner may, at the request of any person or on his own motion, in a particular case, or generally in one or more classes of cases specified in rules and regulations, require the preparation of an environmental impact statement pursuant to this article; or
(ii) In the case of an action where the responsible agency proposes a modification of the action and the modification may result in a significant adverse effect on the on the environment, in which case an environmental impact statement shall be prepared with respect to such modification.
17 An example of inadequately addressed visual impact pointed to by the ALJs, is the removal of Becraft Ridge. Becraft Ridge is a high point in the terrain within the permissible mining area under the 1990 Consent Order. While the Applicant maintains that the visual impacts of the removal of Becraft Ridge are not subject to a SEQRA review since Becraft Ridge was part of the authorized mine, the Applicant did stipulate with Columbia County to maintain the ridge thereby, according to SLC, rendering the issue moot. The ALJs and FOH disagreed since the Applicant had not agreed to have a condition reflecting this agreement in its permit or as part of its MLUP. SLC has now agreed to a permit condition to leave Becraft Mountain intact, on the condition that all approvals for the Project are granted. FOH still finds the agreement to be illusory, because the Applicant has failed to agree to accept maintenance of the Ridge as a permit condition unless all permits are to be granted (FOH Reply Brief at 118) and also because the Applicant's agreement with Columbia County is enforceable only by the County and not enforceable against any entity to which the Applicant transfers the property.
18 I note that there are two Appellate Division, Third Department cases which appear to endorse either a September 1, 1975 or a September 1, 1976 date as the pivotal point in time for the focus of a grandfathering inquiry. Matter of Guptill, supra at 17; Matter of Northeast Solite vs. Flacke, 91 AD2d 57, 60 (3d Dept. 1983). Although September 1, 1976 date is the date on which SEQRA became effective, the court in Matter of Northeast Solite, supra, noted that the Department's responsibilities and authority became effective September 1, 1975 in accordance with ECL § 8-0113. However, this court did not make a determination that the Department's proposed date of November 1, 1978 to review the grandfathering status of the activities in that case was incorrect. In the absence of specific authority to the contrary, I find that November 1, 1978 is a more appropriate date for this review since that is when SEQRA became effective for mining projects.
19 Given the potential ramifications of the determination that the mining operation be subject to SEQRA, including, but not limited to, the potential for additional SEQRA analysis and mitigation on issues deemed to be adjudicable, it is essential that the hearing on this issue be expedited. Therefore, the hearing on this issue should proceed as soon as possible and not wait for the release of my Second Interim Decision in this matter.
20 Although the potential cumulative impacts of the mine and the other components of the proposed project were briefly discussed by the ALJs in their Ruling, this concept was not the focus of the appeals in the case. It should be noted that SLC's interpretation of what comprises the "action" for its proposed project would appear to raise questions with respect to SEQRA principles preventing segmented review of project impacts and the requirement to address cumulative impacts of related projects. See, e.g., Village of Westbury v. Department of Transportation, 75 N.Y. 62 (1989) and Save the Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193 (1987).
21 The City of Hudson and Town of Greenport have similar noise ordinances which impose limitations of 70 dB at the property line. Counsel for the Town of Greenport has indicated that the Town would interpret the reference to "dB" in its ordinance to mean "dB(A)" which signifies a limit of 70 decibels on the "A" weighted decibel scale. The A scale accounts for that portion of the frequency spectrum to which the human ear is most sensitive (between 20 and 20,000 hertz). Also, Counsel stated that the 70 dB(A) property line limitation would be construed to refer to the Equivalent Sound Level or "Leq" based on the standard one-hour average (Leq(1)).
22 Assessing and Mitigating Noise Impacts: Program Policy, Issuance Date: October 6, 2000, Revised: February 2, 2001 ("Noise Policy").
23 Noise Policy at 5.
24 In this case the regulatory standard in question is SEQRA. See Lane Construction Corp. v. Cahill, 270 A.D.2d 609 (3d Dept. 2000).
25 The methodology utilized in the DEIS rates the average delays associated with level of service (LOS) ranging from A to F with LOS A and B indicating good operation conditions and minimal delay, C - greater vehicle stopping but light congestion, D - noticeable congestion, and E and F - poor service.
26 See Matter of Bear Creek Materials Corp., Interim Decision of the Commissioner, October 15, 1984; Matter of L. M. Dalton Corporation, Interim Decision of the Commissioner, November 8, 1988; Matter of Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989.
27 The Applicant provided a copy of its Joint Permit Application to the United States Army Corps of Engineers to the Office of Hearings on July 29, 2002. This submission contains, as Attachment 18, a report by Applicant's consultants, Ernst and Young, entitled "Economic Impact Analysis." The information provided in this report has not yet been commented on by the intervenors. The ALJs can accept comments on this submittal as comments to the DEIS through the course of these proceedings.
28 SLC contends that balancing is required only if there is a "significant net adverse environmental impact" remaining. Applicant's Appeal Brief at 196. However, the express language of the statute directing such balancing states that the balancing occurs when there are any "unmitigated adverse environmental impacts". ECL §8-0109(8).
29 For an example of an ALJ Ruling finding that need is adjudicable since the balancing required by SEQRA may become necessary, see, e.g.,4-C's Development Corporation, ALJ Ruling, February 7, 1996.
30 Although I find that the adjudication of the need and benefits of the project must generally be deferred until it is determined that unmitigated adverse impacts remain, this is not the case where the applicant affirmatively argues that the benefits of the project justify less than full mitigation. Under such circumstances, it is appropriate to adjudicate the benefits of the project in the first instance, assuming that an adequate offer of proof has been made. See Tompkins County, supra; Red Wing, supra; Seaboard, supra.
31 In its appeal, SLC states that SLC is a "wholly-owned subsidiary of StLawrencece Cement, Inc., which is itself a wholly-owned subsidiary of St. Lawrence Group, Inc., a publicly traded Canadian corporation whose shares are traded on the Toronto Stock Exchange. For corporate finance purposes, Holnam is the record owner of approximately 64% of Group's shares. The management of Holnam and Group, however, are completely distinct, and operate independently of one another. No one at the applicant reports to Holnam, nor does Holnam participate in the day-to-day affairs of the applicant in any way."