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Saint Lawrence Cement Company, LLC - Commissioner Ruling, August 5, 2002

Commissioner Ruling, August 5, 2002

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

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 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;
a freshwater wetlands permit pursuant to ECL Article
24 and 6 NYCRR Part 663

by

ST. LAWRENCE CEMENT COMPANY, LLC

Permit Application No. #4-1040-00011/00001

RULING OF THE COMMISSIONER

August 5, 2002

RULING OF THE COMMISSIONER

St. Lawrence Cement Company, LLC, ("SLC") has applied to the Department for various permits to construct and operate a cement manufacturing plant ("Project") in the Town of Greenport and the City of Hudson in Columbia County, New York. As demonstrated by the record presented to me, the Administrative Law Judges ("ALJs") convened a series of lengthy issue conference sessions ("Issues Conference") to define the matters in need of adjudication. Thereafter, the ALJs issued a ruling on party status and the issues to be joined in the hearing on December 7, 2001 ("Issues Ruling"). Appeals from the Issues Ruling are currently pending before me.

While the record of these proceedings formally closed upon the filing of the reply briefs, at the direction of the ALJs in their Issues Ruling, certain additional information in the form of either revised permit conditions or supplemental submissions of information was generated by SLC and Department Staff after the Issues Conference and was thereafter circulated to the Issues Conference participants, collectively referred to herein as the parties ("parties") for their review. These draft permits and additional information(1) ("Post Issues Ruling Information") primarily relate to issues which appear by the language of the Issues Ruling to have been resolved by consensus of the parties.

A fair reading of the Issues Ruling would reasonably suggest that such matters were to be subject to further review, possibly at a subsequent issues conference. (2) Yet, it is clear prior to the issuance of my Interim Decision, that any concerns related to the Post Issues Ruling Information are known by and amongst the parties and that the record has been fully developed with respect to such issues. As such, I find that the goal of administrative efficiency would be best served by deciding all contested matters resulting from the Issues Ruling without convening a second issues conference.

However, I am concerned that parties may have failed to present or preserve arguments that they might otherwise have made with respect to the Issues Ruling, based upon a belief that further review of such issues would take place at a second issues conference. Accordingly, I find that the parties shall be permitted to supplement their appeals if necessary to contest the ALJs rulings where the ALJ directed there be permit changes or supplemental information provided as reflected in what is now the Post Issues Ruling Information. Such supplemental briefs are necessary to complete the record and assist me in reaching a full and fair decision in this matter.

Regardless of the authorization for additional appeals as set forth in this Ruling, I believe that certain matters are presently ripe for review and for the issuance of an interim decision by me. Specifically, it is clear from the record developed thus far that certain of the matters can be analyzed by me without further input from the parties. With respect to those matters, I will issue an Interim Decision in the near future. Other matters, impacted by the provision of Post Issues Ruling Information will be the subject of a second Interim Decision by me, subsequent to the receipt by me of any supplemental appeals of the parties. In deciding to bifurcate the process, I am mindful of the arguments on appeal, both seeking to reverse or affirm the ALJs. Without passing on the concerns raised in the appeals, particularly those raised by SLC with respect to the resolution of these and other issues by the ALJs, my careful review of the Issues Ruling, the appeals thereon, and the application materials, leads me to conclude that bifurcation of the decision-making process is required to fairly and efficiently dispose of all matters before me.

Therefore, I hereby authorize the parties, if they so choose, to submit supplemental briefs to appeal those rulings that were also the subject of the Post Issues Ruling Information. Only those matters specifically authorized by this Ruling will supplement the existing record before me and will be considered by me in reaching my determinations in my second Interim Decision. All concerns related to the Post Issues Ruling Information, not rising to the standard for an adjudicable issue, may be otherwise treated through a facilitated agreement process with the assistance of the ALJs, ie. the ALJs may avail themselves to assisting the parties in settlement of conflicting matters. I direct that all appeals be received by my office and served on the parties not later than 4:00 PM, August 19 and that replies be received by my office and served on the parties not later than 4:00 PM, August 30. Appeal and reply briefs must be limited to no more than fifteen pages, 8.5" by 11", single sided, double-spaced in a font not smaller than 12 point type with one inch margins on all sides.

For the New York State Department
of Environmental Conservation
____________/s/__________________
By: Erin M. Crotty, Commissioner

Albany, New York
August 5, 2002

1 The draft permits which were revised and circulated to the parties in March of this year, subsequent to the close of the Issues Conference record, are as follows: (1) General Consolidated Permit incorporating Protection of Waters, Water Quality Certification, Mined Land Reclamation, Freshwater Wetlands; (2) SPDES Permit; (3) Air State Facility Permit and Staff's writing describing its concurrence on PM10 emission rates, CO emission rate (compliance with Part 257-4) and SO2 emissions/compliance with sulfur limits in fuel (Part 225). The additional information also provided to the parties included the: (1) January 2002 Coastal Zone Consistency Determination; (2) Revised Fugitive Dust Management Plan; (3)Dock Impoundment Design and (4) Pied-Billed Grebe Survey.

2 The following two instances are illustrative of the various indications present in the Issues Ruling which demonstrate the possibility that there would be an opportunity for further comment on issues in the context of these proceedings. On pages 13-14 of the Issues Ruling the ALJs stated:"As a general note, for a number of the matters involving the draft air permit, there remains uncertainty due to the staff's declarations during the issues conference that more review (and discussion with the United States Environmental Protection Agency [EPA]) will be necessary to ascertain whether the permit limitations meet regulatory requirements. Accordingly, we have no choice but to find that once there are decisions made by staff on these permit conditions, and assuming there are changes to the draft air permit, the revised draft air permit will have to be subject to further review in the context of the issues conference." On page 72 of the Issues Ruling with respect to the sufficiency of permit conditions to protect the City of Hudson's water supply, the ALJs stated that: "These parties [staff and SLC] are to provide the conditions to the City so that it can comment on them. If necessary, should the City find these conditions inadequate, there will be opportunity to raise this matter again in these proceedings."

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