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Strand, Michael and Donna (Clayton's Dam) - Ruling, February 7, 1994

Ruling, February 7, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

CLAYTON'S DAM,
NY-1460, DEC #104C-713,

pursuant to the Environmental
Conservation Law ("ECL")
Article 15, Title 5 and
Title 6 of the Official
Compilation of Codes, Rules
and Regulations of the State
of New York ("6 NYCRR")
Part 673, such dam being
located in the Town of Eaton,
Madison County, New York and
being owned and/or maintained by

MICHAEL AND DONNA STRAND
RR01, Box 412D
Eaton, New York 13334,
RESPONDENTS.

PRELIMINARY RULINGS
OF THE ADMINISTRATIVE
LAW JUDGE

DEC Case No. R7-0485-90-03

Background

The Department of Environmental Conservation (the "Department" or "DEC") Region 7 Staff, 615 Erie Boulevard West, Syracuse, New York 13204-2400 has referred to the Department's Office of Hearings, Room 409, 50 Wolf Road, Albany New York 12233-1550 a hearing request in the matter of the safety of Clayton's Dam, NY-1460, DEC #104C-713.

Clayton's Dam, currently owned by Michael and Donna Strand, RR01, Box 412D, Eaton, New York 13334, is located 0.6 mile east of the hamlet of West Eaton, off NYS Route 26, in the southwest section of the Town of Eaton, Madison County, New York. The dam, of earthfill/rockfill construction, dates to the early 1800's or before, and is approximately 315 feet long and 21 feet high at its highest point.

In accordance with the provisions of ECL 15-0507(1), the Department, in the interest of public safety, "shall investigate dams and other structures impounding waters in the state." Clayton's Dam was inspected by an engineering firm working for the U.S. Army Corps of Engineers in March 1981. The dam was subsequently classified as being in the "High Hazard" category due to several structural deficiencies and due to the close proximity of several downstream residences. The Department's own dam safety engineers have inspected the dam in October 1990, November 1992 and March 1993. These engineers have evaluated the dam as posing a threat, which upon failure of the structure, could result in loss of life and substantial property damage.

The Department Staff seeks to have the current owners of the dam, the Strands, retain an engineering firm to inspect the dam and recommend approvable remedial measures. The owners would then be responsible for implementing repairs of all identified deficiencies to bring the dam into compliance with the applicable safety criteria and to perform subsequent proper maintenance, as necessary. In the alternative, the Department Staff would require the owners to perform a controlled breaching of the dam and to establish a stable channel.

ECL 15-0507(2) requires a hearing to be held prior to the Department issuing an order directing the owners to either repair or remove the structure. Should the owners fail to comply with such an order issued after a hearing, ECL 15-0507(4) authorizes the Department to undertake on its own the necessary removal, repairs or reconstruction of the structure and "to take such other and further precautions which it may deem necessary to safeguard life or property or protect the natural resources of the state against danger occasioned by the presence of" the structure.

ECL 15-0507(5) authorizes the Department to certify its own costs and expenses for carrying out such removal, repair or reconstruction, as necessary, to the county where the structure is located. It is then the county's responsibility to recover such costs and expenses by adding the amount to the assessment rolls of the locality as a charge against the real property upon which the structure is located. The locality must then collect the amount of the costs and expenses in the same manner as other taxes and pay the same to the Department, which shall pay the same to the State Treasury. The amount of the costs and expenses becomes a lien upon the real property affected the same as any tax levy becomes a lien thereon.

As early as October 1981, the Department Staff attempted to encourage the then owner of the dam to voluntarily undertake the measures necessary to correct the deficiencies found during the March 1981 inspection of the structure. Following the Strand's purchase of the property with the dam in 1989, the Department Staff have on several occasions, and as recently as March 25, 1993, encouraged the Strands to complete the necessary remedial measures to ensure the structural integrity and safety of the dam.

Since the Staff has been unable to persuade the dam owners, either previous or current, to voluntarily take the measures it deems necessary to bring the dam into compliance with the applicable safety criteria, the Staff on December 8, 1993, referred the matter to the Office of Hearings, seeking a hearing at 10:00 A.M. on January 13, 1994 in the Department's Region 7 offices in Syracuse, New York.

Appearances

The Department Staff is represented in this matter by Jennifer L. Powell, Esq., Assistant Regional Attorney in the Department's Region 7 Office, 615 Erie Boulevard West, Syracuse, New York 13204-2400.

Following the Department Staff's issuance and publication of a Notice of Hearing, Respondents Michael and Donna Strand initially appeared pro se. The Strands are currently represented by David G. Klim, Esq., 206 North Townsend Street, Syracuse, New York 13203.

Also, in response to the Staff's publication of the Notice of Hearing, Charles A. and Ann C. Howe, residing at 3909 Commander Drive, Hyattsville, Maryland 20782; Katherine H. and Sam A. Roberts, residing at 1912 Yalecrest Avenue, Salt Lake City, Utah 84108; and Judith L. Howe and Robert Harangozo, residing at 11 Priscilla Avenue, Yonkers, New York 10710, (hereafter referred to collectively as the "Howe Petitioners") seek to appear in this matter. They are represented by the law firm of Gilbert, Segall and Young, 430 Park Avenue, New York, New York 10022-3592 (David D. Howe, Esq., of Counsel).

Requests for Adjournment

On January 3, 1994, Respondents requested an adjournment of the January 13, 1994 hearing for the following reasons: 1) Respondents were still attempting to hire an engineer to evaluate the dam and the Department Staff's assessment of its structural integrity and safety; 2) Respondents were exploring various sources of funding to accomplish remedial work on the dam, e.g. - establishing a tax-exempt not-for-profit historic preservation and conservation corporation; 3) Respondents were soliciting support from community members and neighbors; and 4) Respondents were acting in good faith, without an attorney, and felt the Department Staff was rushing the hearing process unnecessarily, when no emergency conditions currently exist at the dam. Respondents indicated they had begun to implement some of the measures which the Department's Dam Safety Unit had recommended, but they believe the remediation of the structure should be done on a smaller scale and over a greater time period.

Also on January 3, 1994, I received a December 31, 1993 letter and Notice of Appearance from the Howe Petitioners seeking both an opportunity to appear at any hearing concerning Clayton's Dam and an adjournment of the scheduled January 13, 1994 hearing date until late March 1994, at the earliest. The Howe Petitioners stated that their family has owned property on or near the pond impounded by Clayton's Dam at all times since approximately 1805, and on property abutting the pond, they currently maintain a seasonal vacation cottage which overlooks the pond. They stated that the pond has substantial aesthetic, environmental, historic and recreational value, and that their interest was to ensure the pond was preserved and that any remediation ordered by the Department Staff took these values into account. They stated that Charles A. Howe wished to testify at the hearing, but would be unable to personally appear until late March 1994. The Howe Petitioners reiterated another reason for an adjournment was that the Strands were still attempting to retain an engineer and the process of evaluating the dam's structure should not be rushed.

On January 7, 1994, the Department Staff responded to these two requests for adjournment of the hearing. The Staff addressed what it saw as essentially four reasons put forward by the Respondents and the Howe Petitioners for an adjournment:

  1. Charles Howe's proposed testimony would address his family's interests in the dam, i.e. - aesthetic, environmental, historic and recreational, and Mr. Howe would not be available to testify until late March. The Staff noted these interests were of only peripheral relevance to the hearing, the purpose of which is to address the public safety concerns regarding the dam's structural integrity. Moreover, the Staff agreed to receive Mr. Howe's testimony by way of an affidavit. An adjournment would not be warranted on this basis.
  2. The Respondents' engineer would need some time to evaluate the dam's structure and the Staff's inspection reports prior to a hearing. The Staff would agree to a brief, three week maximum, adjournment to accommodate this need.
  3. The Respondents received short notice of the hearing, and do not believe there is an urgency to hold the hearing or complete the remedial work on the dam. Staff stated the Respondents have been on notice since March 1993 that repairs to the dam were necessary. Only because Respondents failed to accomplish the work voluntarily was the Staff forced to issue the Notice of Hearing. On this basis there is no justification to delay the hearing.
  4. The Respondents need more time to solicit funds to pay for the remediation of the dam. The Staff contended that fundraising efforts could occur concurrently with the hearing process, and consequently, there was no basis to adjourn the hearing.

On January 12, 1994, by telephone, I advised Ms. Powell, Mr. Klim - the attorney then retained by the Strands, and Mr. Howe that the hearing scheduled for January 13, 1994 in the Department's Region 7 office was adjourned and would be rescheduled upon receipt of additional information from the three participants.

On January 12, 1994, I received a letter from Mr. Klim, seeking an adjournment beyond the three week period agreed to by the Department Staff, on the basis that such a limited adjournment would "provide no practical benefit to my clients or to the health and safety of the community around Clayton's Dam." Mr. Klim contended that since the dam is now covered by snow and ice, any engineer retained by the Respondents would be unable to conduct a thorough inspection and detailed structural analysis until the Spring. On this basis, Mr. Klim requested a delay in commencing the proceeding until "sometime in mid-summer," as being in the best interests of all concerned in this matter.

Also on January 12, 1994, I received a letter from the Howe Petitioners contending that the Staff's three week adjournment was unrealistic, inasmuch as the Respondents had not yet actually retained an engineer and further because of the weather conditions. The Howe Petitioners noted they had offered a financial contribution towards the hiring of an engineer, and for the Department Staff to rush into a hearing would circumvent the rationale for holding a hearing. Further, they indicated that Mr. Howe's participation in the hearing process would not be limited to his testimony, and therefore, his schedule for attendance at a hearing in late March should be accommodated. They cautioned that rushing the proceeding would only result in development of an incomplete record and would be unfair to all involved.

The Department Staff responded to the latter two letters in a January 13, 1994 letter to me. The Staff reaffirmed its position that a three week adjournment is reasonable, and the lengthy adjournments sought by the Respondents and the Howe Petitioners are not justified. The Staff reiterated that public safety is the primary consideration in the instant case; that any delays have resulted from the Department Staff trying to accommodate the dam's owners and their financial limitations; that despite apprising the Strands of the dam's deficiencies as early as 1989, the recommended remedial measures have not yet been completed; and that any delays of the hearing until late March or later will seriously jeopardize any chance of completing the remedial actions prior to the next high-flow season.

On February 4, 1994, I received a January 28, 1994 letter from New York State Senator Nancy Larraine Hoffmann, supporting the Strands and endorsing the requests for adjournment of any hearing until at least Spring.

Rulings

-- Party Status

The applicable sections of Article 15 (Water Resources) of the Environmental Conservation Law which govern the proceedings in this case are 15-0507 (Structures impounding waters; inspection) and 15-0903 (Hearing procedure). While 15-0903 provides for notices of appearance, the interests of the person or persons seeking to appear at a hearing conducted pursuant to this article must specifically relate to the statutory basis for conducting such a hearing.

In the instant case, 15-0507 solely concerns the public safety of, among other facilities, dams and other impounding structures. In their December 31, 1993 Notice of Appearance, the Howe Petitioners have identified their interests as being founded in the ownership and use of lands which abut the pond impounded by Clayton's Dam, i.e. - lands which are upstream of the subject dam and are unaffected by the public safety aspects related to any potential failure of the dam.

Furthermore, the Howe Petitioners have objected to the proposed project, i.e. - remediation and repair of the dam, or alternatively, breaching of the dam, on the grounds that the "project would cause significant injury to the economic, scenic, aesthetic, historic and recreational value" of their lands. Secondly, they assert the "project would cause significant injury to the scenic, aesthetic, wildlife, ecological and historical resources of the community, and would injure the water resources of the State, including an existing freshwater wetlands, to the detriment of the welfare of the community and in derogation of the public policy of the State of New York." Third, they contend the scope of the remediation recommended by the Department Staff appears to be excessive and unwarranted, and lastly, the Staff's timetable is unnecessarily short.

Nowhere in their Notice of appearance or in either of their two letters do the Howe Petitioners focus on the subject of the instant proceeding, i.e. - the public safety aspects related to potential failure of Clayton's Dam and the damage to life, property and natural resources which could occur in the event of a sudden release of the impounded waters associated with such a failure. The interests identified by the Howe Petitioners relate solely to their continued enjoyment of their upstream waterfront property. They have not demonstrated any expertise to offer testimony addressing the interests which they have identified. Nor have they shown how their participation in a hearing could aid the Commissioner in making an informed decision in this matter pursuant the subject of ECL 15-0507, i.e. - ensuring the public safety with regard to impoundment structures.

Therefore, I must deny the Howe Petitioners request to appear and participate in the hearing as a party. However, since the Howe Petitioners have shown an interest in maintaining the impoundment upstream of Clayton's Dam, I would encourage them to work with and assist the Respondents to the extent possible in order to accomplish the measures necessary to remediate, repair and reconstruct the dam.

-- Scheduling of the Hearing

The Strands have been on notice since 1989 that Clayton's Dam has structural deficiencies. As the owners of the dam, the Strands are responsible for either repairing, reconstructing or removing the dam, in accordance with the provisions of ECL 15-0507. The Department Staff has repeatedly recommended that the Strands retain an engineer to develop a remedial plan for the dam. As of this writing, I have not been apprised that the Strands have yet hired an engineer, although it has been over a month now since their letter indicated they were trying to hire an engineer.

The Strands have accomplished minor work on the dam, but have done nothing to address the repair of the dam's structural problems. Moreover, the Staff alleges this work may have aggravated the dam's deficiencies. The longer this matter is deferred, continued erosion and deterioration can be anticipated, and it is reasonable to expect the dam's structural problems will become more serious. Periods of high runoff will likely be especially detrimental to the dam's integrity.

The Strands have indicated they have limited funds for repair of the dam. They are engaging in fundraising efforts and are in the process of setting up a not-for-profit foundation or association to preserve the dam. However, this is not a reason to further postpone a hearing in this matter. Any fundraising and organizational efforts can occur simultaneously.

Public safety is the sole consideration at issue in the instant proceeding. In the papers submitted to me, neither the Strands nor the potential intervenors have expressed any concern for the persons or property downstream of the dam which would be in jeopardy in the event of the dam's failure. The focus of everyone involved should be to either satisfactorily repair the dam to bring it up to acceptable standards of safety or to breach the dam to avoid the potential for a sudden, uncontrolled failure. Either of these actions should not be inordinately delayed, which is what counsel for the Strands is now seeking.

Therefore, I am denying the requests for a lengthy adjournment in this matter. The Department Staff originally agreed to a three week adjournment. The date of this ruling encompasses that three week period. I am hereby setting the date of February 23, 1994 for commencement of the hearing in this matter. Such date provides a de facto adjournment of five weeks from the original hearing date.

The hearing in this matter, then, will occur at 10:00 A.M. on Wednesday, February 23, 1994 in the Department's Region 7 Office, 615 Erie Boulevard West, Syracuse, New York. The hearing will be continued the following day, Thursday, February 24, 1994 in the same location, as necessary. All persons involved should be fully prepared to present their respective cases upon commencement of the proceeding.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION

/s/
ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE

Dated: Albany, New York
February 7, 1994

To: Michael and Donna Strand
RR01, Box 412D
Eaton, New York 13334

David G. Klim, Esq.
206 North Townsend Street
Syracuse, New York 13203

David D. Howe, Esq.
Gilbert, Segall and Young
430 Park Avenue
New York, New York 10022-3592

Hon. Nancy Larraine Hoffmann
New York State Senator, 48th District
Room 606
Legislative Office Building
Albany, New York 12247

Jennifer L. Powell, Esq.
Assistant Region 7 Attorney
New York State Department
of Environmental Conservation
615 Erie Boulevard West
Syracuse, New York 13204-2400

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