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Troy Sand and Gravel - Ruling, November 23, 1998

Ruling, November 23, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Modification of the Mined Land Reclamation Permit of
Troy Sand and Gravel (Boyle Mine or Tayer Road Mine)

RULING

DEC Permit No.
4-3846-00011/00001

November 23, 1998

Background

Troy Sand and Gravel (the Permittee) has requested reconsideration of the decision to schedule an additional legislative hearing regarding the Department of Environmental Conservation's modification of the above permit.

The hearing concerns two permit conditions which the Department of Environmental Conservation (the Department) Region 4 added to the permit at the same time as the mining map was updated. The Permittee requested a hearing on the two conditions imposed by the Department. The hearing was assigned to me by the Chief Administrative Law Judge. Subsequently, a legislative hearing for public comment was scheduled for the evening of November 30, 1998 in the Town Hall of the Town of Stephentown, Rensselaer County, and an issues conference was scheduled for the afternoon of December 1, 1998 at the same location. A notice of public hearing which included both of these events was published in the Troy Record and in the Environmental Notice Bulletin on November 4, 1998.

On November 16, 1998, I received a letter from Joseph Catalano, Esq., Village Attorney for the Village of East Nassau, Rensselaer County, which requested that an additional hearing be held in the Village. I sent a copy of Mr. Catalano's letter to Ann Lapinski, Esq., Assistant Regional Attorney in Region 4, and to Andrew Gilchrist, Esq., counsel for the Permittee, by telecopier on November 17, 1998, and contacted each of the above persons regarding the date of an additional hearing. Mr. Gilchrist did not object to the request for an additional hearing when I spoke with him on November 17, 1998.

December 10, 1998 was the date that I identified for the additional legislative hearing. On November 19, 1998, Mr. Gilchrist sent me a letter by telecopier, objecting to having an additional hearing in East Nassau. The letter also requested that if the legislative hearing in East Nassau was held, the legislative hearing and issues conference in Stephentown be adjourned and the issues conference be held after the East Nassau legislative hearing. A telephone conference call took place at about 4:30 P.M. on November 19, 1998 among Ms. Lapinski, Mr. Catalano, Mr. Gilchrist and me. I stated that the additional legislative hearing would be scheduled and that I did not think that having the additional legislative hearing posed any insurmountable procedural problems.

On November 20, 1998, Mr. Gilchrist sent to me by telecopier a letter requesting reconsideration of the decision to have a second legislative hearing. The present ruling is in response to this request for reconsideration.

Discussion

The mine whose permit is the subject of the hearing is located within the Town of Stephentown but is near the border between the Town of Stephentown and the Village of East Nassau. After the hearing was initially scheduled, Region 4 provided to me a list of addresses for mailing of the original hearing notice, which list included numerous addresses in East Nassau. This list was for mailing the notice to persons deemed to have an interest in the permit modification (see 6 NYCRR § 624.3(d)) and it is my understanding that the list was compiled by Region 4 from the addresses of persons who had written to the Department regarding the mine. The Village government of the Village of East Nassau, through its attorney, has expressed interest in this proceeding. The Stephentown Town Hall, which is the location of the November 30 and December 1 hearing and issues conference, is reportedly 8.5 miles from the permitted sand and gravel mine.

Given the locations and distances involved, and the fact that the original notice had already been published and distributed prior to the request for a hearing in East Nassau, it is reasonable to go ahead with the already noticed hearing dates and to have the additional legislative hearing. 6 NYCRR §624.3(b)(2) states that the hearing location must be in the town , village or city in which the project is located, as reasonably near the project site as practicable. This section gives the Administrative Law Judge the discretion to select a different location based on the convenience of parties and witnesses.

Canceling the November 30 and December 1 dates at the present time would be impractical due to the short time involved between now and then, which includes Thanksgiving Day. The prejudice to the public if these hearing dates were canceled at the present time outweighs the prejudice to the Permittee in attending a second legislative hearing. The Permittee would not be incurring costs for an additional transcript, the cost of the supplemental hearing notice, or any costs for use of the second hearing location since the hearing is on Department-initiated modifications of the permit and the consequently the Department pays these costs (6 NYCRR § 624.11(a)).

Having a second legislative hearing after the issues conference need not create any procedural infirmities. If previously undisclosed issues are discussed at the second legislative hearing that need to be considered in making the issues ruling, the issues conference could be reconvened and/or could be supplemented by written argument (6 NYCRR §624.4(b)). The likelihood that statements at the second legislative hearing would raise additional potential issues is particularly small in the present hearing since it is a hearing on two contested permit conditions rather than on an entire permit application. As stated in the original hearing notice, issues may only be proposed in regard to the permit conditions contested by the Permittee.

Ruling

The November 30, 1998 legislative hearing, the December 1, 1998 issues conference and the December 10, 1998 legislative hearing will go forward as scheduled.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York
November 23, 1998

TO: Andrew Gilchrist, Esq.
Ann Lapinski, Esq.
Joseph Catalano, Esq.

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