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Waste Management of New York - Interim Decision, March 10, 1995

Interim Decision, March 10, 1995

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the -

Application of WASTE MANAGEMENT OF NEW YORK for a
consolidated permit to operate a surface clay mine
pursuant to Articles 23 and 24 of the Environmental Conservation
Law of the State of New York (ECL), and Title 6 of the
Official Compilation of Codes, Rules and Regulations of the
State of New York (6 NYCRR) Parts 420 and 663 in the Town of
West Bloomfield, Ontario County

DEC Project No. 8-3200-10/1-0

INTERIM DECISION

March 10, 1995

INTERIM DECISION

This Interim Decision is in response to the appeal filed to the January 31, 1995 Rulings on Issues and Requests for Party Status and Order (the "Rulings") of Administrative Law Judge ("ALJ") Daniel P. O'Connell, filed by William B. Travis, President, Cumberland Associates, on behalf of Phillip Megafee and Ronald and Margaret Fontaine. Although there is a dispute about whether Mr. Travis was authorized to act on behalf of Mr. Megafee, this appeal will be considered as an appeal by Ronald and Margaret Fontaine (the "Intervenors").

The Intervenors appeal the exclusion of three issues by the ALJ. These are appeals are addressed below.

Noise and Fugitive Dust

The Intervenors appeal the ALJ's determination that no issues were raised with respect to noise and fugitive dust impacts. They argue that the offer of proof made to the ALJ is sufficient to raise an adjudicable issue. They further note that additional mitigation accepted by the Applicant after the issues conference evidences the need to address these issues at a hearing.

The ALJ is the primary judge of whether a fact issue exists and substantial deference is given the ALJ's judgment. Where an ALJ rules that a fact question does not meet the threshold for adjudication, on appeal the commissioner will not evaluate the filings de novo but rather will limit review to whether the ALJ has properly applied the substantive and significant standard set forth in the hearing rules (In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992). In this case, the ALJ considered all of the offers of proof in the context of the permit conditions that had been accepted by the Applicant, including the one accepted after the issues conference. I find that he properly applied the standard for finding adjudicatory issues and that therefore his determination should be sustained.

Traffic Safety

Intervenors also appeal the ALJ's rejection of the issue of traffic safety. This proposed issue relates to the adequacy of the sight distance from the access road onto state routes 5 and 20 and whether the road is sufficiently wide to accommodate vehicles attempting to pass trucks entering or leaving the haulageway. With respect to the first concern, the ALJ held that the offer of proof was insufficient in light of the New York State Department of Transportation's agreement as to the adequacy of the Applicant's plan. The second concern was raised on appeal for the first time and was therefore not addressed by the ALJ.

In choosing to rely on the conclusions of the DOT, the ALJ did properly apply the substantive and significant test and his ruling should be sustained. Intervenors have not provided any explanation as to why the second concern was not raised before the ALJ. In addition, they have not demonstrated why the concern is either substantive or significant. No issue is raised for adjudication.

Summary

In all respects ALJ O'Connell's Rulings are sustained. The application is remanded to Staff to complete the environmental review process and to issue the requested permits.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 10th day of March, 1995

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
GARY L. SPIELMANN,
ACTING EXECUTIVE DEPUTY COMMISSIONER
/s/

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