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Waste Management of New York (Towpath) - Ruling, January 12, 2000

Ruling, January 12, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of
WASTE MANAGEMENT OF NEW YORK, LLC
for permits to operate a solid waste
management facility, the Towpath
Environmental & Recycling Center, in
the Town of Albion, Orleans County.

RULINGS OF THE
ADMINISTRATIVE LAW JUDGE

(DEC Application No. 8-3420-00019/00005)

Background

In a letter of January 5, 2000, Mindy Zoghlin, counsel for the Town of Murray, requested that the Department condition any approval of the Towpath project with a requirement that the Applicant develop a mitigation plan for wetland impacts that includes mitigation ratios of 1:1 for emergent wetlands and 1.5:1 for shrub/scrub wetlands. This is essentially the same mitigation requested by the United States Department of Interior's Fish and Wildlife Service in a letter of December 29, 1999, which was directed to the U.S. Army Corps of Engineers. The Fish and Wildlife Service sent a copy of its letter to Department of Environmental Conservation Staff, which then forwarded it to me and the other issues conference participants.

Discussion

According to a recent boundary delineation by the U.S. Army Corps of Engineers, the Towpath site contains 2.35 acres of federally regulated wetland. The filling of this wetland area for development of the Towpath project requires a federal permit, not a state permit. In its letter of December 29, 1999, the Fish and Wildlife Service recommends that the project not be authorized to proceed unless an appropriate wetland mitigation plan is developed by the Army Corps and the Applicant. The apparent intent is that the plan be a condition of any federal permit that is issued. This proceeding is not concerned with the issuance of federal permits, and therefore is not the appropriate forum to decide whether the mitigation proposed by the Fish and Wildlife Service is advisable or required.

Rulings

The Town's request that I require the Applicant to develop a plan addressing the loss of federally regulated wetland is hereby denied. I reaffirm my prior ruling that no issue exists with regard to the filling of federally regulated wetlands. The Town of Murray's request for party status on any such issue is also denied, because according to the available information, the affected wetland areas are in the Town of Albion, not in the Town of Murray.

Appeals

Any appeals of these rulings shall be addressed to the Commissioner on the same schedule as appeals of my previous rulings on issues and party status: Appeals shall be due before 2 p.m. on January 31, 2000, and responses to any appeals shall be due before 2 p.m. on February 22, 2000. These rulings have been made without first affording DEC Staff and the Applicant a formal opportunity to address the Town of Murray's letter, since I expect any points they would have made can be raised in response to any appeal that is filed. Ruling now keeps all appeals on the same schedule, thereby allowing for an efficient, comprehensive review by the Commissioner.

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
January 12, 2000

TO: Towpath Service List

David A. Stilwell, Field Supervisor
United States Department of the Interior
Fish and Wildlife Service
3817 Luker Road
Cortland, New York 13045

Lt. Colonel Mark D. Feierstein
District Engineer, Buffalo District
U.S. Army Corps of Engineers
1776 Niagara Street
Buffalo, New York 14207-3199

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