Girouard, Adrian - Interim Decision, March 16, 2001
Interim Decision, March 16, 2001
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
- of -
the Application for a Mined Land Reclamation Permit pursuant to Article 23 of
the Environmental Conservation Law and Parts 420-426 and 624 of Title 6 of
the New York Compilation of Codes, Rules and Regulations
- by -
DEC Project No. 5-1630-00093/00003
March 16, 2001
This interim decision decides the appeals of William R. Thomas, Esq. from issues rulings of Administrative Law Judge (ALJ) Helene G. Goldberger rendered on January 11, 2001 related to the application of Adrian Girouard for a mined land reclamation permit pursuant to Article 23 of the Environmental Conservation Law (ECL). Mr. Girouard has proposed to mine sand and gravel in the Town of Brighton, Franklin County on a 129-acre parcel. The applicant proposes to disturb five acres on this site which is within the Adirondack Park. The Adirondack Park Agency (APA) has concurrent jurisdiction of this project with the New York State Department of Environmental Conservation (DEC). Accordingly, DEC staff has identified the project as Type II under the State Environmental Quality Review Act (SEQRA) and it is therefore excluded from that review.
Mr. Girouard filed a mining permit application with DEC on March 14, 2000 and staff determined that it was complete for review purposes on August 31, 2000 when it issued a notice of complete application. He also filed an application with the APA on March 10, 2000 and APA determined the application complete on August 29, 2000. After publication of the public notice, a joint DEC and APA legislative hearing was held on the evening of January 8, 2001 in the Town of Brighton Garage. A joint issues/prehearing conference was convened on January 9, 2001 in the Brighton Town Hall. At the issues conference, ALJ Goldberger with the participation of Regional Attorney Christopher Lacombe and APA Attorney Mitch Goroski, explained the distinctions between DEC and APA permit proceedings including the standards for party status. (Issues Conf. Transcript, pp. 12, 20-21). While several people who attended the conference were deemed parties under APA regulations due to their ownership of land in proximity to the proposed project (see, 9 NYCRR §§ 580.4, 580.5), the ALJ cited Part 624's more stringent requirements of environmental interest, an interest related to the statutes administered by DEC, a statement of the precise grounds for opposition to a project, the identification of significant and substantive issues and the presentation of an offer of proof. (Transcript, pp. 20-21).
Citing § 624.5 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), the appellant, Mr. William Thomas, an Ohio attorney and landowner of property near the Girouard site, had filed a motion on January 4, 2001 with the DEC's Office of Hearings and Mediation Services (OHMS) to participate in the DEC proceedings as a full party. This motion referenced comments that had previously been filed with the APA staff in September 2000. ALJ Goldberger agreed to consider this motion a petition pursuant to the requirements of the hearing notice but did not find that it met the standards set forth in 6 NYCRR §§ 624.4 and 624.5 in her issues ruling dated January 11, 2001.
DEC staff opposed the motion of Mr. Thomas because it was late and staff did not receive it until January 5, 2001 while the hearing notice required filing by January 4; the petitioner did not have an adequate environmental interest pursuant to 6 NYCRR § 624.4(b)(ii); and the petition did not meet the standards set forth in 6 NYCRR §§ 624.4(c)(iii)(2), (3) and 624.5(b)(1). (Issues Conf. Transcript, pp. 29-35). While ALJ Goldberger agreed with staff that the petition did not meet the standards in Part 624, she did find that Mr. Thomas filed his petition in a timely manner and had an adequate environmental interest.
By letter dated January 12, 2001, Mr. Thomas requested of Chief Administrative Law Judge Daniel E. Louis additional time to file an appeal from the ALJ's ruling. By letter dated January 17, 2001, Chief ALJ Louis provided Mr. Thomas until January 26, 2001 to submit his appeal. On February 5, 2001, Kirk Gagnier filed a response to Mr. Thomas' appeal on behalf of the applicant.(1)
With this decision, I affirm the ALJ's findings. The regulations that govern DEC's permit hearings require that a petition for party status provides, inter alia, the precise grounds for opposition or support and that it identifies "any interest relation to statutes administered by the department relevant to the project . . ." 6 NYCRR §§ 624.5(b)(iii), (v). In addition, § 624.4(c)(2) sets forth the standards for adjudicable issues as substantive and significant.(2) Where the staff, as here, has determined that the application meets the statutory and regulatory requirements, a petitioner seeking party status has the burden of showing that a proposed issue is substantive and significant. As explained in the hearing notice, because ECL § 8-0111(5)(c) and § 617.5(c)(36) of 6 NYCRR identify certain projects within the Adirondack Park as excluded from SEQRA review, DEC's jurisdiction is limited to the specific actions related to mining and reclamation pursuant to Article 23 of the ECL and Parts 420-426 of 6 NYCRR. It is the APA that has authority in this application to do the broader environmental review which is analogous to SEQRA. See, § 809(10) of the Adirondack Park Agency Act (APAA).
Mr. Thomas' petition, while constituting comment on the proposed project, does not meet the standards under Part 624 for party status or adjudicable issue identification. In the petition Mr. Thomas gives a general viewpoint about noise, negative impacts on property values and water contamination. He further states an expectation of having witnesses that would testify to adverse impacts of noise and his prediction that a number of residents will address how the mine will not fit in with the character of the community. The referenced September 21, 2000 letter is also general in its predictions that the mine would not be compatible with local land uses citing traffic and noise concerns. In that letter he also lists concerns such as water quality, drainage, topography, air quality, noise levels, wildlife, aesthetics and adjoining land uses. With some of these listed items are also conclusory remarks such as "[a] mine will undoubtedly entail digging up large sections of the ground that will leave gaping holes" and "[t]he exhaust emissions for such heavy equipment, as well as the mining operations itself, will adversely impact air quality." Mr. Thomas fails to cite to any statutory or regulatory criteria that are likely to be violated by the proposed project nor does he make any offer of proof concerning these assertions. For several of these objections such as community character, scenic vistas, and traffic, DEC does not have jurisdiction to review potential impacts based upon the limitations set forth in ECL §8-0111(5)(c).
In his appeal, Mr. Thomas repeats the general concerns that he and his neighbors expressed at the legislative hearing. While these comments may provide a basis for a hearing under APA regulations, they do not alone provide grounds for granting party status or finding adjudicable issues pursuant to Part 624. Staff was present at the legislative hearing and did not state any reason to deny the Article 23 permit based upon the public comments.
Mr. Thomas' citation to Matter of the Application of Lane Construction, Commissioner's Decision (June 26, 1998) regarding visual impacts is misplaced. In that permit proceeding DEC was the lead agency under SEQRA and thus had jurisdiction to analyze visual impacts. Moreover, in that proceeding, the petitioners (who became parties in the adjudicatory hearing) provided the ALJ with an adequate offer of proof to join the issue. See, e.g., Matter of the Application of Lane Construction, Interim Rulings, February 22, 1996.(3)
Mr. Thomas also cites to the public statement of a property owner, David Johnson, at the legislative hearing as proof that ALJ Goldberger did not properly consider the issues presented in his petition. Mr. Johnson, a water quality professional and a resident of the Town of Brighton, gave an unsworn statement with general conclusions about how the proposed mine would contaminate the water table on Jones Hill. (Leg. Hrg. Transcript, pp.54-58). These comments do not comprise an offer of proof and as Mr. Thomas acknowledges in his appeal, he did not even identify Mr. Johnson or his specific opinion in his motion papers.(4)
Last, Mr. Thomas blames the applicant for any deficiencies in his petition based upon Ms. Julie King's denial of Mr. Thomas' telephoned request for access to the property to do an inspection.(5) Mr. Thomas states that "he wanted to bring a water expert, noise expert and property valuation expert on the property so that they could evaluate the situation and render opinions." DEC's permit hearing regulations provide that discovery is limited to what is afforded under Part 616 (Freedom of Information) prior to the issues conference except under a demonstration of extraordinary circumstances. 6 NYCRR § 624.7(a). In the context of the APA proceeding, the record reflects the ALJ made it clear that the applicant would have to allow access to the parties under limited circumstances so that they could prepare their proof for the adjudicatory hearing. (Issues Conf. Transcript, pp. 58-59, 85-87, 132-133).
DEC's hearing procedures vary from APA's. In order for a petitioner to obtain discovery, generally he or she must first establish the basis to become a party. (See, footnote 3, p. 4). In this case, that would have required Mr. Thomas to have his experts analyze the project based upon the documentation that is readily available from DEC and the APA and other public sources and provide an offer as to the deficiencies of the project in terms of DEC's mining regulations. (Issues Conf. Transcript pp. 34-35). Based upon that offer, the ALJ could decide if the discovery request was reasonable. Mr. Thomas did not identify any witnesses and did not describe any efforts to review the application and related materials.
I am denying Mr. Thomas' appeal based upon his failure to meet the standards set forth in Part 624 as described above and in the ALJ's rulings. Holding an adjudicatory hearing where "offers of proof, at best, raise uncertainties" does not meet the intent of DEC's regulatory process. See, In the Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner (January 31, 1996). While the intervenor's offer of proof at the issues conference need not be so convincing so as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See, id.
Accordingly, I am remanding this proceeding to staff for completion of the permit process in accordance with the ALJ's rulings.
For the New York State Department of Environmental Conservation
Gavin J. Donohue
Albany, New York
Dated: March 16, 2001
1. Mr. Gagnier filed a notice of appearance with ALJ Goldberger on January 24, 2001.
2. An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those in the draft permit. 6 NYCRR §§ 624.4(c)(2),(3).
3. Early in the Lane proceeding, the ALJ's did direct the applicant to arrange for a site visit by a proposed intervenor's biological expert and DEC staff to assess the potential for timber rattlesnake habitat. While this directive took place prior to the identification of issues and parties, the petitioner had a very specific request based upon the assessment of its own expert. In addition, as noted in the ruling, the intervenors presented "anecdotal and historical evidence" in support of its position. In the matter at hand, there is no such specific identification of a potential environmental issue nor tangible support of any kind for the general allegations made by Mr. Thomas. See, Lane, Preliminary Rulings of the ALJ's, September 21, 1995.
4. Mr. Johnson did not attend the issues/prehearing conference nor did he petition to intervene in these proceedings.
5. Ms. King is the daughter of the applicant and his representative in these proceedings.