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Girouard, Adrian - Ruling, January 11, 2001

Ruling, January 11, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter
of
the mined land permit application 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 -

ADRIAN GIROUARD

ALJ Rulings on Issues and Party Status

DEC Project No.
5-1630-00093/00003

Introduction

These proceedings involve the application of Adrian Girouard on March 14, 2000 to the New York State Department of Environmental Conservation (DEC or Department) for a mined land reclamation permit pursuant to Article 23 of the Environmental Conservation Law (ECL) and Parts 420-426 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR). Mr. Girouard seeks to construct a sand and gravel pit in the Town of Brighton, Franklin County to be located on a 129-acre parcel on the east side of the Gabriels-Onchiota Road (County Route 30). The mining site lies approximately 2000 feet east of this county highway. The applicant proposed to remove 10,000 cubic yards of material annually and operate May through November, Monday through Friday from 7:00 a.m. to 4:00 p.m. and occasionally on Saturday from 7:00 a.m. to 12 noon. The applicant anticipates a maximum of ten loaded truck trips daily. Five acres of land are to be disturbed during the life of mine which is to be a maximum of fifteen years.

Because this site is located in the Adirondack Park, the Adirondack Park Agency (APA) has concurrent jurisdiction with DEC. The application is exempt from the requirements of the State Environmental Quality Review Act pursuant to 6 NYCRR § 617.5(c)(36).

Legislative Hearing

Pursuant to a notice of hearing published in the Environmental Notice Bulletin on December 13, 2000 and the Adirondack Daily Enterprise on December 18, 2000, a legislative hearing was convened in the Town of Brighton Town Garage on January 8, 2001 at 6:30 p.m. Approximately 45 people attended this hearing and twenty-five people provided comments including the applicant and the staffs of the APA and DEC. Of the speakers, apart from the applicant and the staffs of the DEC and APA, all expressed opposition to the project.

The Department's Region 5 attorney, Chris Lacombe, stated that the regional staff had prepared a draft permit and were tentatively expecting to issue it pending the comments provided at the legislative hearing and issues conference. On behalf of the APA, Senior Attorney Mitch Goroski provided that the APA staff had concerns with respect to the project that would be pursued at a future adjudicatory hearing. On behalf of the applicant, Robert Brower of the Franklin County Soil and Water District provided an overview of the proposed project. The other speakers, either full or part-time residents of the community in which the project is proposed, expressed concerns about water quality and their water supply, noise, dust, traffic safety, negative impacts to the community character particularly, the peaceful and aesthetic qualities of the area. Many people expressed the view that a mine was not compatible with the land uses in the area which were summer homes, rental cottages, canoeing areas, and hiking trails. In addition, many speakers stated that the presence of a mine would reduce the values of the real property in the community.

After members of the audience provided comments, pursuant to APA procedures, a period of questions and answers ensued. Once this discussion concluded, the public hearing was adjourned at 8:45 p.m.

Issues Conference

At 10:15 a.m. on January 9, 2001, the joint DEC/APA issues/prehearing conference was convened at the Town of Brighton Town Hall. This ruling only addresses the determination of the administrative law judge with respect to adjudicable issues and identification of parties pursuant to Part 624 of Title 6 of NYCRR. A separate order is to be issued that addresses the issues to be heard at a future adjudicatory hearing pursuant to Part 580 of APA's regulations. In attendance were DEC Region 5 attorney Chris Lacombe, APA Senior Attorney Mitch Goroski, Ms. Julie King, on behalf of the applicant Adrian Girouard (her father), petitioner William R. Thomas, Esq., and community residents Linda Dobson, Diane Griffin, Charles H. Reiners, Stanford H. Shaw, Jr., and Joseph C. Reiners, Jr. There were also several other staff members of DEC and APA and observers.(1)

At the outset of the conference, the ALJ and DEC and APA counsel contrasted the hearing regulations for DEC and APA with respect to party status and adjudicable issues. We explained that pursuant to Part 624, there were a number of requirements for petitions and party status. In contrast, the APA regulations are quite broad in allowing adjacent landowners to become parties in an adjudicatory hearing and issues of any concern are generally permitted to become the subjects of such a hearing. Thus, while the community residents identified above are parties pursuant to APA regulations because they reside within 500 feet of the proposed mining site, they cannot be considered parties in any DEC hearing because they did not file petitions for such status. Contrast, 6 NYCRR §§ 624.4(c) and 624.5 with 9 NYCRR §§ 580.4(b)(3), 580.5, 580.7.

Because the Department staff is satisfied that Mr. Girouard's application meets applicable law and regulation, it has determined that it can issue a permit for this project. Ms. King, on behalf of Mr. Girouard, represented that the applicant did not have any objections to the permit conditions with which she was presented at the issues conference. Accordingly, pursuant to 6 NYCRR §§ 624.4(c)(i) and (ii), there are no adjudicable issues from the standpoint of the staff and applicant.

Pursuant to the hearing notice, Mr. William Thomas, on behalf of himself, filed a motion for full party status with the Office of Hearings and Mediation Services (OHMS) on January 4, 2001. In this motion, Mr. Thomas, who is a property owner within 500 feet of the proposed project, outlines concerns that he had with respect to the mine. The petitioner provides that he would expect to call witnesses, including experts, to testify at an adjudicatory hearing regarding noise, property values, and water contamination. Included with this motion is a letter that was sent to the APA in September 2000 that further describes these concerns and others such as the incompatibility of the project with the surrounding area, traffic safety, potential impacts to the recreational resources of the community, drainage and runoff, air quality, and wildlife.

At the issues conference, Regional Attorney Chris Lacombe objected to Mr. Thomas's filing on three grounds. He argued that (1) the petition was late as staff did not receive it until January 5, 2001 while the hearing notice required filing by January 4; (2) the petitioner did not establish environmental interest pursuant to 6 NYCRR § 624.5(b)(ii); (3) the petition did not meet the standards set forth in 6 NYCRR §§ 624.4(c)(iii)(2), (3) and 624.5(b)(1).

Discussion

I agree with staff that Mr. Thomas's petition does not meet the standards set forth in the regulations to qualify him as a party. The motion which I have deemed a petition was received by the OHMS on January 4, 2001. While the staff did not receive it until the next day, I do not see that in and of itself as a sufficient basis to disqualify it from consideration. And, Mr. Thomas's residence close to the mining site should be sufficient to establish environmental standing in this matter. However, the petition is inadequate because it does not specify what statutory or regulatory criteria the project fails to meet. 6 NYCRR §§ 624.4(c)(2), 624.5(b)(1)(iii). The petition contains a general list of concerns but does not set forth the precise grounds for the petitioner's conclusions that the project will cause the harm that Mr. Thomas describes in conclusory terms. 6 NYCRR §§ 624.5(b)(1)(v), 624.5(b)(2)((i). There is no offer of proof or specific identification of witnesses. 6 NYCRR § 624.5(b)(2)(ii).

Conclusion

Based upon the deficiencies described above, I have determined that Mr. William Thomas is not a proper party pursuant to 6 NYCRR § 624.5 and his petition fails to meet the requirements set forth in §§ 624.4 and 624.5. Because staff has determined that the project is consistent with the Department's regulatory requirements and the applicant does not object to the permit conditions proposed by staff, I am remanding the processing of the permit application to Region 5 staff with the following recommendations.

As discussed at the issues conference, the applicant has agreed to concurrent reclamation and therefore, the draft permit should be revised to reflect this agreement. In addition, as noted at the issues conference, while the draft permit indicates "a 5 acre life of mine area", the applicant is proposing a 15-year life of mine. Thus, the permit should be clarified to reflect that status with the term of this permit being five years. Finally, I recommend that special condition number 3 specify what alternative dust suppressants the Department staff expects the permittee to utilize in the event that water is insufficient.

Appeals

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis. 6 NYCRR § 624.8(d)(2). Expedited appeals may be filed with the DEC Commissioner in writing within five days of the disputed ruling. 6 NYCRR § 624.6(e)(1). Any appeals must be sent to Commissioner John P. Cahill and received at his office (NYSDEC, 50 Wolf Road, Albany, New York 12233-1010) before 5:00 p.m. on January 17, 2001. Any responses to any appeals must be received before 5:00 p.m. on January 24, 2001. The parties shall ensure that transmittal of all papers is made to me and all others on the service list at the same time and in the same manner as transmittal to the Commissioner. Please send two copies of any appeal filed. No submissions by telecopier will be accepted. Appeals should address these rulings, rather than merely restate a party's contentions. Any request for an adjustment of the appeal schedule must be made to DEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.

This ruling does not affect the APA proceedings that will continue to go forward as provided in my letter of January 10, 2001 and any future rulings.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge
Albany, New York

Dated: January 11, 2001

1. The ALJ inquired of Ms. King as to her status with respect to the application. She is the daughter of the applicant, has been designated his agent on the application to DEC and may participate in the operation if it is permitted. Based upon a misunderstanding by Ms. King that the APA would provide counsel to her in these proceedings, there was a discussion at the issues conference as to whether Ms. King should seek counsel to represent her and her father but she expressed her desire to continue as this stage without obtaining such representation. It was made clear by the ALJ that at any time Ms. King and/or Mr. Girouard were free to obtain counsel.

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