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Lake George Park Commission (SONAR) - Ruling, September 12, 2001

Ruling, September 12, 2001

NEW YORK STATE
ADIRONDACK PARK AGENCY

In the matter of the application of the Lake George
Park Commission and New York State Office of
General Services,

RULING ON PARTY STATUS
applicants
AND ISSUES
Application #2001-006

for a freshwater wetlands permit to apply
SONAR® in Lake George.
________________________________________

SUMMARY

This Ruling addresses the requests for party status and the issues that have been proposed for adjudication with regards to the Adirondack Park Agency's ("APA") request for a public hearing on the application of the Lake George Park Commission ("LGPC") and the New York State Office of General Services ("OGS"). The LGPC and OGS have applied for a freshwater wetlands permit to apply the aquatic herbicide SONAR® in four separate bays in the Lake George in the Town of Bolton, Warren County.

The hearing is being held pursuant to Title 9 of the New York Code of Rules and Regulations ("9 NYCRR"), Part 580. Pursuant to the 9 NYCRR 580.5, the APA, LGPC and OGS are parties to the proceeding as well as any persons granted intervention under 580.7. Four petitions for party status were received. Those seeking to intervene are the Adirondack Council ("AC"), the Resident's Committee to Protect the Adirondacks ("RCPA"), a group that joins the Lake George Agency and the Coalition of Lakes against Milfoil ("LGA/COLAM"), and Alexander G. Gabriels III.("Gabriels"). All requests for party status were timely filed.

BACKGROUND

This matter involves an application by LGPC and OGS for a freshwater wetlands permit to apply SONAR® in four separate bays in Lake George in the Town of Bolton, Warren County. Eurasian Water milfoil ("milfoil"), a non-native plant, was first discovered in the Lake approximately 15 years ago. LGPC has spent several years in conjunction with other local groups investigating remedies to the further spread of milfoil in the Lake. It is undisputed that left untreated, milfoil has the potential to infest the entire Lake. SONAR® is an herbicide that is known to reduce and possible eradicate milfoil. The permit is requested so that LGPC/OGS can conduct a demonstration project to gauge the effectiveness of SONAR on the milfoil in the Lake in four test areas and to document the effects resulting to the Lake, it's vegetation and wildlife.

PROCEEDINGS

The APA determined that a hearing was necessary in this matter and issued a Notice of Public Hearing on August 15, 2001. Said Notice was published in the Environmental Notice Bulletin, an electronic publication of the New York State Department of Environmental Conservation ("DEC") and also in the Post Star on August 19, 2001. Notice of this hearing was mailed to all individuals listed in section 572.15 of the Agency regulations. Persons receiving the Notice by mail included the applicant, landowners within 500 feet of the variance site and certain governmental officials.

The public hearing commenced on August 30, 2001 at 1:00 p.m. in the Bolton Town Hall, Warren County. The hearing opened with a brief overview of the demonstration project given by Michael White, executive director of the LGPC. After the presentation, the members of the public who indicated a desire to give a statement were called upon to make their statements on the record. 18 speakers gave statements on the project, 15 of whom were in favor of the project. The common theme of those in favor of the project was that milfoil had been growing rapidly in the Lake for the past 15 years and despite all methods used to curb it, the problem has only worsened. The speakers voiced their support for the LGPC and emphasized that the demonstration project should go forward as soon as possible. The 3 speakers opposed to the project represented the following groups: The Adirondack Council, the Citizens Campaign for the Environment and the Resident's Committee to Protect the Adirondacks. All 3 voiced concerns about introducing an herbicide into the waters of Lake George and favored non-chemical means to control the spread of milfoil.

ISSUES CONFERENCE

After the completion of the afternoon session of the public hearing, the issues conference was begun. LGPC, APA and all those seeking party status were in attendance.

As stated above, four petitions seeking party status were timely served. 9 NYCRR section 580.7 entitled, "Intervention" allows for "... any person to seek to become a party to present evidence, cross examine witnesses, and otherwise participate in the public hearing." Section 580.7(5) details what must be included in the petition to meet the standards to be granted party status. Specifically, the petition shall "demonstrate that the petitioner has a material social, economic or environmental interest which is likely to be affected by the agency decision concerning the project."

There was no opposition to the petitions of Adirondack Council, Resident's Committee to Protect the Adirondacks, Lake George Agency/Coalition Of Lakes Against Milfoil, and Mr. Gabriels. The Gabriels petition is granted as the petitioner lives within 500 feet of the project site. Pursuant to the regulation of the APA, section 580.5, any landowner within 500 feet of any border of the property that is the subject of the proceeding is granted party status. As no opposition was voiced to the remaining 3 petitions, and all 3 petitions meet the standards of §580.7, the petitions for party status are granted.

ISSUES FOR ADJUDICATION

9 NYCRR section 580.3 gives the agency authority to limit the issues to be considered at the hearing. The parties have all proposed issues that they would like to be adjudicated at the hearing. While the offer of proof at the issues conference of such issues need not be so convincing so as to prevail on the merits, it's offer must amount to more than mere assertions or conclusions.

ADIRONDACK PARK AGENCY ISSUES

The APA first presented it's proposed issues for adjudication. The following issues were proposed:

  1. Proposed target concentrations and duration of treatment
  2. Impact on native species/ recolonization of those destroyed
  3. Site selection, how and why were sites chosen
  4. Water exchange rates between treatment areas and Lake
  5. Monitoring of SONAR during and after treatment, what is anticipated
  6. What is the objective of the demonstration project

LGPC indicated that it intends to present proof through expert testimony on all issues proposed by the APA and believes that the proof presented will support the project as proposed. The issues proposed by the agency are of such a nature as to go to the very core of the demonstration project. Each of the issues proposed relates to the fundamentals of the project, sites to be tested, dosage of the herbicide to be introduced into the water and the effects of the product as well as how those effects will be monitored. These are the key issues regarding this project and all warrant adjudication at the hearing.

RESIDENT'S COMMITTEE TO PROTECT THE ADIRONDACK ISSUES

The RCPA proposed 5 issues for adjudication:

  1. Impact on native plants
  2. Consideration of non-chemical alternatives
  3. Scientific veracity of the project with regards to planning and follow up
  4. Negative impacts to recreation and economy of the Lake George Basin that necessitate the use of SONAR®
  5. Public health issues

The first issue, impact on native plant species was addressed by the APA and is an issue that will be adjudicated. The issue was presented by the APA as going hand in hand with dosage. The APA is interested in determining the dosage that will result in the reduction of the milfoil at the test sites while preserving as much of the native plants as possible. The APA wants a definitive answer from the LGPC as to what is the plan for recolonization or reseeding of the native plants that are lost. As stated, this issue, as presented by the APA will be an issue for adjudication.

The RCPA takes the issue further and also proposes that the LGPC address how the project will protect the rare and threatened plants that are protected under State law. RCPA notes that New York Law protects certain rare and threatened species from being harmed. As noted by counsel for LGA/COLAM, Environmental Conservation Law section 9-1503 makes it a violation to destroy a protected native plant without the consent of the owner. OGS is the owner of the bed of the Lake and as co-applicant with the LGPC, it has requested to use SONAR® and presumably has consented to any damage to the plant species within it's ownership. This is not an issue to be adjudicated. RCPA also sought to expand the issue to include some future plan to prevent the recolonization of milfoil. This issue, while certainly important, is premature and should not be adjudicated at this time. The application is for a demonstration project. The future control of milfoil will no doubt be a key element of the long term plan. The impact on native plant species and the recolonization of those plants will be adjudicated but as to the rare or threatened species, that will not be adjudicated. Neither will the issue of recolonization of milfoil.

The second issue proposed by the RCPA is also one that is relative to the long term plan for milfoil control or eradication in the Lake as well as this demonstration project. RCPA is proposing that non-chemical methods be explored further as part of the review of the application for the demonstration project. It is agreed by all parties that non-chemical means have been used in the Lake over the years since milfoil was first discovered in the Lake. The LGPC/OGS application documents why the use of SONAR ® is requested. RCPA proposes to submit proof on this issue through Michael Martin who directs the non-chemical milfoil control project on Saranac Lake. RCPA stated that the non-chemical methods on Lake George were abandoned in the mid-1990's. LGPC disagreed that the non-chemical methods were abandoned and stated that mechanical harvesting, hand harvesting and benthic barriers were still being used and would continue to be used in other areas of the Lake during the project period and after. The APA noted that the application specifically states that the LGPC intends to use mechanical means as a follow up to any SONAR ® use.

Certainly all methods should be carefully explored in deciding how best to control milfoil in Lake George. It appears from the application that a long term plan will include a combination of methods, chemical and non-chemical, if the use of SONAR® is approved. RCPA states in it's petition for party status that "No clear justification for the use of SONAR® in Lake George has been established." The question then becomes, have non-chemical means been properly evaluated jointly with SONAR® to determine if chemicals should be introduced into the Lake, even in such a limited way as for this demonstration project.

I find this to be an issue that must be explored further at the adjudicatory hearing. RCPA has offered to present proof on this issue through the testimony of the person responsible for the Saranac Lake project. This issue should be explored and is an issue to be adjudicated.

The third issue proposed by the RCPA is monitoring. While this was addressed by the APA, again the issue, as proposed by RCPA differs. RCPA finds that the monitoring proposed in the application is insufficient. RCPA proposes that a 5 year monitoring plan be implemented with any demonstration project. RCPA states in the petition for party status that studies from other Lakes that have used SONAR have shown that certain dosages and concentrations have resulted in native species not recolonizing even as long as five years out. I have already determined that monitoring will be addressed at the adjudicatory hearing.

The fourth issue proposed by RCPA is the veracity of the scientific proof that milfoil has a negative impact on the community from both a recreational and economic standpoint. It seems unlikely that any person would argue that milfoil is beneficial to the Lake. It also seems unlikely that any person would argue that it is not disrupting the Lake in many ways. The RCPA acknowledged during the issues conference that it is proposing this issue only to put parties on notice that it intends to cross exam the applicant's witnesses on this issue and that it does not intend to offer any proof on this issue. Therefore, I deem the position of the RCPA to be that it was seeking approval to explore this on cross examination and does not wish to adjudicate it as a separate issue at the hearing. Therefore, it will not be adjudicated.

The fifth and final issue proposed by RCPA is the public health concerns from the use of SONAR®. The Environmental Protection Agency and the DEC have already approved the use of SONAR®. There are certain ingredients in SONAR® that have not been disclosed by the manufacturer. RCPA argues that these ingredients must be disclosed to evaluate whether the product can be safely used in the Lake. However, the EPA and DEC have already determined that the product is safe for use. It is not the duty of the APA to revisit this issue. First, the EPA and DEC have resources and specialized knowledge that make them best able to evaluate this. Second, it is not the role of the APA to second guess such determinations once made. The RCPA stated at the issues conference that it was not challenging the approvals of the EPA or DEC.

The petition of the RCPA states "The RCPA does not think that starting a process of deliberately introducing chemicals of unknown toxicity into the waters of the Adirondacks, where thousands of women of childbearing age will be drinking it, is reasonable." This statement, while being dramatic, is incorrect. The DEC and EPA have explored this product and determined it is safe for use in Lakes such as Lake George that supply drinking water. The labeling restrictions do limit the use of the product within one quarter mile of a water intake.

The question of the safety of SONAR has been reviewed by the EPA and the DEC, the two agencies with the resources and knowledge to examine this product and it's use. To challenge it now, in this forum would be inappropriate. This issue will not be adjudicated at the hearing.

ADIRONDACK COUNCIL ISSUES

The AC raised eight issues for adjudication.

  1. Concentration levels of SONAR®
  2. Number and location of treatment areas
  3. Monitoring
  4. Spread of milfoil by natural and human factors
  5. Long term plan and the use of non-chemical methods
  6. Public health impacts, including ingested water from Lake.
  7. One project site does poses a risk of failure as proposed due to the allowance of boater use despite labeling against such use
  8. Costs of alternatives to SONAR®

The issues were addressed for the most part through the other parties' petitions. Two issues were not addressed, ingestion of water from the Lake and the question of allowing boater access in one site during the project, contrary to labeling recommendations.

As for the water intake issue, the AC notes that the labeling restrictions for SONAR® state that it must not be used within a quarter mile of a water intake. The AC questions if the project sites identified meet that restriction. At the issues conference the AC could not offer proof of any water intakes within a quarter mile of the test sites. It indicated that it may explore whether there are intakes. The objection apparently resulted from wording in the application that was interpreted by the AC to mean that perhaps some summer residences may be affected as they are within a quarter mile. The AC has no proof of water intakes that are within the quarter mile. It has not even acknowledged that it intends to conduct an inventory to determine if there are in fact intakes. It shifts the burden to the applicant to conduct an inventory to prove no water intakes exist within the quarter mile restriction. The LGPC indicated that it did investigate whether any water intakes were present. First, the areas of the test sites are all located within the Town of Bolton and the water service is provided by the Town of Bolton. Second, letters were sent to all property owners within a half mile of the project site asking for objections to the project and advising owners that the project was proceeding on the basis that no individual or commercial potable water intakes were present. No response was received to the contrary.

The LGA/COLAM representative at the hearing indicated that it has members who reside in the project site areas and no one has objected to them either. Mr. Gabriels also confirmed through the LGA/COLAM rep that the people in the test area are on Town water.

I see no credible basis to pursue this matter and it will not be an issue for adjudication at the hearing.

The AC also proposed an issue that was not discussed at the issues conference, boater access being allowed in one of the test sites, contrary to labeling instructions. This is a matter that is part of the specifics of the demonstration project itself. It is no doubt an issue that can be addressed during the testimony of the applicants' witnesses. This is not a separate issue requiring adjudication.

Accordingly, the six issues proposed by the APA and the issue of non-chemical alternatives to SONAR® as proposed by RCPA shall be issues adjudicated at the hearing that will commence on October 15, 2001.

/s/
Molly T. McBride
Administrative Law Judge

Albany, New York
September 12, 2001

To: Service List, enclosed