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Girouard, Adrian - Ruling, January 11, 2001

Ruling, January 11, 2001

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1010

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

ADRIAN GIROUARD

DEC Project No. 5-1630-00093/00003

INTERIM DECISION

March 16, 2001

INTERIM DECISION

Introduction

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.

Procedural History

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

The Appeal

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.

Conclusion

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

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
STATE OF NEW YORK: COUNTY OF FRANKLIN
------------------------------------------------------------------

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
January 11, 2001

TO: Service List

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.

/s/
By: Gavin J. Donohue
Acting Commissioner

Dated: Albany, New York
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.

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