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New York State Office of General Services - Interim Decision, February 17, 1994

Interim Decision, February 17, 1994

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Application of THE NEW YORK STATE OFFICE OF GENERAL SERVICES for a Water Quality Certification
pursuant to Section 401 of the Federal Water Pollution Control Act, 33 U.S.C. 1341 and 6 NYCRR 608.7

Application No. 2-6500-00012/00001-9


February 17, 1994

Interim Decision of the Commissioner

This Interim Decision relates to the City of New York's ("City") appeal of Administrative Law Judge ("ALJ") Frank Montecalvo's December 21, 1993 ruling (the "Ruling") in the captioned matter. In the Ruling, he determined that the City had not raised a substantive and significant issue for adjudication regarding its contention that the testing measures required by the draft 401 Water Quality Certificate are inadequate.

In its appeal, the City argues that it has successfully shown that there is a substantive dispute about the equivalence in the pre-project sediment testing protocol proposed in the draft permit and the protocol which appears in a document entitled "Guidance for Performing Tests on Dredged Material Proposed for Ocean Disposal - December 18 ,1992" (a draft manual sponsored by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, New York District). However, this manual, by its terms, is only intended to apply to situations where dredged materials are subsequently disposed of in the ocean. Therefore, without any explanation as to why these testing protocols should be applied to a different situation, the City has not met its burden of coming forward [see In the Matter of Halfmoon Water Improvement District No. 1, Decision of the Commissioner, April 2, 1982)]. In essence, the City has only shown that the project doesn't meet a set of standards which don't apply to it anyway.

The City also argues that a substantive issue exists concerning whether post-project testing should be required. This question, however, is not whether there should be post-project testing (special condition #17 of the draft permit requires such testing), rather the question is whether more or different testing should be required. The City has not presented any basis to adjudicate this question. No issue is raised.

This matter is remanded to ALJ Montecalvo for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 17th day of February, 1994.


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