Thalle Industries, Inc. - Ruling, December 10, 2003
Ruling, December 10, 2003
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Application of THALLE
INDUSTRIES, INC., for permits to expand its
rock quarry mine in the Town of Fishkill,
Dutchess County
RULINGS OF THE ADMINISTRATIVE LAW JUDGE
ON PARTY STATUS AND ISSUES
(DEC Project No. 3-1330-00049-02001)
BACKGROUND AND BRIEF PROJECT DESCRIPTION
Thalle Industries ("the Applicant") proposes to expand its rock quarry mine located on the east side of Route 9 about 1.8 miles south of Interstate 84 in the Town of Fishkill, Dutchess County. The expansion would be onto 29 acres immediately east and south of the existing site. About 13.4 million tons of rock would be mined from this acreage in a four-phase sequence over an estimated period of 38 years.
The Applicant proposes to use a bench design with 25-foot-high faces and 20-foot-wide benches. A portable primary crusher would be located at the working face of the expansion area, and covered conveyors would be used to transport crushed stone back to the existing mineral processing area.
To move ahead with this project, the Applicant is requesting three permits from the New York State Department of Environmental Conservation ("the Department"):
- A mined land reclamation permit pursuant to Environmental Conservation Law ("ECL") Article 23, Title 27;
- A State Pollutant Discharge Elimination System ("SPDES") permit pursuant to ECL
Article 17, Titles 7 and 8; and - An air pollution control permit pursuant to ECL Article 19.
The mined land reclamation permit is required for the expansion itself. The SPDES permit is required in relation to the point discharge of stormwater into an unnamed tributary of Clove Creek at two locations within the northerly section of the existing mine, and the eventual relocation of a portion of an intermittent tributary of Clove Creek within the expansion area. The air pollution control permit, also referred to as an Air State Facility permit, would regulate air emissions from all sources at the site, including the Applicant's existing aggregate processing facility and asphalt plant.
The operations of the asphalt plant would not be affected under the proposed expansion. However, the Applicant has proposed the installation of a new portable primary crusher, powered by a diesel generator, at the working face of the quarry expansion and the use of a series of conveyor belts to move the crushed rock from the expansion area to the existing processing facility.
In conjunction with its mining permit application, the Applicant is requesting a variance from the minimum setback requirements of Section 422.2(c)(3)(iii) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR 422.2(c)(3)(iii)]. The variance request, dated August 31, 2002, is presented in the Draft Environmental Impact Statement (EIS) for this project, and is subject to review pursuant to 6 NYCRR 422.1(f).
The Applicant has agreed to limit facility-wide emissions from particulates (as PM-10), oxides of nitrogen (NOx) and carbon monoxide (CO) to less than 100 tons per rolling 12-month period. With these emission caps, the facility would not be a major stationary source requiring a federal air permit pursuant to Title V of the Clean Air Act and 6 NYCRR Subpart 201-6. The facility would instead be eligible for an Air State Facility permit pursuant to 6 NYCRR Subpart 201-5. Compliance with the emission caps would be monitored by limiting the aggregate plant's production to 2,142,000 tons per rolling 12-month period, limiting the asphalt plant's production to 1,200,000 tons per rolling 12-month period, and limiting the operation of the generator for the portable crusher to 6,000 hours per rolling 12-month period. The Applicant would certify annually that these limits have not been exceeded.
The Department is the lead agency for review of this project under the State Environmental Quality Review Act (SEQRA), whose requirements are set out in ECL Article 8 and 6 NYCRR Part 617. On April 15, 1998, the Department issued a Positive Declaration, having determined that the mine expansion would have a significant effect on the environment and that a Draft EIS should be prepared. A public scoping meeting was held on October 29, 1998. Based on the Applicant's subsequent modification of the project, an amended Positive Declaration was issued on July 24, 2000. Department Staff accepted a scope of issues dated April 5, 2001.
On July 30, 2003, the Department issued a notice indicating that agency staff had determined that the permit application was complete and that the Draft EIS had been accepted for review. The notice also announced the scheduling of both a legislative hearing and an issues conference pursuant to 6 NYCRR Part 624, the Department's permit hearing procedures.
The notice was published as a legal notice in the Poughkeepsie Journal on August 4, 5, 6, 7 and 8, 2003, and appeared in the Department's on-line Environmental Notice Bulletin on August 6, 2003. The Department also mailed copies of the notice to relevant state and local government officials and to individuals and private organizations that had expressed a prior interest in the project.
LEGISLATIVE PUBLIC HEARING
Pursuant to 6 NYCRR 617.9(a)(4) and 624.4(a), a legislative public hearing was held during the evening of September 9, 2003, with regard to the expansion application, the Draft EIS, and the draft permits that had been prepared by Department Staff. The hearing was held at the Fishkill Town Hall. About 75 people attended, and 16 members of the public gave oral statements. The hearing notice also offered an opportunity for people to provide written statements. Thirty-three statements were received, some by hand at the hearing and others by mail before and after the hearing. The hearing notice indicated that written statements postmarked no later than September 19, 2003, would be considered equally with oral statements.
Most of the speakers at the legislative hearing supported the project, as did most of those people and organizations that supplied written comments. Some commenters said they did not oppose the mine expansion, but requested more attention to particular environmental concerns.
The Town of Fishkill, through Christopher Colsey, its director of municipal development, offered its support for the project, arguing that the mine's expansion would be consistent with local land use regulations governing both mining in general and the use of the project site in particular. Mr. Colsey also wrote that, in relation to the standards of SEQRA, the expansion would yield potential socio-economic benefits for the town and region, while threatening no apparent unmitigated environmental impacts. Others offering support for the project included Local 137 of the International Union of Operating Engineers, the Construction Industry Council of Westchester and Hudson Valley, Inc., and the Westage Companies, a local real estate development firm. Support was also registered from various customers and business associates of the Applicant, many of whom praised Thalle for operating a neat, safe and well-managed facility.
In oral statements and letters, project proponents argued that the Thalle mine is an important provider of high-friction aggregates which make road surfaces less slippery. Proponents argued that a shortage of these materials in recent years has caused significant price increases for asphalt products used to resurface roads and bridges. They said that maintaining a local source of the materials would eliminate the need to truck them in from outside the region, and would help stabilize government road maintenance costs by ensuring competition in a business environment alleged to be dominated by national mining firms. The project is supported by the New York chapter of the Associated General Contractors of America, the largest statewide highway construction association in the state, and the New York Construction Materials Association, on behalf of aggregate consumers.
Project proponents also argue that the mine expansion would preserve local jobs and enhance real property tax revenues for the locality. They point out that visual impacts would be mitigated by top-to-bottom mining of the rock face, which would allow for quicker reclamation than is possible when mining proceeds from bottom to top. Proponents note that if the project is approved, the new benches would be wider than the existing ones, and the faces would be shorter, so that tree plantings would more quickly cover the exposed rock. Proponents also argue that approval of the project would lessen traffic impacts, since the resumption of mining would eliminate the current need to truck materials in for processing.
Opposing the project is Fishkill Ridge Community Heritage ("FRCH"), a citizens' group organized to protect Fishkill Ridge from mining and other industrial development that the group contends could endanger the viewshed and contaminate local water resources. About a mile west of the site, Fishkill Ridge contains a hiking trail with views of the existing quarry.
While they did not oppose the mine expansion, several commenters expressed particular environmental concerns that they said deserved more attention before permits are issued. For instance, the Fishkill Ridge Caretakers, a not-for-profit citizens' group formed to encourage responsible use of Fishkill Ridge, expressed concern about the location of bulk storage tanks and maintenance buildings close to an intermittent stream along the site's northern border, noting that the stream directs water to the Clove Creek Valley aquifer, a designated primary aquifer that supplies water to one of the Village of Fishkill's well fields located about 3,000 feet northwest of the Thalle quarry. The Fishkill Ridge Caretakers requested that the bulk storage facilities be moved a greater distance away from the stream to diminish the risk of a toxic substance spill entering the well field's recharge area.
Concerns about groundwater contamination were also expressed in a letter by hydrogeological consultants for the Village of Fishkill. The village points out that activities such as maintenance and fueling of site construction equipment or leaks and spills from such equipment could introduce petroleum hydrocarbons and solvents to the aquifer if these liquids drain onto the floor of the quarry. Therefore, the village has requested that any Department permit be conditioned to authorize quarterly site inspections by the village or its representative to verify that practices which could contaminate groundwater are not occurring, and to require quarterly sampling of the on-site sand and gravel well (used for dust control) to determine if groundwater is being degraded. Such conditions are now incorporated in the draft mining permit (Exhibit 7-A; see special condition 23), as is another, also requested by the village, requiring that Thalle maintain a Department-approved spill control and abatement plan for the project site.
Scenic Hudson appeared at the legislative hearing to describe its efforts to protect its property on Fishkill Ridge for public use and enjoyment, and to explain its role in the review of the project and the scoping of the Draft EIS. According to Scenic Hudson, the Thalle mine is a "visually dominant" feature of the landscape as viewed from Fishkill Ridge. Scenic Hudson said that it recognized the need to expand the quarry to allow for a different bench configuration that would better mitigate visual impacts. It added that the current expansion proposal is "significantly better" than one initially proposed by the Applicant, and that the Draft EIS is, for documents of its type, "substantial, thorough and well-crafted." At the time of the legislative hearing, Scenic Hudson was still negotiating with the Applicant over project changes that it felt would make the expansion even better from an environmental point of view. These negotiations resulted in a stipulation between the Applicant and Scenic Hudson that was subsequently presented to Department Staff, spurring several amendments and additions to Staff's draft mining permit.
Finally, letters of concern were received on behalf of two neighbors of the Applicant: Southern Dutchess Sand & Gravel, Inc., and Sour Mountain Realty, Inc., whose properties are on the west side of Route 9, across the road from the Thalle site.
Southern Dutchess Sand & Gravel is concerned about existing and potential future impacts on its property from stormwater originating on the Thalle property. Southern Dutchess contends that some of the runoff from the Thalle site drains under Route 9 and towards its property, and has caused problems for Southern Dutchess which are being rectified, with cooperation from neighboring property owners, as part of a pending application to modify the Southern Dutchess mining permit. Southern Dutchess suggests that the Department require Thalle to eliminate plans for the proposed diversion ditch around a portion of its property which is intended to reduce the amount of water that flows into the Thalle mine pit. According to Southern Dutchess, the diversion ditch creates more potential for damage to downstream property owners like itself.
Sour Mountain Realty is also concerned about runoff, complaining that an "illegal" discharge of stormwater from the Thalle site enters its property after it drains under Route 9. Sour Mountain claims that the stormwater has caused flooding on its property and enlarged a wetland there. Sour Mountain argues that the Draft EIS fails to address adverse off-site impacts of Thalle's stormwater discharge, or discuss alternatives to the discharge that would not adversely affect the Sour Mountain property.
ISSUES CONFERENCE
Pursuant to 6 NYCRR 624.4(b), an issues conference was held on September 30 and October 1, 2003, at the Fishkill Town Hall, followed by a visit to the project site and vicinity on October 2, 2003. The purpose of the issues conference, over which I presided, was to determine party status for any person or organization that had properly filed, and to narrow and define those issues, if any, which would require adjudication concerning the expansion application, the Draft EIS, and the terms of Department Staff's draft permits. Participating at the conference were representatives of the Applicant, Department Staff, and two prospective intervenors.
The Applicant, Thalle Industries, was represented by Kevin Brown and Gregory Brown, Esqs., of Devorsetz, Stinziano, Gilberti, Heintz & Smith, PC, of Syracuse, New York.
Department Staff was represented by Jonah Triebwasser, deputy regional attorney, of the Department's Region 3 office in New Paltz, New York.
Two timely petitions for full party status were received.
One petition (Exhibit No. 9) was received from Christopher A. Amato, Esq., of Albany, New York, on behalf of Fishkill Ridge Community Heritage ("FRCH"), a project opponent. Another petition (Exhibit No. 10) was received from Ronald C. Blass Jr., Esq., of Van DeWater and Van DeWater, LLP, of Poughkeepsie, New York, on behalf of the Town of Fishkill, a project supporter. Mr. Amato and Mr. Blass appeared at the issues conference on behalf of their respective clients.
Also appearing at the conference were two attorneys on behalf of Scenic Hudson, Inc. and the Scenic Hudson Land Trust, Inc.: John W. Caffry, Esq., of Glens Falls, New York, and Warren P. Reiss, Esq., Scenic Hudson's general counsel, whose office is in Poughkeepsie, New York.
Scenic Hudson did not file for party status, but was allowed to participate at the issues conference given its role in negotiating a stipulation with Thalle (Exhibit No. 12-A) that prompted several changes to Department Staff's draft mining permit. Many of these changes relate to issues that FRCH had proposed for adjudication.
The record of the issues conference consists of transcripts of the proceeding as well as various marked exhibits, many of which are cited in these rulings. (A list of the issues conference exhibits is attached to these rulings as Appendix "A".) The application documents were not marked separately as exhibits, but are considered incorporated to the record as referenced by the conference participants. The relevant application documents are contained in five binders: Volume 1 (which includes the actual permit applications and the text of the Draft EIS), Volume 2 (which includes the mining, reclamation and operational plan maps), Volumes 3 and 4 (which contain various appendices to the Draft EIS), and Volume 3-A (which contains stormwater calculations). A new mine plan map, to supersede the one in Volume 2, was received during the issues conference as Exhibit No. 22. The new map adjusts the southern boundary of the expansion area to further mitigate visual impacts.
At the start of the issues conference, Department Staff's draft permits were marked as exhibits. The mining permit was marked as Exhibit No. 7-A, the SPDES permit as Exhibit No. 7-B, and the air permit as Exhibit No. 7-C. The draft mining permit was amended on September 29, the day before the start of the issues conference, based largely on changes proposed by Scenic Hudson and accepted by the Applicant. The amendments are set out in bold type among the permit's special conditions, and are intended to confirm certain understandings of the Applicant and Scenic Hudson that are embodied in a stipulation they entered into during the week before the conference. The Applicant and Scenic Hudson asked Department Staff to join in the stipulation, but Staff counsel declined based on a perceived lack of authority. Staff instead treated the stipulation as a public comment suggesting certain permit conditions which Staff then adopted to the extent it deemed such conditions appropriate. Because Staff's amendments are satisfactory to Scenic Hudson, that group has not filed to intervene in this proceeding and does not oppose issuance of the requested permits.
Apart from the amendments that are typed onto the face of the draft mining permit, I have written certain additional amendments in pen, which are intended to correct typographical errors that were pointed out during the conference and to incorporate certain changes that Staff inserted during the conference discussion. Also, Exhibit No. 21 reflects new language that should be read as a substitute for the first sentence of special condition No. 5 of the permit. The language, which is acceptable to the Applicant, concerns construction of a chain link fence on the perimeter of the expansion area, a matter of public safety that is unrelated to any proposed issue for adjudication.
Department Staff has tentatively determined that the proposed project meets all criteria for the approvals sought by the Applicant, provided the project goes forward consistent with the terms of Staff's draft permits. The Applicant does not oppose any of the permit terms. For that reason, there are no issues separating Department Staff and the Applicant, and the only issues that could warrant adjudication are those proposed by FRCH, the only project opponent to file for party status.
At the outset of the issues conference, FRCH requested that the conference be adjourned for a week on the ground that it was premature, given the many last-minute changes to the draft mining permit, and their bearing on the expansion proposal as well as the issues proposed in the group's petition. FRCH requested additional time to evaluate the revised permit language and to discuss its proposed issues informally, outside the conference record, with the Applicant and Department Staff.
This request was opposed by the Applicant, which said that the changes to the draft permit reflected only minor changes to the project, and that the negotiations that led to them are normal components of the permit hearing process. The Applicant faulted FRCH for not participating in the scoping of the Draft EIS, given the group's expressed concerns, and charged that FRCH became involved in this hearing only after it became clear that Scenic Hudson would resolve its concerns with the Applicant. According to the Applicant, FRCH filed for party status in an attempt to obstruct the permit review process and prevent the project from going forward at all; therefore, it said, negotiations with FRCH would be futile. Department Staff said that, to avoid possible prejudice to FRCH, it would not object to a brief adjournment of the issues conference, but added that it considered its permit revisions to be minor, and suggested that, given the Applicant's attitude toward FRCH, it was unlikely that negotiations between the two would be productive.
After all the participants had an opportunity to be heard, I denied the request for adjournment of the issues conference, pointing out that half of the issues proposed in FRCH's petition were unaffected by the recent permit revisions, and therefore the first day of the conference could be used to discuss those issues, reserving the remainder of the issues to the next day so FRCH would have more time to reconsider its positions. I noted the difficulty in rescheduling the conference given the other commitments of the participants' attorneys and experts, adding that an adjournment for further negotiations generally requires a showing of interest by all participants, which was not present here given the Applicant's expressed desire that the conference proceed without delay. Finally, I noted that the main purpose of the conference would be to get the Applicant's and Department Staff's responses to the issues proposed in FRCH's petition, and that until those responses were set out in the record, it could not be determined whether an extra allowance of time should be given to FRCH, perhaps for a written post-conference submission.
At the outset of the issues conference, on September 30, FRCH requested that a discussion of one of its proposed issues, concerning timber rattlesnakes, be deferred until October 2, so that FRCH's expert, Dr. William S. Brown, could attend. I denied the request, which meant that the rattlesnake issue was heard in Dr. Brown's absence, but with reference to his claims as set out in FRCH's petition. I denied the request to defer the issue's discussion on the ground that it was not necessary that the participants' experts be present, noting that the issues conference is designed to entertain offers of proof and not to receive testimony. I also pointed out the difficulty in juggling the schedule of issues to accommodate all the participants' concerns about having their experts available. As it was, Department Staff had made its snake expert, Dr. Theodore Kerpez, available on September 30 to assist Staff in responding to the FRCH petition, and FRCH's request to postpone the discussion was not made until after the conference started, which complicated issues of schedule adjustment.
The issues conference was scheduled in the hearing notice to begin on September 30 and continue throughout that day and on successive days through October 3, as necessary. As it turned out, the conference took only two days to complete, allowing the third reserved day, October 2, to be used for a site visit. At the conclusion of the conference on October 1, FRCH again requested that we reconvene on October 2 to hear from its expert, Dr. Brown, regarding the timber rattlesnake issue. FRCH counsel said that Dr. Brown was prepared to address certain "technical" issues that had arisen in the earlier discussion of this issue, and to provide some newly discovered information that had come to light since FRCH filed its petition. Such information was alleged to consist of sightings of timber rattlesnakes on the east side of Route 9 in the vicinity of the Thalle quarry.
The Applicant objected to reconvening the conference, asserting that all claims of rattlesnake sightings should have been part of FRCH's petition, and that entertaining new claims at the end of the conference would be an "ambush" to which the Applicant was not prepared to respond. Because FRCH itself had not yet fully investigated the claims, and also because the Applicant and Department Staff could not make their experts available on October 2, I decided to close the conference record while allowing FRCH to make a subsequent submission after its investigation was completed, to which the Applicant and Department Staff would have an opportunity to respond.
After the conference, FRCH's counsel and president attempted to verify the sightings and secure eyewitness statements. By papers dated October 20, 2003, which are discussed further below, FRCH moved to supplement its petition on the timber rattlesnake issue. I afforded the Applicant and Department Staff an opportunity to respond to FRCH's submission, which they did in separate papers dated October 28, 2003. In a memorandum of October 22, 2003, I said the Applicant's and Department Staff's responses should address the merits of FRCH's claims as well as their timing (in other words, whether there is a demonstration of "good cause" for the submission of the new information after the filing deadline, with reference to the standard in 6 NYCRR 624.5(c)(2)(i) for late-filed petitions). Because FRCH has the burden of persuasion that any issue exists and that its submission should not be considered time-barred, it was afforded an opportunity to reply to the Applicant's and Department Staff's submissions. FRCH submitted a timely reply memorandum dated October 31, 2003, which was received at my office on November 3, 2003.
PROPOSED ISSUES FOR ADJUDICATION
Fishkill Ridge Community Heritage ("FRCH") proposes various issues for adjudication which it says could result in denial of the requested permits, major modifications to the proposed project, or the imposition of significant permit conditions in addition to those in the most recent draft permits. These issues are set out in FRCH's petition for party status (Exhibit No. 9). FRCH is seeking to supplement its petition with regard to one of its issues, which concerns possible use of the project site by the timber rattlesnake, a species deemed threatened in New York State. FRCH's motion to supplement its petition, dated October 20, 2003, is discussed below, along with the objections of the Applicant and Department Staff.
FRCH's petition for party status identified eight issues that it said warranted adjudication. During the course of the issues conference, some of these issues were withdrawn in whole or in part after discussions on and off the record with the Applicant and Department Staff. Issues withdrawn in their entirety concerned traffic impacts, visual and aesthetic impacts, noise impacts, and erosion and sediment control. Also withdrawn were certain sub-issues under the broad categories of air quality impacts and stormwater management. These rulings contain no further discussion of the issues that were withdrawn in their entirety, as rulings on these issues are unnecessary. As for the issues that were partially withdrawn, the ruling discusses the remaining claims of FRCH.
Potential Impacts to Timber Rattlesnakes
Proposed Issue: FRCH says that given the suitability of site habitat for timber rattlesnakes, and the proximity of the site to active dens of this threatened species, it is possible that timber rattlesnakes inhabit or use the site, particularly in summer, and that expansion of the mine would constitute an illegal "take" of the species under the New York Endangered Species Act [ECL Section 11-0535].
FRCH dismisses the Applicant's site surveys finding no evidence of timber rattlesnakes, arguing that they were generalized surveys of vegetation and wildlife that did not target this species in particular, and were not conducted by someone specially trained in locating the snakes and their habitat, which is especially important since the snakes are generally very well camouflaged. FRCH also argues that field surveys conducted on behalf of the Applicant did not cover the entire acreage that is now proposed for the mine's expansion, given changes in the project over the years.
FRCH argues that a new survey focused on timber rattlesnakes and their denning sites should be performed during the period between late April and mid-October, when the snakes are most active. FRCH says that since the last survey was conducted by the Applicant in November 2000, it is possible that timber rattlesnakes from active dens on Fishkill Ridge may have migrated onto the project site and established new dens there.
According to FRCH, accurate surveys for the presence of timber rattlesnakes are critical because members of this species are especially sensitive to mining-induced vibrations, blasting that can compromise their den sites, and mining that can destroy or adversely modify their habitat. FRCH points out that SEQRA requires that impacts on endangered or threatened species must be addressed, and that SEQRA findings cannot be made in the absence of a thorough and up-to-date evaluation of the presence or absence of timber rattlesnakes on the project site. FRCH requests such an evaluation in the context of a supplemental EIS that would be developed by the Applicant.
Background: According to Department regulation [6 NYCRR 182.6(b)(5)(v)], the timber rattlesnake is a "threatened" species and therefore deserving of special protection. As noted in the Draft EIS, field studies were conducted in the proposed mine expansion area to identify vegetation and wildlife, and to assess the area as potential timber rattlesnake habitat. The surveys were performed by Roy Slack, a zoologist working as a consultant to the Applicant, on May 7, May 8, June 4, June 5 and September 18, 1996; May 25 and May 26, 1999; and November 9, 2000. [Mr. Slack's resume is Exhibit No. 15 and his report, dated November 2000, evaluating the possibility that timber rattlesnakes inhabit the project site, is Appendix 8 of the Draft EIS, contained in Volume 3 of the document.]
The Draft EIS reports that on each of the site visits, observers looked specifically for timber rattlesnakes or any sign of rattlesnake use. According to the Draft EIS, quarry personnel were also interviewed to determine if timber rattlesnakes had ever been observed on or near the property, people associated with adjacent properties were contacted to determine if snakes had been observed on those properties, and several reports prepared by other consultants regarding timber rattlesnakes on nearby properties west of U.S. Route 9 were reviewed. [Draft EIS, pages 45 and 46.]
As discussed in the Draft EIS, the issue of timber rattlesnakes was considered in relation to denning, transient and summering habitat.
- - Denning Habitat
According to the Draft EIS, denning habitat consists of rock faces, ledges and outcrops, as well as talus slopes where crevices are available for snakes to spend the winter below the frost line. Den sites are usually located on southerly facing slopes within deciduous and mixed forest cover, although dens on west-facing slopes have been reported. Although the Draft EIS concedes that there are known den sites on Fishkill Ridge within one mile to the west and southwest of the project site, no timber rattlesnakes were observed during the Applicant's on-site surveys. The Draft EIS states that during these surveys, rocky areas on the property were searched for shed skins of snakes and for crevices that might serve as den sites, and that no skins were found and no suitable denning crevices or holes were noted, nor was there any evidence of matted compressed leaf litter (often found at den entrances) at the base of any rocks or ledges on the property. The Draft EIS concludes that there are no timber rattlesnake dens in the proposed mine expansion area because the slopes there are primarily westerly-facing (not southerly-facing, where dens are more common), tree canopy cover is near 100 percent in most of the area (canopy cover at den sites allows for penetration of sunlight to the forest floor), and thorough searches during the spring and early summer of 1996 and again in the spring of 1999 produced no evidence of any dens or denning habitat. [Draft EIS, page 46.]
- - Transient Habitat
According to the Draft EIS, transient habitat consists of areas through which timber rattlesnakes pass on their way between a den site and summer habitat. The Draft EIS concedes that rock slabs and outcrops, fallen logs and leaf litter are all present at the site and could provide cover for transient snakes. However, as noted above, during searches of the project site, neither timber rattlesnakes nor their shed skins were found. The Draft EIS points out that if timber rattlesnakes regular passed through the Thalle property, personnel working there should have seen at least one snake, noting also that snakes use roughly the same routes year to year when moving between dens and summering habitat. According to the Draft EIS, the Thalle quarry manager, a 16-year employee, confirmed that no timber rattlesnakes had been observed or reported at the existing quarry, in the proposed expansion area, or in any other area directly adjacent to the quarry on the east side of Route 9. [Draft EIS, page 47.]
The Draft EIS emphasizes that in order for any timber rattlesnake from the known den sites along Fishkill Ridge to access the quarry or the expansion area, it would have to cross Route 9, a busy two-lane road. According to the Draft EIS, considering the level of traffic on this section of the highway, it is very doubtful that any snake could survive such a crossing, much less survive the crossing twice annually for year after year. Any such snake also would probably have to pass through the active quarry on the west side of Route 9 (identified during the issues conference discussion as the Southern Dutchess quarry) and through the existing Thalle quarry to reach much of the expansion area, the Draft EIS states. This scenario, the Draft EIS concludes, seems highly unlikely and would be impossible as an event that occurs each spring and fall for snakes among the Fishkill Ridge population. [Draft EIS, page 47.]
- - Summering Habitat
According to the Draft EIS, summering habitat, which is particularly important for feeding and mating, consists of areas away from the den sites where adult males, non-gravid adult females and juvenile rattlesnakes spend the period between June and September. The Draft EIS states that there are no obvious factors that would entirely eliminate the forested areas of the project site from being summer habitat, and that the northern part of the site contains shrub cover that could also be suitable for summering timber rattlesnakes. However, the Draft EIS concludes that based on the lack of observations by quarry personnel, survey biologists and users of Fresh Air Fund lands immediately to the east of Thalle's property, no such snakes summer at or near the site. In addition, the Draft EIS points out that the 29 acres of the expansion area represent a small portion of the available forested habitat that currently exists on the east side of Route 9. According to the Draft EIS, removal of existing habitat for the mine expansion would have relatively little or no effect upon the total timber rattlesnake habitat that is available locally. Also, the Draft EIS cites a study by Dr. Brown, FRCH's proposed expert, indicating that blasting with dynamite at a known den site in Essex County, New York, proved to be an unsuccessful method of eliminating timber rattlesnakes. From this study, the Draft EIS concludes, mining adjacent to potential rattlesnake habitat would appear to have little possibility of significantly impacting the species. [Draft EIS, pages 47 to 49.]
During the issues conference discussion, counsel for the Applicant conceded that while Mr. Slack's 1996 surveys, all of which were targeted to timber rattlesnakes, did not encompass the entire mine expansion area, subsequent surveys in 1999 did. The Applicant concedes that the survey in November 2000 occurred outside the period when timber rattlesnakes are active, which according to a Department fact sheet (Exhibit No. 13) is between late April and mid-October. However, the Applicant asserts that even in November, one would still see evidence of dens or suitable denning habitat. The Applicant says that even if, as Dr. Brown, FRCH's expert claims, a timber rattlesnake generally migrates 1.3 to 2.5 miles from its den each summer, the route to the Thalle property from a known den on Bald Hill, a mile away on Fishkill Ridge, is too hazardous to conclude that snakes use it from year to year. In light of its surveys and the absence of sightings from any source of timber rattlesnakes on Route 9 or on the east side of the highway at or near the Thalle property, the Applicant concludes that claims that its property may be critical habitat for the species are merely speculative, and insufficient to require further investigation.
As a precaution in the event that any timber rattlesnake may cross Route 9 and enter the project site, the Draft EIS indicates that educational materials would be posted to inform employees about the appearance, natural history, and protected status of the snake. The information, directing people not to kill, injure or harass any snakes they observe, would be readily available to both employees and other individuals using the facility. [Draft EIS, pages 149 and 150.] According to special condition No. 1 of the draft mining permit (Exhibit No. 7-A), mining and reclamation are to be conducted in accordance with the Draft EIS. This elevates the Applicant's plan to inform and educate its employees to a duty enforceable by the Department, should the permit be issued.
Position of Department Staff: Staff agree with FRCH that, viewed solely on the basis of proximity, the 29-acre Thalle expansion area lies within the range of summer migration of timber rattlesnakes that den on Fishkill Ridge. However, Staff also agree with the Applicant that it is extremely unlikely that the snakes actually summer in this area, because to reach it they would have to cross Route 9 and, most likely, one or both of the existing quarries, which belong to Thalle and Southern Dutchess. The hazards of the route to the expansion area are too great, Staff contends, especially for creatures that are accustomed to taking the same route year after year. Staff points out that during the Applicant's surveys of the project site, no timber rattlesnakes were observed, no shed skins were found, and no suitable denning crevices were located.
Dr. Theodore Kerpez, the Department's Region 3 wildlife manager, acknowledged that the expansion area provides suitable transient and summering habitat for timber rattlesnakes. However, he added that any other wooded area would have the same values, and the key issue is whether snakes actually use the area. Based on the Applicant's surveys, which were conducted not only in November but during months such as May, June and September, Dr. Kerpez concludes they do not. According to Dr. Kerpez, timber rattlesnakes tend to be found on rocky exposed outcrops, and such outcrops are not apparent at this site. Dr. Kerpez's competence as an expert with regard to rattlesnake behavior and ecology was acknowledged by counsel for FRCH, though FRCH disagrees with his conclusions in this case.
Supplemental Information: After the issues conference, by a submission dated October 20, 2003, FRCH moved to supplement its petition on this issue. The submission includes six affidavits. Two affidavits - - one from Mr. Amato, FRCH's counsel, and another from Ann LaGoy, FRCH's president - - describe their recent investigation of alleged rattlesnake sightings near the Thalle mine. Another two affidavits - - from William Wolf and Gino Caprio, employees of a tree trimming service - - recount their observations of a dead rattlesnake that was allegedly found during the summer of 2003 along the east side of Route 9, a quarter of a mile from the Thalle property. An affidavit of Dr. Edwin McGowan, a timber rattlesnake expert, explains a rattlesnake survey he did on May 11, 2000, on property north of the Thalle mine. Finally, an affidavit of Dr. William Brown, FRCH's consultant, states that, based on information provided in the other affidavits, there is "a reasonably high probability" that there are one or more active timber rattlesnake dens in the vicinity of the Thalle mine, that such den sites could be subject to structural damage from mine blasting, and that snakes from these dens could migrate into both the existing quarry and the proposed expansion area.
Ms. LaGoy's affidavit recounts reports of live rattlesnake sightings near the Thalle mine, on the east side of Route 9, obtained by her in the course of attempting to locate the tree trimming service employees. One man, identified as James Holdam, reportedly told Ms. LaGoy that, about one year ago, he saw a rattlesnake by his mailbox. Another man, Joseph Gray, reportedly told Ms. LaGoy that, about four to five years ago, he saw a rattlesnake on a large rock at his mother's residence. According to Ms. LaGoy, Mr. Holdam was unwilling to provide a written statement concerning his rattlesnake sighting, and Mr. Gray did not appear for a meeting Ms. LaGoy had scheduled with him to obtain his affidavit, and did not respond to her subsequent phone calls.
Mr. Amato's affidavit also recounts a report of a potential rattlesnake sighting that was passed along to him after the issues conference by Randy Stechert, an independent herpetological consultant. According to Mr. Amato, Mr. Stechert informed him that in or about 1996, Mr. Stechert had been contacted by a Fishkill resident who said he had observed a rattlesnake in a junked car at an automobile junkyard north of the Thalle mine. Mr. Stechert reportedly told Mr. Amato that he found the report to be credible, but added that he did not recall the name or address of the eyewitness.
Applying a standard governing late-filed petitions for party status [6 NYCRR 624.5(c)(2)(i)], FRCH argues that there is "good cause" for it to be permitted to supplement its prior submission on the timber rattlesnake issue. First, it asserts, the newly-produced information did not come to FRCH's attention until after the issues conference had already commenced. FRCH claims that once the information came to its attention, expeditious efforts were made to locate and contact potential witnesses, verify and evaluate the credibility of the information and, where appropriate or possible, obtain sworn statements.
FRCH also argues that the receipt of the supplemental information will not significantly delay the proceeding, since the information was provided before issues and party status rulings were made. Moreover, FRCH stresses, the timber rattlesnake issue was raised in its initial petition, so the receipt of the additional information would not prejudice the Applicant or Department Staff.
Finally, FRCH argues that its supplemental information would materially assist in determining whether the timber rattlesnake issue has been adequately addressed in the Draft EIS. According to FRCH, the new information provides prima facie evidence of the possible presence of a timber rattlesnake den site in close proximity to the Thalle project site, and/or the use of areas on or near the project site by snakes migrating from one or more of the active den sites that are on the west side of Route 9.
Responses to Supplemental Information: Pursuant to a schedule I established by memorandum dated October 22, 2003, the Applicant and Department Staff were each afforded an opportunity to respond to FRCH's motion to supplement its petition. Timely submissions from both parties, dated October 28, 2003, were received.
According to both the Applicant and Department Staff, FRCH's motion to supplement its petition for party status should be denied on the ground that FRCH has not demonstrated "good cause" for the late filing of its new information. As argued by the Applicant, the so-called new offers of proof all involve claims long pre-dating the issues conference and FRCH's initial filing: three alleged rattlesnake sightings (one a year ago, one from four to five years ago, and one from 1996), results of a May 2000 survey at a neighboring property, and a dead snake found on the roadside in July or August 2003. Given the age of the information, the Applicant asserts that nothing prevented FRCH from unearthing it sooner so that it could be included in its original petition. According to the Applicant, if good cause for delay is simply failure to investigate until after the issues conference begins, then there is endless potential for abuse of the hearing process by intervenors seeking to hold up permit issuance.
Department Staff make a similar argument based on the language of 6 NYCRR 624.4(b)(1), which provides that at the ALJ's discretion, the issues conference may be reconvened at any time to consider issues based on new information upon a showing that such information was not "reasonably available" at the time of the issues conference. According to Staff, the information that FRCH now seeks to interpose was reasonably available at the time of the issues conference and could have been presented there had FRCH properly prepared for the conference and exercised due diligence by conducting a full investigation before the filing deadline for petitions for party status.
The Applicant and Department Staff challenge the content as well as the timing of FRCH's supplemental submission. Even when it is viewed against the information in FRCH's original petition, they claim there is no substantive and significant issue regarding Thalle's ability to comply with the state's Endangered Species Act. The Applicant contends that the supplemental submission consists of speculation in lieu of facts, as well as unsworn claims, hearsay upon hearsay, and anonymous attributions. The Applicant's submission includes an affidavit from Roy Slack which details his experience conducting surveys for timber rattlesnakes at this site and elsewhere. The submission also includes affidavits from Bernard Ruf, director of the Sharpe Reservation, and Peter Zalys, owner/operator of Double Z Motors, confirming a lack of rattlesnake sightings on their properties, both of which adjoin the Thalle mine.
Discussion: Consideration of this proposed issue requires addressing not only the adequacy of FRCH's offer of proof but the timing of its supplemental submission, which was received after the issues conference ended. FRCH has not demonstrated good cause for this late filing, and therefore its motion to supplement its petition could be denied. On the other hand, FRCH's supplemental submission, along with the responses to that submission by the other parties, provide a better, more comprehensive record on which the Department may determine whether an issue exists or further study is required. Therefore, the motion to supplement is granted, and all the parties' post-conference submissions have been considered in the context of the pre-existing record, which includes FRCH's initial petition, the other conference exhibits, the conference transcript, and the Draft EIS. Whether or not the post-conference submissions are taken into account, FRCH has not met its burden of persuasion that an issue exists as to whether the mine expansion would constitute adverse modification of timber rattlesnake habitat and, therefore, amount to an illegal "take" of the species under New York's Endangered Species Act. Furthermore, additional site investigation is not necessary to resolve this issue.
- - Adequacy of Offer of Proof
FRCH's offer of proof addresses the possibility that timber rattlesnakes inhabit or use the project site, linking that possibility to the legal argument that habitat interference may constitute a taking of the species under New York's Endangered Species Act [ECL 11-0535]. FRCH's legal argument is derived from State v. Sour Mountain Realty Corp., 276 A.D.2d 8 (2nd Dept., 2000). That case involved Sour Mountain Realty's erection of a four-foot-high, 3500-foot-long fence to keep timber rattlesnakes from a den discovered about 260 feet from its property line from entering its 213-acre site, on which Sour Mountain intended to conduct mining operations. The Department went to court to permanently enjoin Sour Mountain from continuing to use the snake fence. The State Supreme Court granted the Department's motion for a preliminary injunction and directed Sour Mountain to remove the fence. The Appellate Division affirmed the lower court order, concluding that interference with the snake's habitat may constitute a prohibited "taking" under the state statute.
FRCH maintains that a reliable survey for timber rattlesnakes at the Thalle project site is critical because of the site's proximity to known active dens, including the one addressed in the Sour Mountain litigation, and because of the site's suitability as transient and summering habitat for timber rattlesnakes generally, which is acknowledged by the Applicant and Department Staff. Though FRCH challenges the adequacy of the Applicant's site work to date, I do not agree with its criticisms. As outlined above, numerous surveys have been conducted on the Applicant's behalf, over the course of several years. These surveys, coupled with statements from Thalle's quarry manager and individuals associated with adjacent properties, provide a reliable basis for concluding that, regardless of the suitability of site habitat for timber rattlesnakes, no snakes actually use the area of the proposed mine expansion.
FRCH offers particular criticisms of the Applicant's surveys, each of which are addressed below:
- - Survey Focus
FRCH argues that Thalle's surveys were only general wildlife surveys undertaken to establish the general flora and fauna inhabiting the project site, and were not specifically undertaken for the purpose of identifying timber rattlesnake habitat or searching for members of the species. In fact, as Roy Slack writes in his November, 2000, report (Appendix 8 to the Draft EIS), the field studies done in 1996, 1999 and 2000 had two purposes: (1) to identify the vegetation and wildlife that occur in the mine expansion area, and (2) to assess the area as potential timber rattlesnake habitat. On each of these site visits, observers specifically looked for timber rattlesnakes or any sign of rattlesnake use. As noted in his affidavit of October 28, 2003, Mr. Slack looked specifically for denning, transient and summering habitat, evaluating crevices and rock slides, fallen logs and dense shrub cover on the site. Barbara Reuter of the Environmental Collaborative assisted with all aspects of the field surveys. She investigated the site's vegetative and wetland resources, but also observed for timber rattlesnake habitat and any evidence of the snakes themselves.
- - Survey Timing
FRCH argues that all of Thalle's surveys were conducted either too early (May and June) or too late (September and November) to provide an adequate opportunity to observe snakes on the project site. However, as Mr. Slack states in his affidavit, the earlier dates were chosen to coincide with the spring emergence of the timber rattlesnake (which occurs in May) and the subsequent movement to summering habitat (which occurs in late May and early June). According to the Department fact sheet (Conference Exhibit No. 13), timber rattlesnakes are not active after mid-October, which means that at the time of the most recent survey (November 9, 2000) the snakes would have returned to their dens. Mr. Slack acknowledges that he did not anticipate seeing timber rattlesnakes in November. The November survey, he says, was performed primarily to inventory forest habitat characteristics and to complete a search for possible denning and summering areas. As part of this search, Mr. Slack looked for evidence of snakes such as skins and matted leaves around crevices and rock slabs.
Because the most recent survey was performed on November 9, 2000, FRCH also argues that a more current survey is necessary to address the possibility that over the last three years timber rattlesnakes from nearby active dens have migrated onto the project site to establish new dens. I disagree. Although the site contains suitable transient and summering habitat, it does not contain suitable denning habitat, as discussed in the Draft EIS. Also, the only known dens within traveling range of the project site are on the west side of Route 9, and it is very doubtful that a snake from those dens could survive the road crossing necessary to access the expansion area. In fact, FRCH's affidavits about a dead rattlesnake found along the roadside during the summer of 2003, a quarter mile from the Thalle property, tend to underscore the hazard presented by vehicle traffic. Finally, there are quarry operations - - both Thalle's existing quarry, and another operated by Southern Dutchess - - between the known dens and much of the expansion area, further diminishing the possibility of any snake migration.
- - Survey Comprehensiveness
FRCH points out that Thalle's rattlesnake surveys did not all encompass the same area of study or the entire area of the expansion as currently configured. As confirmed in Mr. Slack's affidavit of October 28, 2003, the May and June, 1996, surveys were restricted to a 20-acre expansion area then owned by the Fresh Air Fund and adjacent lands included in the existing quarry, as illustrated in Exhibit "B" to the affidavit. The evaluated acreage included all currently proposed Phase I and Phase II project areas and nearby lands up to 600 to 800 feet north of those areas. Subsequently, the Phase III and Phase IV areas on the southern boundary of the quarry were added to the mine plan, and the newly configured 33-acre project area, as then proposed, including all of the presently proposed Phase I, Phase II, Phase III and Phase IV areas as well as additional area to the north, were evaluated during the surveys done in May of 1999. (This survey area is illustrated in Exhibit "C" to Mr. Slack's affidavit.) Because the 1999 surveys encompassed the entire expansion area as now proposed, even if the 1996 surveys did not, there is no defect with regard to overall survey comprehensiveness.
- - Surveyor Background
FRCH argues that Mr. Slack has no pertinent expertise or qualifications in timber rattlesnake research, at least according to his resume which was received as Exhibit No. 15. Any concern about Mr. Slack's background is adequately addressed by his affidavit of October 28, 2003. According to the affidavit, Mr. Slack holds both B.S. and M.S. degrees in zoology and has conducted ecological studies in New York State for over 28 years, first with Terrestrial Environmental Specialists in Phoenix, New York, and then as a self-employed wildlife ecologist since April 1991. His first experience searching for timber rattlesnake dens dates back to 1967, and as a graduate student he assisted in searches for timber rattlesnakes in Oklahoma. Mr. Slack has performed searches for timber rattlesnakes in relation to several projects in New Jersey, including the proposed Morris County landfill and several development sites in southern New Jersey. He also surveyed for timber rattlesnakes and their habitat at Sterling Forest in Passaic County, New Jersey, in 1991 and 1992.
In 1994, Mr. Slack searched for rattlesnakes and evaluated potential rattlesnake habitat for a proposed Rockland County, New York, recycling facility. In the last five years, he has performed wildlife surveys, searching for timber rattlesnakes not only at and near the Thalle site but at nearly a dozen other sites in eastern New York.
FRCH dismisses what it describes as Thalle's "after-the-fact" attempt to bolster Mr. Slack's credentials by having him list in his affidavit prior rattlesnake surveys in which he has participated. FRCH compares Mr. Slack's credentials to those of its own experts, Dr. Brown and Dr. McGowan, arguing that in contrast to these two men, Mr. Slack apparently has no education or training in identification of timber rattlesnakes or their habitat, has not been involved in any field research on timber rattlesnakes, and has published no papers on timber rattlesnakes in peer-reviewed journals. This comparison of expert credentials obscures the real matter at issue, which is Mr. Slack's competence to do the survey work he performed. Based on his resume and supplemental affidavit, Mr. Slack's competence as a timber rattlesnake surveyor cannot be seriously questioned.
Also, on the issue of timber rattlesnakes, Department Staff has relied not only on Mr. Slack's surveys, but on the independent evaluation of the survey reports by its own expert, Dr. Theodore Kerpez. Dr. Kerpez, Region 3's wildlife manager since 1990, has a Ph.D. in wildlife science from Virginia Polytechnic Institute and State University, and his competence as an expert with regard to rattlesnake behavior and ecology was not challenged by FRCH. While acknowledging that the project site has suitable transient and summering habitat for timber rattlesnakes, Dr. Kerpez concludes that such snakes do not actually use the site, and that the mine expansion would not modify habitat in such a way as to amount to a "taking" of the species.
It should be emphasized that the Applicant's conclusions about timber rattlesnakes at and near the project site are based not only on Mr. Slack's surveys, but on interviews with Thalle quarry personnel and users of the adjacent Fresh Air Fund lands. The Thalle quarry manager, a long-time employee, confirmed that no timber rattlesnakes have been observed or reported in the existing quarry, the proposed expansion area or any of the areas immediately adjacent to the quarry on the east side of Route 9.
Through its supplemental submission of October 20, 2003, FRCH attempts to undermine the conclusion that timber rattlesnakes in the vicinity of the Thalle site are restricted to the west side of Route 9. That submission contains several affidavits detailing accounts of snake sightings east of Route 9, as well as an affidavit concerning a rattlesnake survey of property located north of the Thalle mine. These offers of proof do not warrant further pursuit at an adjudicatory hearing, nor do they warrant additional site investigation.
- - Live Rattlesnake Sightings
As discussed above, an affidavit by Ms. LaGoy, FRCH's president, recounts reports of live timber rattlesnake sightings on the east side of Route 9, about a half-mile south of the Thalle mine. One sighting, attributed to a James Holdam, involves a rattlesnake allegedly seen about a year ago by his mailbox. Another sighting, attributed to a Joseph Gray, involves a rattlesnake allegedly seen about four to five years ago on a large rock at his mother's residence. Ms. LaGoy spoke to both Mr. Holdam and Mr. Gray but was unable to secure written statements from them. Mr. Holdam was unwilling to provide a written statement for use in this proceeding, and Mr. Gray did not appear at a scheduled meeting at Ms. LaGoy's home, the purpose of which was to obtain his affidavit, nor did Mr. Gray respond to Ms. LaGoy's subsequent phone calls. Because Mr. Holdam and Mr. Gray are unwilling to document their accounts for use by FRCH, their alleged sightings cannot be credited.
In an affidavit of October 28, Mr. Slack concedes that, regardless of the veracity of Mr. Holdam's and Mr. Gray's accounts, it may be possible that individual timber rattlesnakes have crossed Route 9 from time to time from known den sites in the Bald Mountain area of Fishkill Ridge. According to Mr. Slack, portions of the area to the south of the Southern Dutchess Sand and Gravel mine are not occupied by industrial or commercial uses, and would provide an avenue for individual rattlesnakes to approach or even cross Route 9. However, he adds that given the vehicle traffic associated with the road, it is doubtful that these snakes could make the crossing on a long-term basis, year after year as part of their summer migration.
Furthermore, as Mr. Slack points out, if a timber rattlesnake was located in the area of East Mountain North Road, where the sightings allegedly occurred, it is highly doubtful that the snake would migrate north from there to the southern border of the Thalle property, because the intervening area includes a number of commercial/industrial establishments and a ready-mix concrete plant, which would make any crossing quite difficult.
FRCH's supplemental submission also contains an affidavit of Mr. Amato, which recounts a conversation he had on October 2, 2003, with Randy Stechert, an independent herpetological consultant who has conducted numerous timber rattlesnake surveys in New York State, many of them for the Department. According to Mr. Amato's affidavit, Mr. Stechert told him that in or about 1996, he had been contacted by a Fishkill resident who stated that he had observed a rattlesnake in one of the junked cars in the automobile junkyard north of the Thalle mine. Mr. Stechert said that he found the report to be credible, since rattlesnakes favor abandoned cars because their metal retains heat. However, Mr. Stechert said that he did not recall the name and address of the witness. Without this information, there is no possibility that the witness could be located and presented at a hearing where the credibility of his account could be tested.
Furthermore, in response to FRCH's submission, the Applicant has provided an affidavit of Peter Zalys, the owner and operator of Double Z Motors, the apparent location of the sighting. Double Z Motors sells used car parts and scrap metal and is the next business north of Thalle's mining operation along the east side of Route 9. Mr. Zalys writes in his affidavit of October 24, 2003, that in the 25 years he has been operating at this location, he has never seen a rattlesnake, and none of his employees or visitors have ever reported seeing a rattlesnake. Because visitors to his business are not permitted to roam the site without him or one of his employees, Mr. Zalys contends that if there had been a rattlesnake sighting, it would have come to his attention.
Hearsay testimony may be admitted in Department permit hearings, in which case it is possible that Ms. LaGoy and Mr. Stechert could testify about the accounts of snake sightings they received from other people. However, the regulation that governs hearsay evidence [6 NYCRR 624.9(a)(1)] limits its receipt to circumstances where "a reasonable degree of reliability is shown." As Dr. Kerpez, the Department's expert, explains in his October 28, 2003, affidavit, the only feasible way to assess the credibility of a rattlesnake sighting by a lay person is to discuss it with him and ask questions. That opportunity is foreclosed when a witness will not come forward to testify or even provide his own written statement, or when the identify of the witness is unknown.
- - Dead Rattlesnake Sighting
As noted above, FRCH's supplemental submission includes affidavits of two employees of a tree trimming service, who claim to have seen a dead rattlesnake that was found during the summer of 2003 on the east roadside of Route 9. The snake was allegedly found across from a business known as Pet Pleasers, at 2832 Route 9, about one-quarter mile north of the Thalle mine. One of the alleged witnesses, Gino Caprio, states that his co-worker, William Wolf, found the snake and brought it to him in the truck where he was parked and doing paperwork. Mr. Caprio apparently has some background in rattlesnake identification, having attended festivals in Pennsylvania where rattlesnakes are exhibited and snake identification is discussed.
Department Staff and the Applicant both point out that the affidavits of Mr. Caprio and Mr. Wolf contain discrepancies with regard to the coloring and markings of the snake and whether it had a stub or rattles at the end of its tail, suggesting that the men's accounts are so contradictory that neither one may be credited. However, allowing that witnesses may perceive the same object in different ways, there is still no basis for pursuing this sighting further. For one thing, as the Applicant points out, there is no way of knowing how the snake got to the roadside or how it met its death. For another, assuming the most likely scenario - - that the snake got to the roadside by its own effort and was then run over - - tends to prove the Applicant's point that vehicle traffic presents a considerable hazard and that Route 9 acts as a barrier preventing snakes from known dens west of Route 9 from crossing onto properties on the east side of the road and possibly establishing themselves there.
Because Mr. Caprio and Mr. Wolf did provide affidavits, their own testimony about what they observed would eliminate hearsay objections that the other parties could raise, while allowing for cross-examination that could help determine whether what they found was in fact a timber rattlesnake. Even so, this testimony would have limited value; if anything, it tends to prove the Applicant's point more than any contention of FRCH that timber rattlesnakes actually inhabit or use the mine expansion area.
- - McGowan Rattlesnake Survey
After the issues conference, counsel for FRCH contacted Dr. Edwin McGowan, who is currently employed by the New York New Jersey Trail Conference in Mahwah, New Jersey. Dr. McGowan confirmed that he had done a timber rattlesnake survey on lands adjoining the Thalle mine site, and subsequently provided an affidavit of October 17, 2003, which is part of FRCH's supplemental submission.
According to Dr. McGowan's affidavit, his rattlesnake survey was done on May 11, 2000, on property located north of the Thalle mine, adjacent to property known as the Sharpe Reservation. (A map of the survey area is attached as Exhibit "A"to Dr. McGowan's affidavit.) Dr. McGowan writes that during the survey, he observed the presence of large areas of suitable denning habitat, including numerous cliffs, rock outcrops, and rock slides with southwest exposures. As a result of those observations, he concluded that expansion of the Thalle quarry may eliminate foraging habitat and encroach on possible den sites, some of which are less than 500 meters north of the active portion of the mine. Dr. McGowan writes that he did not observe any timber rattlesnakes on the day of his survey, but did observe a northern copperhead near the crest of the slope at one of the rock slabs he identified as suitable shedding habitat. According to Dr. McGowan, copperheads are known to commonly share den sites with timber rattlesnakes, and may indicate the presence of timber rattlesnakes.
Dr. McGowan did his survey for the New York Natural Heritage Program as part of its efforts to document the presence of endangered and threatened animal and plant species in the state. Due to the need to maintain confidentiality about the location of actual or potential habitat of these species, the program requested that Dr. McGowan not release his copy of his survey report. However, according to Dr. McGowan, the report contains his opinion that suitable habitat for timber rattlesnakes exists in the survey area.
Because Dr. McGowan did not observe any timber rattlesnakes, Department Staff claim that his survey actually supports its position that there are no rattlesnakes in the area in dispute. Furthermore, Dr. Kerpez, Department Staff's expert, acknowledges that while sometimes copperheads and rattlesnakes do den together, there are many copperhead dens that are not rattlesnake dens, so the presence of copperheads is not a reliable indicator that rattlesnakes are also present. According to Dr. Kerpez, copperheads are much more numerous than rattlesnakes in southeastern New York, which is one reason rattlesnakes are listed as a threatened species and copperheads are not listed as endangered, threatened, or of special concern.
The Applicant agrees with Staff's assessment of the survey. Its expert, Mr. Slack, points out that Dr. McGowan evaluated the site in May, during spring emergence, when a number of timber rattlesnakes should have been in the vicinity of any den and therefore fairly easy to observe. Just as Dr. McGowan did not observe any timber rattlesnakes in his study area, Mr. Slack found no evidence of snakes in the areas he examined north and east of the existing quarry. No one has identified an actual timber rattlesnake den north or east of the quarry site, and the only known dens within traveling distance for timber rattlesnakes are west of the site, on the other side of Route 9.
On behalf of the Applicant, Mr. Slack asserts that in the unlikely event that the site identified by Dr. McGowan does indeed contain timber rattlesnakes, blasting and industrial activities at the quarry, which have been carried out for decades, must not have affected them. Furthermore, Mr. Slack contends that a significant amount of buffer is available between the site identified by Dr. McGowan and both the existing quarry and proposed expansion area, mitigating any impact to any possible den site in the area Dr. McGowan investigated.
According to Mr. Slack, any timber rattlesnakes traveling south from the site investigated by Dr. McGowan would be less likely to use the Thalle property and more likely to use uninhabited, undisturbed areas further to the east on Fresh Air Fund property. The Fresh Air Fund has five camps located on its Sharpe Reservation, property that adjoins the Thalle quarry. According to an affidavit by Bernard Ruf, reservation director, the reservation has about 2,000 acres of land, with lakes, ponds, streams and hiking trails through the woods. Mr. Ruf has overseen this acreage for over 45 years, and has walked the property countless times in all seasons while performing tasks such as land surveys and the posting of property lines. An experienced outdoorsman, Mr. Ruf writes that he has never seen a rattlesnake on the Fresh Air Fund property and has never heard of a rattlesnake sighting on the property. Mr. Ruf says that because of his supervisory role, had anyone - - including camp directors and counselors, or any of the Fresh Air Fund's three full-time teaching naturalists - - ever observed a rattlesnake on Fund property, he would have been advised of the sighting.
FRCH's principal expert, Dr. Brown, contends that Dr. McGowan's survey provides additional evidence of a reasonably high probability that there are one or more active timber rattlesnake den sites in the vicinity of the Thalle quarry, and that such den sites could be damaged by blasting associated with the mine expansion. Finally, Dr. Brown states that should an active den site be within 500 meters north of the active portion of the mine, it would place a potential rattlesnake population within the existing quarry or its expansion area, considering the distances reached in the snakes' typical seasonal migrations. Therefore, Dr. Brown contends that another survey by a competent rattlesnake field biologist at the appropriate time of year, preferably during spring emergence, is warranted.
FRCH's request for another survey is hereby denied. As discussed above, the mine expansion area has already been examined in a comprehensive and targeted manner by Mr. Slack, himself a competent surveyor. His eight-page evaluation of the potential for occurrence of timber rattlesnakes in the Thalle quarry and its proposed expansion area is Appendix 8 of the Draft EIS. A supplemental EIS, as requested by FRCH, could be required by the Department as lead agency only if it found that the impact to timber rattlesnakes had not been addressed or had been inadequately addressed in the Draft EIS, based on changes to the project, newly discovered information, or a change in circumstances related to the project. [See 6 NYCRR 617.9(a)(7)(i)]. The project has not changed since the Draft EIS was accepted, nor have the circumstances related to it. Furthermore, the timber rattlesnake is already discussed in the context of the project's potentially significant environmental impacts. The information provided by FRCH, including the information contained in its supplemental submission, does not suggest that impacts to timber rattlesnakes were inadequately addressed in the Draft EIS, which states that since there are no known den sites on the east side of Route 9, and the establishment of a new den site by snakes crossing the highway and other intervening land uses would be unlikely, the Thalle property is not considered to be potential rattlesnake habitat. [Draft EIS, page 86.]
Dr. McGowan found what he considered to be potential denning habitat close to the active Thalle mine, but he did not find an actual den or see any timber rattlesnakes. In terms of a potential taking, that puts this matter on a different footing from the Sour Mountain case, which involved an actual den site found about 260 feet from Sour Mountain's property line. In the absence of reliable information that timber rattlesnakes actually inhabit the area east of Route 9 on or in close proximity to Thalle's mine expansion area, there is no adequate basis for requiring further survey work. Nor is there any need to further consider impacts of mining and blasting upon members of the species.
Because, as all the parties agree, timber rattlesnakes tend to be well-camouflaged in their environment, and do not favor open areas where they may readily be seen, there always remains the possibility, however remote, that the project may threaten a timber rattlesnake population that has not yet been discovered. Also, the anticipated duration of the project over a period of 38 years leaves open the possibility that a rattlesnake population could establish itself in denning habitat not currently used, including the habitat identified by Dr. McGowan. For that reason, while I find no issue for adjudication, and that further survey work is unnecessary, I also find that there should be a mechanism by which rattlesnake sightings within the project site would be reported to Thalle management and, in turn, to the Department. As noted above, the Applicant indicates in its Draft EIS that it would post educational materials to inform its employees and visitors about the appearance, natural history, and protected status of the timber rattlesnake, and to direct them not to kill, injure, or harass any snakes observed on the site. I direct that these materials shall take the additional step of informing employees and visitors that they are to report any sightings of timber rattlesnakes to the quarry manager. Also, I direct that the Applicant shall be obliged to promptly inform the Department of any sightings that are reported, including the reported location of any sighting as well as the identity of all witnesses, so that the Department can take whatever action it deems necessary to ensure the protection of this threatened species. To confirm the Applicant's obligations in this regard, these obligations shall be set forth in a new special permit condition, to be developed by Department Staff.
- - Timing of Supplemental Submission
As noted above, consideration of the timber rattlesnake issue requires addressing not only the adequacy of FRCH's offer of proof but the timing of its supplemental submission. Though the supplemental submission postdates the deadline for submitting petitions for party status and even the close of the issues conference, the Department's permit hearing procedures allow for the late filing of petitions for party status that include a demonstration that there is good cause for the late filing [6 NYCRR 624.5(c)(2)(i)]. FRCH did meet the filing deadline for its initial petition, and included the protection of timber rattlesnakes as one of its proposed issues. Therefore, its supplemental submission is not, properly speaking, a late-filed petition for party status. However, the regulation governing such petitions provides a useful standard for evaluating information that is provided after the filing deadline in the hearing notice.
As Department Staff points out, another useful standard is that in 6 NYCRR 624.4(b)(1), which provides that at the ALJ's discretion, an issues conference may be reconvened at any time "to consider issues based on new information upon a showing that such information was not reasonably available at the time of the issues conference." As a practical matter, my considering the parties' post-conference submissions in the context of the pre-existing record has had the effect of reconvening the issues conference, by allowing the parties an opportunity to be heard in the same order that was followed at the conference itself: hearing the offer of proof by FRCH, entertaining the responses by the Applicant and Department Staff, and allowing for a final reply by FRCH, since it has the burden of persuasion that its proposed issues are substantive and significant.
I have chosen to consider the supplemental submissions in the interest of making a ruling that is informed by all the information that has been made available in this proceeding. Again looking to the standards governing consideration of late-filed petitions for party status, one is to consider not only whether there is good cause for the late filing, but whether consideration of the filing would significantly delay the proceeding, unreasonably prejudice the other parties, and materially assist in the determination of issues. [6 NYCRR 624.5(c)(2)(ii) and (iii).] While the receipt and consideration of the additional submissions have somewhat delayed completion of these issues rulings, the delay has not been substantial. The other parties have not been prejudiced because they have been given a full opportunity to respond to FRCH's supplemental submission. Finally, the parties' additional submissions have created a fuller record on which the Department can determine if an issue exists or if additional survey work is necessary.
All this being acknowledged, I agree with the Applicant and Department Staff that FRCH has not demonstrated good cause for the late filing of its supplemental submission. Though FRCH claims that the information in that submission did not come to its attention until after the issues conference began, all the sightings and survey work referenced in the supplemental submission predate the deadline for petitions for party status. In fact, most of the information is at least several years old. Though the information was not acquired by FRCH until during or after the issues conference, the information was "reasonably available" to FRCH had it conducted a fuller investigation of this issue before the filing deadline. Therefore, a basis exists to exclude the information from the record, though I have chosen not to do so in this case.
Ruling: No issue exists with regard to the potential for the mine expansion or activities associated with the expansion to constitute an illegal taking of timber rattlesnakes. Furthermore, there is no need for additional survey work as part of a supplemental EIS. However, a new permit condition, as discussed above, addressing a mechanism by which future rattlesnake sightings would be reported to Thalle management and, in turn, to the Department, shall be inserted in any final permit that is issued for this project.
Stormwater Management
Proposed Issue: Based on an offer of proof by Greg P. Mapstone of the Chazen Companies, FRCH challenges the adequacy of the Applicant's plans for stormwater management in the event of the quarry's expansion. Those plans include construction of a diversion channel that is intended to keep runoff generated east of the site from entering the southern portion of the expansion area.
The channel would be created upslope of the quarry by line-drilling into the face of the slope and shooting the rock, which would remain in the channel to filter the water and dissipate its energy. The Applicant intends to use a series of small blasts that would leave large boulders of more than adequate size to handle the velocity of the running water, even during large storm events. Also, the Applicant intends to conduct excavation that would assure the channel is five feet wide at the bottom and at least five feet deep.
Arguing that the stone in the channel must be sized to accommodate the expected stormwater velocities, FRCH says it is not reasonable to assume that the blasting will leave an appropriate channel with stone that is also appropriately sized. FRCH contends that minimum stone sizes should be specified for each of the channel's reaches or one size noted for the entire channel.
Also with regard to stormwater management, FRCH makes the following arguments:
- FRCH claims that stormwater that collects in three on-site storage areas will require treatment prior to its discharge to a tributary of Clove Creek, and that the use of heavy equipment within the quarry suggests that certain areas should be treated as hydrocarbon "hot spots" requiring use of an oil/water separator where stored water is pumped for off-site discharge.
- FRCH points out that the largest of the three stormwater storage areas, Storage Area No. 3, has an irregular shape and encompasses a large percentage of the area near the existing mine. According to FRCH, it is very unlikely that there would be adequate settling of stone dust sediments in the storage area, due to large equipment traversing it while moving between the mine face and processing area. On the premise that the quarry would not cease operations on its own during and immediately after runoff-producing rainfall events, FRCH says that a separate area needs to be found so that sediments can settle under quiescent conditions.
- FRCH claims there is no assurance that stormwater entering Storage Area No. 3 will infiltrate to the groundwater faster than it is generated. If the storage area rests above bedrock, FRCH argues, the bedrock would form a nearly impermeable barrier to the infiltration of groundwater, as fissures in the stone become plugged by a fine clay generated by the mixing of rainwater with the fine particulate matter that is created by the quarrying and crushing of rock. According to FRCH, even if the storage area rests above soil, the project would generate fine sediments that would plug the soil pores and render that material impermeable. FRCH asserts that if the storage area bottom is to be lowered to remove the effect of sediment compaction, it is not noted in the Applicant's analysis. Furthermore, it claims that if the bottom is not bedrock, test pitting should be done to determine groundwater levels, bedrock levels, and soil types.
Background: The Draft EIS anticipates that the quarry expansion, by producing an additional 29 acres of disturbed area, would have a significant impact on the existing stormwater system, but concludes that this impact would not be adverse. [Draft EIS, page 74.] Currently, stormwater generated off-site and upslope of the existing quarry drains into the quarry or is carried by existing drainageways to Clove Creek.
As proposed, the expansion would leave an intermittent stream in place along the northern boundary of the property, allowing stormwater to continue westward toward the creek. In the southern part of the expansion area, one intermittent drainageway along the western boundary of the quarry is intended to remain in place, and another one, in the Phase III area, would be rerouted via the diversion channel discussed above.
The diversion channel would direct runoff around the perimeter of the quarry before it is eventually discharged off-site via an existing intermittent stream. The Applicant concedes that, after the channel is blasted, there would be some excavation to shape the channel and possibly some sizing of the rock within the channel.
The Applicant points out that mining is not expected to reach the Phase III area until about 20 years after the expansion begins, so the diversion channel is not an immediate concern. Nevertheless, the Applicant's counsel said he could accept permit language proposed by FRCH requiring that the channel rock be adequately sized to accommodate the expected stormwater velocities.
The Applicant points out that stormwater within the quarry walls is now channeled into three storage areas, the main one being on the quarry floor, whose bedrock is over-blasted and scarified to allow for water percolation. The application includes a stormwater analysis for the 29-acre expansion area, prepared by Peter Loyola of Continental Landscape Architecture and Planning, Inc. (The analysis is in Appendix 5 of the Draft EIS, in Volume 3, and stormwater calculations done as part of the analysis constitute Volume 3-A of the Draft EIS.)
According to the Applicant's analysis, the capacity of the three stormwater storage areas (two small ones in the asphalt plant and processing areas, and the larger one - - Storage Area No. 3 - - on the quarry floor) combined with the overflow storage capacity of the total existing quarry floor is sufficient to handle the volume of runoff associated with a 100-year storm event. As the quarry floor expands east and south during the proposed expansion, Storage Area No. 3's capacity would also increase.
According to Mr. Loyola, Storage Area No. 3 already has ample area to allow for sediment settling, and there is no need for equipment to enter the area and stir up the water. Mr. Loyola says that the only portion of the site that could be considered a hydrocarbon "hot spot" is the area where equipment is fueled, and that this area does not come into contact with stormwater. The Applicant also points out that the existing facility already operates under a petroleum spill prevention control and countermeasures plan, a copy of which was marked as Exhibit No. 16, and that no spills have occurred to date.
In order to enable quarry floor operations to continue without disruption following storm events, stormwater is currently pumped up to a main channel and allowed to flow through a culvert to a tributary of Clove Creek. Prior to the water being pumped, it is inspected to assure it is not turbid. According to the stormwater analysis, the increased storage capacity afforded by the expansion would allow for longer retention prior to pumping.
The Applicant has requested a SPDES permit addressing the discharge of stormwater into the Clove Creek tributary from two separate outfalls, one for discharge from the asphalt plant area and the other for discharge from the quarry area. Staff's draft permit (Exhibit No. 7B) requires monitoring and sets limits for various parameters including suspended and settleable solids, oil and grease, and various petroleum contamination indicators such as benzene, toluene, xylene and ethylbenzene.
A SPDES permit is also required for the discharge of stormwater from the diversion channel. However, according to the Applicant, the channel would not be built until almost 20 years after the expansion begins, prior to the project entering Phase III. Because SPDES permits are issued for five-year terms, the initial SPDES permit does not address the channel or its discharge point, though the location of the channel and its outfall are shown on Drawing No. STR-4 within the stormwater analysis (see Appendix 5 to the Draft EIS). Department Staff and the Applicant intend that, when construction of the diversion channel begins, the Applicant will request a modification of its SPDES permit to address the channel discharge.
In terms of mitigating stormwater impacts, the Draft EIS emphasizes that during the life of the expansion, the storage areas as well as the culvert and pumping system that now handle on-site runoff would remain in use, and that the storage areas would be cleaned periodically to remove sediment build-up. Also, reclamation would be implemented and maintained concurrent with mining in order to minimize disturbed areas, and, upon final reclamation, the storage areas would permanently provide detention and retention for on-site runoff. (Draft EIS, page 147.)
Position of Department Staff: To address FRCH's concerns about the diversion channel, Staff proposed that a footnote be added to the draft SPDES permit indicating that prior to the commencement of any excavation in Phase III of the mine expansion, the permittee shall apply for, and receive if approvable, a modification of the permit to include the diversion channel along the southeast perimeter of the mine (and its proposed Outfall 003), and shall submit detailed engineering plans, including a detailed erosion and sediment control plan, to the Department for review. [Exhibit No. 18 contains the exact language prepared by Staff during the issues conference.] Staff indicates that, in the context of the SPDES program, Staff does not normally ask for detailed engineering plans at the outset, but merely asks an applicant to demonstrate in principle that it can meet the permit's discharge standards. According to Staff, it is then up to the permittee to meet the standards, and, if this is not possible, to make whatever improvements are necessary to correct the problem.
With regard to the issue of possible hydrocarbon "hot spots," Department Staff notes that its draft SPDES permit contains a numerical effluent limit for oil and grease at outfall 001 for stormwater discharge from the asphalt plant, as well action levels for benzene, toluene, xylene and ethylbenzene at outfalls 001 and 002 (the second outfall addressing stormwater discharge form the quarry area). Staff concedes that activities on the quarry floor may affect the quality of stormwater effluent, but adds that it is up to the Applicant to control when it manually activates its pump so as not to be responsible for a violation of effluent limits. Assuming, as the Applicant contends, that the quarry floor storage area has more than enough capacity to hold stormwater, then it would not have to pump the water if, for instance, it was noted to have a petroleum sheen.
On the issue of stormwater infiltration, Staff claims that if the Applicant contended that all stormwater runoff within the quarry would be discharged to groundwater, then Staff would further evaluate the infiltrative capabilities of the quarry floor. However, that is not the Applicant's contention; instead, the Applicant is proposing to dewater the quarry via pump to surface waters. Because the draft SPDES permit is not based on an infiltration-type system, Staff contends that no further inquiry is necessary regarding the infiltration capability of the quarry floor.
Discussion: As outlined more fully above, FRCH claims that the Applicant's plans for stormwater management are inadequate in several respects. Each of its assertions warrants discussion as a separate sub-issue.
- - Sizing of Stone In Diversion Channel
FRCH claims that the application provides no assurance that stone in the planned diversion channel would be appropriately sized to accommodate the expected velocity of stormwater. According to FRCH, such an assurance requires an engineering analysis that has not yet been performed. This does not create an issue for adjudication given the timing of the channel's construction, and because FRCH's expert, Greg P. Mapstone, accepts the Applicant's calculations that a channel can be built which is capable of handling a 100-year storm event.
The diversion channel is required before construction enters the project's Phase III area, some 20 years after the project begins, while SPDES permits are issued for five-year terms. The general route of the diversion channel is shown in the Applicant's plans, but the fine details of its design and construction have not been established. At the issues conference, Department Staff developed a footnote for the draft initial SPDES permit (Exhibit No. 18) indicating that prior to the commencement of any excavation in Phase III of the mining facility, Thalle would apply for, and receive if approvable, a modification of the SPDES permit to include the diversion channel along the southeast perimeter of the mine (with its proposed outfall 003) and would provide the Department with detailed engineering plans, including a detailed erosion and sediment control plan. (The initial permit, as drafted by Staff, addresses two outfalls: outfall 001, for stormwater discharge from the asphalt plant area, and outfall 002, for stormwater discharge from the quarry area.) The language of the footnote was accepted by the Applicant and was deemed satisfactory by FRCH. In fact, it eliminated FRCH's concern that the locations of hay bales and siltation fences that would be installed during the channel's construction are not specified in the pending application.
The Applicant concedes that blasting for the channel cannot by itself assure that the remaining stone is adequately sized to handle the running water. According to its consultant, Mr. Loyola, the channel would be created through some combination of blasting, excavation and land forming. Mr. Loyola says the sizing of the stone, in combination with the slope of the channel, will determine the ability of the channel to dissipate the water's energy. As he explained, a smooth, grassy channel allows water to move quickly, while a rougher surface offers more friction.
Mr. Loyola explained that the Applicant's stormwater calculations assume a coefficient for friction (or roughness) of the diversion channel, but no particular size for the channel stone. Nevertheless, he gave his assurance that the stone would be stabilized and able to handle any inflow of water before the Applicant breaks into the existing intermittent drainageway and prior to any excavation in the project's Phase III area. This commitment is reflected in special condition No. 9 of the draft mining permit, which provides that the diversion channel along the southeast perimeter of the mine shall be constructed and fully stabilized prior to excavation activity in Phase III. The condition also states that all swales and stormwater control channels shall function effectively to prevent off-site stormwater discharges other than those authorized by permits issued by the Department.
- - Stormwater Pre-Treatment
FRCH claims that stormwater which collects in three on-site storage areas will require treatment before it is discharged to a tributary of Clove Creek, to eliminate contamination by petroleum products. There is no apparent basis for this concern. As the Applicant indicates, the facility operates under a spill prevention control and countermeasures plan. No spills have been documented to date. Should a spill occur in the future, the quarry floor storage area has more than enough capacity to hold stormwater, so that the Applicant would not be forced to pump petroleum-contaminated water off-site. The SPDES permit requires monitoring for and sets limits with regard to oil, grease and various petroleum contamination indicators.
- - Sediment Settlement in Storage Area No. 3
FRCH claims that large equipment moving through Storage Area No. 3 will prevent the settlement of stone dust sediments, and therefore a separate area must be found where sediments can settle under quiescent conditions. The Applicant disagrees, claiming that the storage area already has ample room for sediment settling, and that the mine expansion would open even more, allowing stormwater to be retained as long as required to eliminate turbidity. The Applicant's claims here are backed up by a stormwater analysis, the contents of which FRCH did not rebut. For that reason, no issue exists for adjudication.
- - Rate of Stormwater Infiltration
FRCH claims that the bottom of Storage Area No. 3 could become a barrier impeding the infiltration of stormwater to the underlying sand and gravel aquifer. This is not a concern requiring further pursuit. First, as the Applicant indicates, the bottom consists of bedrock that has been overblasted and scarified so that water can percolate through it. Second, according to the Draft EIS, the storage area would be cleaned periodically to remove any built-up bottom sediment. The periodic cleaning should protect against the possibility of sediment clogging the fissures in the rock. As Department Staff argues, the infiltrative capacity of the quarry floor would be of greater concern if it was intended that all stormwater would be discharged to groundwater. However, that is not the case, since the Applicant also proposes to pump water out of the storage area.
Ruling: None of FRCH's proposed sub-issues concerning stormwater management require adjudication. Any final SPDES permit shall include Staff's proposed footnote addressing the diversion channel.
Groundwater Impacts
Proposed Issue: FRCH maintains that the bedrock aquifer beneath the project site is likely to be more permeable than the Applicant contends, which makes the aquifer more likely to be a conduit through which contaminants released in the quarry work area could migrate to a deeper sand and gravel valley aquifer system containing an important community water supply well field.
FRCH claims that the Draft EIS contains only generic information about the region's bedrock geology, and no site-specific documentation of joints, faults, formational contacts, and other relevant geologic features. FRCH also notes that the Applicant has provided no detailed, site-specific geologic mapping, such as mapping of the orientation and degree of interconnection of fractures, joints or contacts that would serve as pathways for groundwater recharge and migration. Finally, FRCH points out that the Applicant has provided no detailed geologic analysis of the expansion area, where FRCH says mining would expose fractures to more rapid entry of recharge as well as spilled petroleum or chemical contaminants.
According to FRCH, regional mapping indicates that the quarry bedrock is the same as or similar to bedrock formations that extend under much of Putnam County, which all include joints and fractures that are sufficiently interconnected to allow groundwater migration and flow into wells. FRCH says that blasting would enhance the natural permeability of the quarry bedrock, but that this has not been acknowledged or adequately evaluated by the Applicant.
As a separate sub-issue, FRCH says it is likely that the well in the aggregate plant area, which extracts water primarily for dust control purposes, creates a greater drawdown of the sand and gravel aquifer than has been previously realized, and that the impacts of this, particularly on the municipal well field, have not been adequately considered. FRCH contends that this requires adjudication because continuation of the existing situation, during a time when pressure for community water resources is increasing, involves the extraction of water for what amounts to a low-priority use. FRCH contends that the water demands of the quarry are unknown and that the Applicant has provided no documentation that it uses only 5,000 gallons per day.
FRCH's proposed expert on groundwater issues is Russell B. Urban-Mead, a senior hydrologist with the Chazen Companies.
Background: The Draft EIS states that Thalle's quarry is located on top of three separate aquifers. Two of the aquifers are unconsolidated sand and gravel aquifers, while the third is a bedrock aquifer. The sand and gravel aquifers are part of the Clove Creek aquifer, which supplies water to one of the Village of Fishkill's well fields located about 3,000 feet northwest of the Thalle quarry. These aquifers are hydraulically separated by low-permeability glaciolacustrine deposits known to exist in the Fishkill valley area. The bedrock aquifer beneath the project site has a low permeability and does not provide water for well systems. Because of their low permeability, the bedrock hills direct runoff to the sand and gravel aquifer in the valley containing Clove Creek. (Draft EIS, page 34 and 35.)
According to regional geologic mapping, the project site is underlain by granitic gneisses. (Draft EIS, page 33.) Dean Herrick, the Applicant's consulting geologist, says that the low permeability of these rocks is apparent from looking at the exposed quarry face, which is 250 feet high and 1200 feet long. He says that fractures in the rock may be somewhat open at the surface due to impacts of past glaciation, but that the fractures tighten up as one goes deeper, which means they do not transmit water to any great degree. According to Mr. Herrick, in the vicinity of the project site, there are no domestic wells in the granite bedrock, only wells that draw their water from the much more permeable sand and gravel aquifer.
The Draft EIS acknowledges that the eastern half of the quarry floor is underlain by broken rock through which water percolates (Draft EIS, page 74). However, the Applicant refutes FRCH's inference that this reflects a natural permeability of the bedrock formation. According to Mr. Herrick, the broken rock is due to overblasting of the quarry floor to create a level surface on which equipment can operate. Mr. Herrick adds that if rocks were allowed to stick up from the quarry floor, they could damage tires and cut hydraulic lines.
Mr. Herrick denies that the Applicant's onsite well is causing any significant drawdown of the sand and gravel aquifer. According to the Draft EIS, the existing mining operation uses about 5,000 gallons of water per day for dust control, both at the processing plant and on the internal roads, and this usage should not increase with the expansion. (Draft EIS, pages 36 and 73.) Mr. Herrick says that the sand and gravel aquifer system is so fully charged with water that Thalle could increase its usage by 100 times and still have no impact on the aquifer. Even so, he said, the most water that Thalle's well could provide is 6,600 gallons a day.
As FRCH points out, the Draft EIS indicates that, at the Thalle quarry, the water table of the sand and gravel aquifer lies at about 192 feet above mean sea level (amsl), based on data from the on-site well. (Draft EIS, page 34.) The Draft EIS also indicates that groundwater in the Clove Creek aquifer has been mapped at between 200 and 230 feet amsl. (Draft EIS, page 34.) FRCH argues that a comparison of these readings suggests a large drawdown of the aquifer at the Thalle property. However, according to Mr. Herrick, the 192-foot reading was taken during a dry summer between five and seven years ago, and another reading taken at the time of the issues conference, after recent heavy rains, would show the water table to be much higher, as high as 230 feet amsl, in which event it would be about 20 feet below the lowest elevation of the operating floor.
The draft mining permit (Exhibit No. 7A) provides that the Village of Fishkill or its designated representatives, upon notice to the Applicant, would be afforded access to the quarry for quarterly inspections to verify that practices that could contaminate groundwater are not occurring. Also, the draft permit requires that the Applicant perform quarterly sampling of the quarry well for benzene, toluene, xylene and ethylbenzene to determine if groundwater is being degraded by site activities. Finally, the draft permit directs the Applicant to maintain a Department-approved spill control and abatement plan for the site. [See special conditions No. 23 (a), (b) and (c).]
The quarry already operates in accordance with a spill prevention control and countermeasures plan, dated January 2002, which was marked as Exhibit No. 16. The Applicant intends that this plan would remain in effect during the expansion, fulfilling the requirement of the permit condition.
Position of Department Staff: Staff contends that FRCH's contentions are not grounded in a competent offer of proof and are based largely on speculation.
According to Robert Martin, the Department's Region 3 mined land reclamation specialist, the Clove Creek aquifer system is relatively extensive and receives a very large amount of recharge. It is a sand and gravel aquifer, part of which is confined by overlying sediment, the other part being unconfined and open to infiltration from the surface. The Fishkill water system penetrates both parts of the aquifer, but draws only from the upper part at the present time, Mr. Martin claims.
Mr. Martin says that the recharge to the sand and gravel aquifer is primarily from sheet runoff from the bedrock on the sides of the valley, and that the aquifer does not depend on water that infiltrates through bedrock joints and fractures. Mr. Martin agrees with Mr. Herrick that the granitic quarry rock is basically impermeable and that, to the extent it is fractured, the fractures dissipate with depth. Mr. Martin says that mapping joints and faults is not necessary because these features would be removed as the rock is excavated.
According to Mr. Martin, Staff asks for bedrock fracture analyses in situations where there are wells in the bedrock system, the excavation is intended to go below that system, and the wells could be affected by pumpout-induced drawdown as the quarry goes deeper. Such a situation, he adds, does not exist here. There are no bedrock wells connected to the mine expansion area, and the quarrying would not affect the contribution of water to the sand and gravel aquifer from which the Village of Fishkill draws water.
Mr. Martin contends that the Applicant's withdrawal of 5,000 gallons of water per day from the sand and gravel aquifer, for the purpose of dust control, is negligible compared to the aquifer's yield, which has been estimated to be as much as 3 million gallons per day. With regard to the elevation of 192 feet amsl reported in the Draft EIS for the sand and gravel aquifer water table below the Thalle plant, Mr. Martin said it appeared to be anomalous in comparison with current water table elevations of between 230 and 235 feet amsl in the valley floor. He said he could not explain the anomaly, but raised the possibilities that the 192-foot reading was due to either drought or geologic conditions such as the presence of an aquiclude.
Mr. Martin says that the Applicant's continued compliance with its spills prevention control and countermeasures plan would prevent contaminants from entering the groundwater system through the quarry floor.
Discussion: Generally speaking, FRCH's concerns in this area relate to impacts on a sand and gravel aquifer that is an important water resource for the community. There are separate concerns about the aquifer's possible contamination by contaminants moving through the overlying bedrock, and the Applicant's extraction of aquifer water for the purpose of dust control.
- - Bedrock as a Contaminant Conduit
According to FRCH, the application lacks sufficient detail about the bedrock that separates the land surface from the underlying sand and gravel aquifer. As the Applicant and Department Staff both argue, such detail is not necessary in this case. The bedrock consists of a granitic gneiss that is not prone to deep or extensive fracturing. The impermeable nature of the bedrock in its natural state is apparent by looking at the exposed quarry face. Because of the bedrock's low permeability, the sand and gravel aquifer is recharged for the most part by sheet runoff from the surrounding hills, rather than water infiltrating through bedrock joints and fractures, as Mr. Martin notes. Though FRCH is concerned about contaminants moving through the bedrock and entering the underlying aquifer, the draft mining permit contains conditions to protect against this and to detect it if it occurs, as discussed above. FRCH did not cite a particular statute or regulation that insists on the level of geologic detail it claims is absent from the application materials.
- - Extraction of Aquifer Water
FRCH questions whether the Applicant extracts more water from its onsite well than is indicated in the Draft EIS. According to the Draft EIS, the Applicant now extracts about 5,000 gallons of water per day for dust control, a level of use that would continue during the mine's expansion. Based on a comparison of reported water table elevations at the quarry and elsewhere within the aquifer, FRCH concludes that the Applicant is extracting more than that amount, though Mr. Herrick, for the Applicant, explained why such a comparison is misleading, given the timing of the reported measurement at the quarry.
According to the Applicant, the sand and gravel aquifer is sufficiently productive to meet the quarry's requirements and those of other users. FRCH has no contrary offer of proof, only a general claim that there is increasing pressure for community water resources. Also, FRCH's characterization of Thalle's water use as "low-priority" misrepresents the importance of the well water to control dust and thereby maintain air quality.
Ruling: Adjudication is not required with regard to either of FRCH's sub-issues concerning groundwater impacts.
Air Quality Impacts
Proposed Issue: FRCH claims that the Draft EIS fails to adequately address air quality impacts because it fails to take into account the unique climate conditions of the local region.
According to FRCH, the Applicant's analysis of air quality impacts improperly relies on air quality data from the National Stone Association's study of a North Carolina stone crushing plant. (This study is Appendix 6 to the Draft EIS, in Volume 3.) FRCH claims that the Applicant has provided no evidence to show that the weather, topography, geology, and mining practices at the North Carolina plant are sufficiently similar to those at Thalle's operation to sustain the validity of comparisons between the two.
As a second sub-issue, FRCH says that the data provided in the regional climate table of the Draft EIS (at page 44 of the text, in Volume 1) are not specific to the site or even to the region. Furthermore, FRCH claims, the data are very limited because they provide information only up to the year 1990. For these reasons, FRCH argues, the data are of questionable reliability in predicting impacts for this project.
Finally, as a third sub-issue, FRCH claims that, after the detonation of explosives, there would be a large release of dust and gases that would be dissipated away from the blast center. FRCH argues that it is not possible to accurately assess the impact of such a release on surrounding human receptors because the Draft EIS contains no analysis of the distance or direction that the release would travel based on local weather patterns.
FRCH's proposed expert on air quality impacts is Charles P. Alongi, a senior environmental scientist with the Chazen Companies.
Background: The Draft EIS acknowledges that drilling, blasting, bench clearing, haul roads, and truck traffic at the project site all have the potential to impact air resources. Such impacts are intended to be mitigated by various measures, including measures to control the generation of dust.
The study sponsored by the National Stone Association, which is Appendix 6 of the Draft EIS, was meant to compile data concerning the formation, composition, and deposition of particulates at a typical stone crushing plant, in this case Martin Marietta Aggregate's plant in Greensboro, North Carolina. The study is referenced by the Applicant on page 39 of the Draft EIS as "an ambient air test program" demonstrating that "a typical stone processing facility is an insignificant contributor to ambient concentrations of particulate matter."
As discussed in the Draft EIS, the National Stone Association study found that the North Carolina plant was not a significant source of PM-2.5 emissions, that its PM-10 emissions were small, and that TSP (or total suspended particulate) emissions, though significant, are rapidly deposited downwind.
The Applicant argues that it is not relying solely on the National Stone Association study, and that it did its own extensive emissions calculations, including emissions from drilling and blasting, which are documented on pages 78 - 83 of the Draft EIS. These calculations are for two different operational scenarios: the current one, where the rock is transported to the processing plant by truck along haul roads, and the one proposed for the expansion, where a portable primary crusher is located at the site and the crushed rock is then transported to the processing plant by a field conveyor (which would be covered to minimize dust, pursuant to special condition No. 18(b) of the draft mining permit). According to the Draft EIS, locating a portable primary crusher at the project site mitigates dust impacts from bench clearing, the haul road and haul trucks, along with associated vehicle engine emissions. [Draft EIS, page 79.]
As noted in Appendix 16 of the Draft EIS, on September 7, 2000, the Applicant also sampled the air upwind and downwind of the operation throughout a day on which the plant was in full operation - - screening, crushing and producing asphalt - - and dust was noted from the facility's crusher and stacker. The sampling indicated that concentrations of both respirable particles (all dust) and respirable quartz were below the limits of detection at the property line.
According to the Draft EIS, the climate data for Table 2 of the document are for Millbrook, New York, which is less than 30 miles from the project site. [Draft EIS, pages 43 and 44.] Data are provided for temperature, precipitation and snowfall. The data were supplied by the Northeast Regional Climate Center at Cornell University, and cover the period from November 1948 to July 1999, though normalized data is restricted to the period between 1961 and 1990. [Draft EIS, page 42.] The data are included in the Draft EIS as part of a description of the environmental setting of the project, but were not used to predict or model air quality or other impacts.
The Applicant reports that it conducts blasting once a week during the normal operating season. The Draft EIS states that air impacts from blasting would be mitigated through use of efficient blasting methods, including use of timing delays which sequence the blasts in a way that minimizes noise and vibration. [Draft EIS, page 150.] Blasting would be conducted during the middle of the day when people are most likely to be at work. [Draft EIS, page 150.] By use of published emissions factors, emissions from blasting have been estimated at 28 tons per year of total particulate. [Draft EIS, page 78.] The Applicant points out that blasting was conducted one to three times per week at the North Carolina plant during the period of the National Stone Association study, without any detectable impact on ambient PM-2.5 concentrations. [Draft EIS Appendix 6, study report, pages 3 and 11.]
Position of Department Staff: Staff point out that with emission caps for particulates, oxides of nitrogen (Nox) and carbon monoxide, the Thalle facility is not considered to be a major stationary source requiring a federal air permit pursuant to Title V of the Clean Air Act and 6 NYCRR Subpart 201-6. Therefore, modeling that employs meteorological data is not a necessary component of the permit application. Even if such data were needed, Staff contends that the Millbrook data would likely be appropriate for use, given the proximity of Millbrook to Fishkill and the amount of data that is available for the Millbrook location.
Robert Stanton, the Department's Region 3 air pollution control engineer, said that the National Stone Association study provides a good indication of the type of emissions that occur as part of a stone quarry operation, and that the study was appropriate for the purpose it has in the Draft EIS. Mr. Stanton said that the Department also uses federally-approved and published emission factors to calculate emission amounts. The draft air permit sets limits on the facility's operation to keep emissions below a certain level, and requires the Applicant to certify annually that it has operated all emission units within the limits imposed by the emissions cap. [Draft air permit, Exhibit No. 7-C, page 12 of 36.]
Staff points out that, pursuant to the draft mining permit, all blasting shall be conducted, monitored, and recorded by a blaster licensed by the New York State Department of Labor, and that the permittee shall maintain copies of all blasting and ground vibration records. [Exhibit No. 7-A, special condition No. 2.] Staff also notes that the draft permit requires strict compliance with the ECL and all applicable regulations. These regulations include 6 NYCRR 211.2, a general prohibition against air pollution, and 6 NYCRR 211.3, which limits visible emissions. Staff argues that if any regulatory standard is violated, the Applicant will risk enforcement action. For its part, the Applicant argues that it has never been cited for an air violation, despite blasting which has been part of its past operations.
Discussion: FRCH's concerns about air quality impacts have three components, each of which are discussed below.
- - Reliance on National Stone Association Study
According to FRCH, it was inappropriate for the Applicant to analyze the air quality impacts of its operation on the basis of air quality data from a study of another stone crushing plant in North Carolina. Actually, as the Applicant points out, the National Stone Association study was used in the Draft EIS for a limited purpose: to demonstrate that a typical stone processing facility contributes insignificantly to ambient concentrations of particulate matter. The Applicant did not use data from the study to analyze particulate impacts of its operation. These impacts were estimated on the basis of published emission factors, as shown on pages 78 - 83 of the Draft EIS.
- - Regional Climate Data
FRCH contends that the Draft EIS includes regional climate data that are not specific to the site or the region. As reported in the document, the data are from a recording station in Millbrook, New York, which is northeast of the site, less than 30 miles away. Because the data were merely used to describe the environmental setting of the project, and were not used to predict or model air quality or other impacts, the appropriateness of the data for inclusion in the Draft EIS does not require further attention. Even if the data (which addresses temperature, precipitation and snowfall) had been used in an impact assessment, FRCH offered no evidence suggesting that the data misrepresents site conditions in a significant way, or that a comparable data set, covering 50 years of information, is available for a location closer to the site.
- - Blasting Impacts on Air Quality
FRCH claims that blasting would generate a large release of dust and gases the impacts of which require an understanding of local weather patterns that would affect the distance and direction that the release would travel. The basis of its concern - - that blasting would generate a release large enough that its dissipation would threaten human receptors - - is not apparent from its filing. As the Applicant points out, blasting would not be a new activity associated with the expansion; it has gone on for years at the existing quarry. Blasting is an infrequent occurrence (according to the Applicant, once a week during the normal operating season) that would be conducted during the middle of the day when nearby residents are most likely to be at work. To minimize blasting-related noise and vibration, the Applicant intends to use timing delays that sequence the blasting and make it more efficient. Against this backdrop, FRCH has not demonstrated that blasting would generate such a significant impact on air quality that a study employing local weather patterns is necessary. Nor has FRCH demonstrated that such a study is required for the type of air pollution control permit requested by the Applicant.
Ruling: No issue exists with regard to project impacts on air quality.
REQUESTS FOR PARTY STATUS
Two timely petitions for full party status were received in this matter, one from FRCH and the other from the Town of Fishkill. The Town of Fishkill supports the project and did not propose any issues for adjudication. FRCH opposes the project and proposed various issues for adjudication. However, I find that none of these issues are substantive and significant.
Because there are no issues separating the Applicant and Department Staff, there are no issues that would warrant scheduling an adjudicatory hearing. Since there is no need for an adjudicatory hearing, rulings on party status are unnecessary. Even so, some discussion of the petitioners' environmental interests is warranted since the Commissioner, reviewing any appeals from these rulings, could herself determine that an issue exists and that further proceedings should be held.
According to the Department's permit hearing procedures, a petitioner's entitlement to full party status is based upon a number of factors including "a demonstration of adequate environmental interest" [6 NYCRR 624.5(d)(1)(iii)]. The adequacy of FRCH's environmental interest was challenged by the Applicant and Department Staff.
- - Fishkill Ridge Community Heritage
Ann LaGoy, FRCH's president, included an affidavit in FRCH's petition (Exhibit No. 9), addressing the group's environmental interest. According to Ms. LaGoy, FRCH is an unincorporated association that was formed about three years ago, and has 20 core members, most of whom reside in Dutchess County, and many of whom use the Fishkill Ridge area for hiking and other recreational activities. Ms. LaGoy indicates that the group operates under a constitution that sets forth its purposes. These purposes include (1) protecting Fishkill Ridge from industrialization and other development that the group concludes is not harmonious with the area's history, culture, landscape, watershed, and wildlife; and (2) opposing gravel and hard rock mining that endangers the viewshed, Clove and Fishkill Creeks, and the related aquifers at the base of Fishkill Ridge. According to Ms. LaGoy's affidavit, FRCH's environmental interest in this proceeding "concerns the potential adverse impacts to Fishkill Ridge of the proposal by Thalle Industries to engage in a massive expansion of its existing quarry."
The Applicant challenges FRCH's alleged environmental interest, citing a standard set out in Society of the Plastics Industry v. County of Suffolk, a 1991 decision of the New York State Court of Appeals [77 N.Y. 2d 761]. In that case, a trade organization and producer of plastics products brought action challenging a county law banning use of certain plastics. The court held that there were three requirements in determining the judicial standing of an association or organization to challenge administrative action: (1) that one or more of the group's members would have standing to sue; (2) that the interests asserted are germane to the group's purposes; and (3) that neither the asserted claim nor the appropriate relief requires participation of individual members.
Focusing on the first of these requirements, the Applicant contends that in its petition for party status, FRCH did not demonstrate that any of its members would warrant standing on their own. According to the Applicant, the only member referenced by name in the petition, Ms. LaGoy, at 14 Clove Road, lives a half-mile from the project site, not a quarter-mile away, as she states in her affidavit. Furthermore, the Applicant states, she has no view of the project from her property, and she is outside the range of projected noise impacts. In summary, the Applicant states that Ms. LaGoy's environmental interest is no greater than that of any other member of the general public who was free to speak at the legislative hearing. (In fact, Ms. LaGoy and another FRCH member, Anthony Henry Smith of Poughkeepsie, did offer comments at that hearing.)
The Applicant also cites Wyman v. Braman, a 2002 decision of the Appellate Division, Third Department [298 A.D.2d 787, 750 N.Y.S.2d 655]. In that case, town residents brought an Article 78 proceeding which challenged a Town of Shandaken zoning board decision granting a variance for construction of a cellular telephone tower. The court held that the residents lacked judicial standing, absent a showing that they had sustained an injury different in kind and degree from the community at large.
As FRCH counsel argues, the Applicant's reliance on these cases is misplaced. They concern standing to challenge government action in the state court system, not standing to participate in Department permit hearings. Standing to participate in Department permit hearings is governed by a standard in the regulations that govern those hearings, and that standard has been interpreted liberally to facilitate citizen participation. FRCH's environmental interest is adequately established by the purposes set forth in its constitution, the fact that it draws membership from the Fishkill area (even if most of its members live outside the range of environmental impacts), and the fact that many group members use the Fishkill Ridge area for hiking and other recreational activities, regardless of where they reside. Adding to the group's interest is the fact that Ms. LaGoy and other FRCH members who live closest to the Thalle property would be affected directly by any impacts to air and groundwater quality that would be attributable to the mine expansion, providing a basis for their intervention as individuals without regard to the group itself. The Applicant points out that Ms. LaGoy is outside the range of projected visual and noise impacts of its project. However, that is no longer relevant, since FRCH has withdrawn visual and noise issues that were proposed in its petition.
Department Staff also said that it had "deep concerns" about whether FRCH's petition demonstrated an adequate environmental interest, pointing out that the 20 "core members" of the group were not identified by name and address, and therefore one could not determine how many of them live in close proximity to the mine. Because of Staff's concern, I allowed FRCH counsel the opportunity to submit a membership list, which he did during the issues conference. (The list is Exhibit No. 9-A.) The Applicant objected to my receipt of the list, arguing that it should have been provided with the petition in the first instance. I overruled the objection, noting that the list was provided, at my request, to verify certain claims in Ms. LaGoy's affidavit, and not to add new claims. Therefore, I did not view the list, as the Applicant did, as an improper supplementation of the petition.
The membership list tends to prove Ms. LaGoy's claim that most of FRCH's members are from Dutchess County. Staff argues that only a few of them live so close to the mine that they might warrant party status as individuals. If the Commissioner determines that party status is inappropriate for FRCH as a group, she could still grant party status to members, like Ms. LaGoy, who might be within the zone of impacts the Commissioner may choose to pursue further.
- - Town of Fishkill
The Town of Fishkill also filed for full party status, noting that the project involves the expansion of a long-active mining site in the town. The Town favors the expansion as a means for maintaining sound commercial and industrial growth, assuring a continued source of real property tax revenue, preserving local employment opportunities, and fulfilling the Town's legislated desire to attract and maintain industrial uses in a district zoned for industry. The location of the project within the town and its government's interests in responsible development are sufficient to demonstrate an adequate environmental interest warranting party status for the Town at any hearing the Commissioner might require. Affording the Town party status would be consistent with the Commissioner's interim decision granting the Town party status with regard to Sour Mountain's application to construct and operate a rock quarry at a site close to the Thalle property. [See In the Matter of Sour Mountain Realty, Inc., Interim Decision, July 18, 1996, page 17.] Because the Town supports the project, it has not proposed any issues for adjudication. However, through its attorney, it could be helpful in cross-examining other parties' witnesses, and the Town's engineer, John Andrews, has been offered by the Town as a possible witness on any issues involving his expertise.
- - Scenic Hudson
Scenic Hudson did not file for party status, because it was able to resolve its concerns in direct negotiations with the Applicant. However, it participated through counsel at the issues conference, and reached a stipulation with the Applicant (Exhibit No. 12-A) in which the Applicant concedes that Scenic Hudson has an environmental interest in the outcome of this proceeding, and agrees that if any issue is approved for adjudication as a result of the FRCH petition, Scenic Hudson may then intervene and fully participate in the adjudicatory hearing, without the necessity of filing a petition for party status, subject to the approval of the administrative law judge.
Scenic Hudson's environmental interest in this matter cannot be seriously disputed. Scenic Hudson has preserved and now manages for the public benefit considerable acreage, including hiking trails, on Fishkill Ridge, across the valley from the Thalle quarry. Scenic Hudson is particularly concerned about noise and visual impacts of the mine expansion, and has been involved in the permitting process since the late 1990's. Helping to scope the environmental impact statement, assisting in the development of impact studies, and negotiating with the Applicant for various changes to its plan, Scenic Hudson has helped improve the project from an environmental perspective.
Neither I nor Department Staff are parties to the stipulation between the Applicant and Department Staff. However, the proposal of that stipulation - - that Scenic Hudson be allowed to intervene and fully participate at any hearing on one of FRCH's issues - - makes sense in terms of administrative efficiency. Requiring that Scenic Hudson first file a petition, and then hearing arguments about its party status, does not make sense when the issues conference record already demonstrates that Scenic Hudson, by extensive involvement in this matter, could make a meaningful contribution on issues raised by FRCH. [See 6 NYCRR 624.5(d)(1)(ii), affording party status for any petitioner that "can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party."]
SUMMARY OF RULINGS
No substantive and significant issues exist for adjudication in this matter. Therefore, no adjudicatory hearing is warranted, and no rulings on party status are necessary. Should the Commissioner, on any appeal of these rulings, find any issue for adjudication, FRCH, the Town of Fishkill, and Scenic Hudson all have an adequate environmental interest warranting full party status.
APPEALS
A ruling of the administrative law judge 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)]. Ordinarily, such appeals must be filed in writing with the Commissioner within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].
Allowing extra time due to the length of these rulings, any appeals must be received at the office of Commissioner Erin M. Crotty, 625 Broadway, Albany, New York, 12233, no later than 4 p.m. on December 30, 2003. Any responses to appeals must be received before 4 p.m. on January 21, 2004. The appeals and responses mailed to the Commissioner's office must include an original and two copies. In addition, one copy of all appeals and responses must be sent to me and all others on the service list at the same time and in the same manner as the papers are sent to the Commissioner. Service of any appeal or response thereto by facsimile transmission (FAX) is not permitted, and any such service will not be accepted.
Appeals should address my rulings directly, rather than merely restate a party's contentions. To the extent practicable, papers should include citations to transcript pages and exhibit numbers. A list of the issues conference exhibits is attached to these rulings. The transcript corrections previously proposed by me and the issues conference participants have all been made, as there were no objections to them.
ORDER OF DISPOSITION
Due to the absence of issues requiring adjudication, and subject to the Commissioner's determination of any appeals of these rulings, the adjudicatory phase of this hearing is canceled, the record is closed, and the application is remanded to Department Staff for continued processing consistent with SEQRA and other relevant statutes and regulations. The final permit that is issued to the Applicant shall be consistent with the revisions to the draft permit that were made during the issues conference and consistent with my ruling on the issue of timber rattlesnakes.
/s/
Edward Buhrmaster
Administrative Law Judge
Albany, New York
December 10, 2003
To: Attached Service List
EXHIBIT LIST
THALLE INDUSTRIES, INC.
DEC Project No. 3-1330-00049-02001
1. DEC hearing notice (as issued from Office of Hearings and Mediation Services)
(7/30/03)
2. Cover letter for hearing notice, from ALJ Buhrmaster to Applicant's counsel Kevin
Brown (7/30/03)
3. DEC Office of Hearings and Mediation Services distribution list for hearing notice
(7/30/03)
4. DEC Region 3 correspondence, including distribution list, hearings request, and
correspondence from Michael Merriman to Blodgett Memorial Library and Applicant
(7/30/03)
5. DEC hearing notice as it appeared in on-line Environmental Notice Bulletin (8/6/03)
6. Affidavit of publication of hearing notice in the Poughkeepsie Journal (8/8/03),
under cover letter from Wayne Akstin to ALJ (8/22/03)
7A. DEC Staff draft mining permit (9/29/03, second draft)
7B. DEC Staff draft SPDES permit
7C. DEC Staff draft air state facility permit
8. Letter from John Caffry to ALJ (9/19/03)
8A. Stipulation among Applicant, DEC Staff and Scenic Hudson (9/22/03)
9. Petition for party status by Fishkill Ridge Community Heritage (9/22/03)
9A. Fishkill Ridge Community Heritage membership list
10. Petition for party status by Town of Fishkill (9/18/03)
11. Memorandum from ALJ to conference participants (9/23/03)
12. Memorandum from John Caffry to ALJ (9/25/03)
12A. Stipulation between Applicant and Scenic Hudson (9/30/03)
12B. Sketch map of anticipated mine plan map revision (attached to John Caffry memo)
13. DEC timber rattlesnake fact sheet (1/8/00)
14. Peter Loyola resume
15. Roy Slack resume
16. Thalle's spill prevention control and countermeasures plan (1/02)
17. Page 2-5, NewYork State Stormwater Management Design Manual (10/01)
18. Proposed footnote (4) for SPDES permit, page 2 of 7
19. Dean Herrick resume
20. Philip Grealy resume
21. Proposed additional language for special condition No. 5 of draft mining permit
22. Revised mine plan map (presented at issues conference)
The issues conference record incorporates by reference various binders identified as
the Draft Environmental Impact Statement for this project.
- - Volume 1 (environmental impact statement, permit applications)
- - Volume 2 (mining, reclamation and operational plan maps)
- - Volume 3 (appendices 2 - 13)
- - Volume 3A (stormwater calculations)
- - Volume 4 (appendices 14 - 17)
SERVICE LIST
THALLE INDUSTRIES, INC.
Project Application No. 3-1330-00049-02001
Applicant - Thalle Industries, Inc.
Kevin Brown, Esq.
Devorsetz, Stinziano, Gilberti, Heintz and Smith, P.C.
555 East Genesee Street
Syracuse, New York 13202-2159
Phone: 315-442-0100 Extension 179
FAX: 315-442-0169
Department of Environmental Conservation Staff
Jonah Triebwasser, Esq.
New York State Department of Environmental Conservation
Region 3 Office
21 South Putt Corners Road
New Paltz, New York 12561-1620
Phone: 845-256-3030
FAX: 845-255-3042
Fishkill Ridge Community Heritage
Christopher A. Amato, Esq.
79 North Pearl Street
Albany, New York 12207
Phone: 518-694-3325
FAX: 518-433-7398
Town of Fishkill
Ronald C. Blass, Jr.
Van DeWater and Van DeWater, LLP
Mill & Garden Streets
P.O. Box 112
Poughkeepsie, New York 12602
Phone: 845-452-5900
FAX: 845-452-5848
Scenic Hudson
John W. Caffry, Esq.
100 Bay Street
Glens Falls, New York 12801
Phone: 518-792-1582
FAX: 518-793-0541
Administrative Law Judge
Edward Buhrmaster, Esq.
New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, 1st Floor
Albany, New York 12233-1550
Phone: 518-402-9003
FAX: 518-402-9037
