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Lake George Park Commission (SONAR) - Ruling 2, September 18, 2001

Ruling 2, September 18, 2001

Lake George Park Commission - Ruling 2

In the matter of the application of the Lake George
Park Commission and New York State Office of
General Services,
Application #2001-006
for a freshwater wetlands permit to apply
SONAR® in Lake George.

This Ruling addresses the motion of the Adirondack Council ("AC") seeking an Order directing the Lake George Park Commission ("LGPC") and the NYS Office of General Services ("OGS") to seek declaratory rulings from the NYS Department of Environmental Conservation ("DEC") and the NYS Department of Health ("DOH"). The motion is brought pursuant to 9 NYCRR 580.11(c). More specifically, the AC is asking that an Order be issued directing the LGPC and OGS to petition for a declaratory ruling from the DEC with regards to the applicability of ECL §9-1503 and 9 NYCRR §193.3 to the pending application for a freshwater wetlands permit. Further, the movant is asking that the applicants be ordered to petition for a declaratory ruling from the DOH with respect to the applicability of NYS implemented labeling restrictions for the product known as SONAR®.

AC is also asking that the issues conference and the adjudicatory hearing in this matter be adjourned until the declaratory rulings are issued, or, in the alternative, that the applicants be ordered to submit both legal issues to the NYS Attorney General for a formal opinion pursuant to Article 5 of the NYS Executive Law.

The New York State Administrative Procedure Act ("SAPA"), section 204 provides that "On petition of any person, an agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it..." The declaratory ruling is to assist the general public by facilitating action by administrative agencies in interpreting statutes and regulations which the different agencies must enforce and determining applicability of the statutes and regulations to all of the various situations which may from time to time may be presented. (Power Authority of State of N.Y. v. NYS DEC, 86 A.D.2d 57).

In this case, the movant is asking that the LGPC and OGS be ordered to make such a petition. However, there is no need to force the applicants to take such an action. The AC can and should file such a petition itself if it believes that the rulings are relevant and necessary. The AC is not precluded in any way from bringing such a petition.

The AC cites no legal authority for me, as Administrative Law Judge assigned to this matter, to grant such a request. In fact, it has cited no legal authority for any court or judge to grant such a request. While SAPA allows a party to petition for such a ruling, there is no authority that I could find in SAPA, in the NYS Civil Procedure Law and Rules nor in the regulations that govern the APA, that allows an order to be issued that forces another to seek such a ruling.

As to the request for an adjournment of the proceedings, a similar request was made by the AC at the commencement of the issues conference held herein. The AC had requested that the issues conference be adjourned until the DEC could be brought in and a joint hearing could be held on the APA application and the DEC applications that are pending. That request was denied for the reasons enumerated on the record at the issues conference. As for the request here, as I noted, the AC could have petitioned the agencies for the rulings. This project has long been known to the in the public and the AC has known about this proposed project for several years. The AC could have sought the declaratory rulings at any time during the discussion of the project and possibly had a ruling issued by this time.

An adjournment request appears to be an attempt to slow matters down. Time is critical with this project. The hearing schedule is this matter runs through late November. It is anticipated that this matter can be placed on the January agenda of the APA Board. By placing this matter on the January agenda, the project should be able to go forward as planned, if approved. An adjournment at this time would prevent this project from taking place in Spring, 2002, even if approved by the APA. While it is always essential to have all facts and law known before proceeding with a decision on an application, an adjournment will not serve any purpose. The AC can now bring a petition for a declaratory ruling and have such a ruling issued, without adjourning this matter.

The motion is denied in it's entirety.

Molly T. McBride
Administrative Law Judge

Albany, New York
September 18, 2001

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