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COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS



DEPARTMENT OF ENVIRONMENTAL PROTECTION

ONE WINTER STREET, BOSTON, MA 02108 617-292-5500












THE OFFICE OF APPEALS AND DISPUTE RESOLUTION

April 12, 2012

________________________


In the Matter of OADR Docket No. 2011-031

Century Acquisition, Inc. Sheffield

________________________

RECOMMENDED FINAL DECISION
In this appeal (Docket No. 2011-031), NADF, Inc., has appealed the Final Approval issued by the Massachusetts Department of Environmental Protection (“MassDEP” or “the Department”) to Century Acquisition, Inc. (“Century”), with respect to the Portland cement concrete batch plant and sand and gravel processing equipment, claiming that the Final Approval does not comply with applicable regulations. For the reasons discussed below, I recommend that this appeal be dismissed. In sum, I have concluded that the issues raised and the relief sought in this appeal are materially identical to the issues raised and relief sought and available in Docket No. 2011-032, rendering this appeal, Docket No. 2011-031, duplicative and unnecessary. No parties objected to this proposed disposition for Docket No. 2011-031. I have also simultaneously with this Recommended Final Decision, issued a Recommended Final Decision of the related appeal in Docket No. 2011-028. I first summarize the related appeal in Docket No. 2011-032 because it is relevant to my recommendation in this appeal.

Docket No. 2011-032

In Docket No. 2011-032, Century appealed the Final Approval, objecting to certain of the conditions related to the Portland cement concrete batch plant and sand and gravel processing equipment. I previously allowed NADF, Inc., Kim Casey, and Scott Simonds (“Interveners”) to intervene in Docket No. 2011-032. Presently pending in Docket No. 2011-032 is a joint motion to approve a settlement agreement and issue a final permit, filed and entered by MassDEP and Century with respect only to the Portland cement concrete batch plant and sand and gravel processing equipment. The Interveners have indicated they are opposed to the terms of the settlement agreement and proposed final permit. I therefore have entered an order placing the burden on the Interveners, pursuant to 310 CMR 1.01(8)(c), of going forward to establish why the agreement “is inconsistent with law.” A hearing has been scheduled for July 11 and 12, 2012, if the appeal cannot be resolved on summary decision.



Recommendation for Docket No. 2011-031

MassDEP and Century have moved to dismiss this appeal. Kim Casey and Scott Simonds have moved to intervene. Given that they (Case and Simonds) are all parties in Docket No. 2011-032, along with NADF, with regard to the same permit that is at issue in this appeal, I held a status conference and queried why this appeal (Docket No. 2011-031) would not be rendered moot, or, as a practical matter, would not be unnecessary and duplicative of the appeal in Docket No. 2011-032. At first, Century and the Interveners expressed concerns or questions that the proceedings in Docket No. 2011-032 based upon 310 CMR 1.01(8)(c) might somehow alter the burden of proof in Docket No. 2011-032. Absent that and any prejudice against them, they indicated that it made sense to dismiss the appeal in Docket No. 2011-031. MassDEP stated that it was not opposed to the dismissal of Docket No. 2011-031, agreeing with my belief that there was no material difference in the Interveners’ rights in Docket No. 2011-031 versus Docket No. 2011-032. Indeed, I find that there is no material difference, and that at the end of the day the ultimate overarching issue is virtually the same in each appeal, i.e., whether the final permit will be inconsistent with law. I stated that in each appeal, the Interveners have the burden of going forward—in Docket No. 2011-032 under 310 CMR 1.01(8)(c) and in Docket No. 2011-031 as Petitioners. In fact, as Century stated, there is no material reason why the proposed settlement agreement in Docket No. 2011-032 would not also apply to Docket No. 2011-031, leaving the appeals at essentially the same procedural juncture. After the status conference, I allowed the parties approximately two weeks to file objections or requests for clarification, of the proposed disposition, and none were filed.

In light of the above, I recommend that this appeal, Docket No. 2011-031, be dismissed, according to the terms discussed above.

NOTICE- RECOMMENDED FINAL DECISION


This decision is a Recommended Final Decision of the Presiding Officer. It has been

transmitted to the Commissioner for his Final Decision in this matter. This decision is therefore not a Final Decision subject to reconsideration under 310 CMR 1.01(14)(e), and may not be appealed to Superior Court pursuant to M.G.L. c. 30A. The Commissioner’s Final Decision is

subject to rights of reconsideration and court appeal and will contain a notice to that effect. Because this matter has now been transmitted to the Commissioner, no party shall file a

motion to renew or reargue this Recommended Final Decision or any part of it, and no party

shall communicate with the Commissioner’s office regarding this decision unless the

Commissioner, in his sole discretion, directs otherwise.


Date: __________ __________________________

Timothy M. Jones

Presiding Officer
SERVICE LIST

In The Matter Of: Century Acquisition, Inc

(Denial of Air Permit)

Docket No. 2011-028 File No. 1-P-08-034

Sheffield


Representative

Party

Christopher B. Myhrum, Esq.

27 Lyman Street #109

Springfield, MA 01103



chrismyhrum@comcast.net

APPLICANT/PETITIONER

Century Acquisition, Inc








Christine Lebel, Esq.

MassDEP – Western Regional Office

436 Dwight Street

Springfield, MA 01103



Christine.lebel@state.ma.us


DEPARTMENT


Cc:




Marc Simpson

MassDEP – Western Regional Office

436 Dwight Street

Springfield, MA 01103



Marc.simpson@state.ma.us


ANALYST

































Service List


In The Matter Of: Century Acquisition, Inc

(Denial of Air Permit)

Docket No. 2011-028 File No. 1-P-08-034

Sheffield




Representative

Party

Christopher B. Myhrum, Esq.

27 Lyman Street #109

Springfield, MA 01103



chrismyhrum@comcast.net
Andrew W. Gilchrist, Esq.

Alison M. Coan, Esq.

Tuczinski, Cavalier, Gilchrist & Collura, P.C.

54 State Street, Suite 803

Albany, NY 12207

agilchrist@tcgclegal.com

acoan@tcglegal.com

APPLICANT/PETITIONER

Century Acquisition, Inc








Christine Lebel, Esq.

MassDEP – Western Regional Office

436 Dwight Street

Springfield, MA 01103



Christine.lebel@state.ma.us


DEPARTMENT


Cc:




Marc Simpson

MassDEP – Western Regional Office

436 Dwight Street

Springfield, MA 01103



Marc.simpson@state.ma.us


ANALYST







Date: December 6, 2011























Service List


In The Matter Of: Century Acquisition, Inc

Docket No. 2011-031 File No. 1-P-08-034

Sheffield


Representative

Party

Christoper B. Myhrum, Esq.

27 Lyman Street #109

Springfield, MA 01103



chrismyhrum@comcast.net
Andrew W. Gilchrist, Esq.

Alison M. Coan, Esq.

Tuczinski, Cavalier, Gilchrist & Collura, P.C.

54 State Street, Suite 803

Albany, NY 12207

agilchrist@tcgclegal.com

acoan@tcglegal.com

APPLICANT

Century Acquisition, Inc


Wesley Kelman, Esq.

Pawa Law Group, P.C.

1280 Centre Street, Suite 230

Newton, MA 02459



wkelman@pawalaw.com

mp@pawalaw.com


PETITIONER

NADF, Inc (Citizens Group)



Michael Dingle

MassDEP/Office of General Counsel

One Winter Street

Boston, MA 02108



Mike.dingle@state.ma.us
MacDara Fallon, Esq.

MassDEP/Office of General Counsel

One Winter Street

Boston, MA 02108



Macdara.fallon@state.ma.us


DEPARTMENT


Cc:




Marc Simpson

MassDEP – Western Regional Office

436 Dwight Street

Springfield, MA 01103



Marc.simpson@state.ma.us


ANALYST

Date: December 6, 2011






Service List


In The Matter Of: Century Acquisition, Inc

Docket No. 2011-032 File No. 1-P-08-034

Sheffield


Representative

Party

Christoper B. Myhrum, Esq.

27 Lyman Street #109

Springfield, MA 01103



chrismyhrum@comcast.net
Andrew W. Gilchrist, Esq.

Alison M. Coan, Esq.

Tuczinski, Cavalier, Gilchrist & Collura, P.C.

54 State Street, Suite 803

Albany, NY 12207

agilchrist@tcgclegal.com

acoan@tcglegal.com

APPLICANT/PETITIONER

Century Acquisition, Inc








Michael Dingle

MassDEP/Office of General Counsel

One Winter Street

Boston, MA 02108



Mike.dingle@state.ma.us
MacDara Fallon, Esq.

MassDEP/Office of General Counsel

One Winter Street

Boston, MA 02108



Macdara.fallon@state.ma.us


DEPARTMENT


Cc:




Marc Simpson

MassDEP – Western Regional Office

436 Dwight Street

Springfield, MA 01103



Marc.simpson@state.ma.us


ANALYST









This information is available in alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TDD# 1-866-539-7622 or 1-617-574-6868

MassDEP Website: www.mass.gov/dep



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