Department of environmental protection
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THE OFFICE OF APPEALS AND DISPUTE RESOLUTION April 12, 2012 ________________________ In the Matter of OADR Docket No. 2011-031 Century Acquisition, Inc. Sheffield ________________________
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 DECISIONThis 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
In The Matter Of: Century Acquisition, Inc (Denial of Air Permit) Docket No. 2011-028 File No. 1-P-08-034 Sheffield
Service List In The Matter Of: Century Acquisition, Inc (Denial of Air Permit) Docket No. 2011-028 File No. 1-P-08-034 Sheffield
Service List In The Matter Of: Century Acquisition, Inc Docket No. 2011-031 File No. 1-P-08-034 Sheffield
Service List In The Matter Of: Century Acquisition, Inc Docket No. 2011-032 File No. 1-P-08-034 Sheffield
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