Board to DEC and O&G: Not so fast

Since late last Fall, local officials cozy with various cement, mining and trucking interests have been presenting as a fait accompli that Holcim and O&G had received an irrevocable State endorsement of their plans for a heavy haul road down from Becraft Mountain, across Routes 9 and 9G, and through Hudson’s once-historic South Bay.

The claim was somewhat fishy (no pun intended) to begin with, since mining-friendly regulators at New York State’s Department of Environmental Conservation appeared to have approved only “maintenance” of the long-neglected route, not conducted a full review of what is intended to be a major new industrial thoroughfare.

And now, a new document obtained today from the State’s Freshwater Appeals Board further calls into question whether this hasty and secretive “approval” will actually stand up.

On February 2nd, the Appeals Board rejected an effort by DEC to dismiss a motion by Scenic Hudson, Inc. of Poughkeepsie to overturn the agency’s decision, meaning that the organization may now proceed with their appeal. (O&G has likewise filed to be an “intervenor” in the appeal. )

Particularly noteworthy in the FWAB’s interim decision is the revelation that DEC issued no public notice whatsoever of its decision. The agency itself admits it did not issue such a notice. And yet it sought to deny Scenic Hudson’s appeal based on the allegation that it did not file its motion in a timely matter. The Appeals Board completely rejects DEC’s argument, noting their nonsensical position that one can punish someone for not immediately appealing an agency action they have absolutely no way of knowing took place.

DEC’s position is Kafkaesque, to say the least, and the Appeals Board knocks them for it:

“If we agree with the DEC interpretation as to when the clock begins to run with regard to a third-party like Scenic Hudson, it would make it very difficult (if not completely shut the door) for any interested third-parties to ever have the opportunity to appeal. In the interest of fairness and due process (and common sense), actual notice must be applied. [...I]t is uncontested that public notice was never provided on the challenged permits.”

Now, as I’ve stated publicly before, I’m not a big fan of Scenic Hudson’s upper management. But there are still some good people within the organization, and their effort to hold DEC’s feet to the fire in this matter is to be commended.

Some key questions this situation raises:

1. Why is DEC so afraid of allowing Scenic Hudson to introduce documents pertinent to the permitting process that the agency failed to provide to the Appeals Board?
   


2. Will the FWAB be able to process this appeal in a timely way, considering that the Paterson administration has gutted much of its staff to deal with the State’s bankrupt condition?


3. Why is O&G, a Connecticut-based subcontractor, the sole industrial participant in this matter—and not the landowner, Holcim?


4. Will the press now explore the purported permits and the appeal based on something other than the p.r. spin of Holcim/O&G and its political allies?

A copy of the Appeals Board ruling can be downloaded as a PDF by clicking here.