Bio-Tech Mills, Inc. v. Williams , 484 N.Y.S.2d 292 ( 1985 )

Mikoll, J.

(concurring in part and dissenting in part). ECL 17-0805 provides for notice to applicants and interested parties of a hearing to be held on a SPDES application and of the issues to be adjudicated. DEC regulations promulgated pursuant to ECL 17-0805 provide that a hearing notice contain a concise statement of the issues raised by the party requesting the hearing (6 NYCRR 753.7 [b] [6]). Further, 6 NYCRR 624.6 (a) provides for an issues conference in advance of the public hearing, one purpose being to define and limit the scope of subjects for the adjudicatory hearing. Following the issues conference, the ALJ is to determine and advise the parties of the issues to which the evidence will be limited in the adjudicatory hearing (6 NYCRR 624.6 [c]).

In the combined notice of complete application and public hearing issued on September 30,1982, DEC made no mention of the Battenkill’s status as a trout-spawning stream because the creek was not reclassified as a trout-spawning stream until November 5, 1982, three days before the issues conference. In deciding to reclassify the stream, respondent held that the reclassification would have no impact on petitioner’s existing permitted discharge. In his rulings following the issues conference, the ALJ never mentioned that the reclassification of the Battenkill would be an issue at the adjudicatory hearing, although he did decide that the best usage of the Battenkill would be an issue. Respondent, however, in an interim decision issued November 23, 1982, ruled that the best usage of the affected stretch of the Battenkill would not be determined in the adjudicatory proceeding, although he termed the importance of the Battenkill to fishermen in the area a relevant issue.

Nevertheless, the reclassification of the Battenkill as a trout-spawning stream was a significant issue at the permit renewal hearing as reflected in the ALJ’s finding of facts and in respondent’s decision to deny the renewal. Respondent made particular mention that “the segment of the Battenkill extending by [petitioner’s mill] is classified as a trout-spawning stream which heightens the significance, as well as the notoriety and popularity, of this resource. The importance of protecting this resource is paramount”. Thus, it is clear that petitioner was not given adequate notice and its due process rights were thereby violated. However, I concur with the majority and find no other due process violations.

I concur as well that petitioner’s contention that ECL 70-0109 and 6 NYCRR 621.9 (b) and (c) require the issuance of a SPDES permit to petitioner should be rejected for the reasons articulated by the majority.

The determination should, in my view, be annulled and the matter remitted to respondent for further proceedings.

Weiss, Yesawich, Jr., and Harvey, JJ., concur with Main, J. P.; Mikoll, J., concurs in part and dissents in part in an opinion.

Determination confirmed, and petition dismissed, without costs.