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Akzo - Interim Decision, January 31, 1996

Decision, January 31, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

Applications Requested Pursuant to Environmental Conservation Law
Article 23 (Mined Land Reclamation, Article 17 (State Pollutant Discharge Elimination System),
and Article 15 (Water Supply, Stream Bed Disturbance, Water Quality Certification),
Collectively, for an Underground Salt Mine,

- by -

AKZO NOBEL SALT INC., et al

Project Application Nos. 8-2428-00019/00001-0;
/00002-0/00003-0/00005-0/00007-0

INTERIM DECISION

January 31, 1996

INTERIM DECISION OF THE COMMISSIONER

Akzo Nobel Salt Inc. ("Akzo") and Genesee & Wyoming Railroad Company ("Railroad") appeal to the Commissioner from that part of the December 21, 1995 Issues Ruling of Administrative Law Judges Kevin J. Casutto and Helene G. Goldberger ("ALJs") in this proceeding that determined that four issues require adjudication. Department Staff has filed a similar appeal, and also objects to that portion of the Ruling which directs that the final permit include a provision by which Akzo agrees to offer alternate dispute resolution ("ADR") to property owners who may claim in the future that they have suffered property damage by reason of the proposed mining activity. Two environmental groups, Protect A Clean Environment ("PACE") and Regional Action Group for the Environment ("RAGE") and affiliated individuals,Affiliated with RAGE are Douglas J. Mothersell, individually and as a RAGE member, Haudenosaunee-Six Nations Confederacy, Myron O. Brady, Sr., individually and Brady Farms, Inc. appeal from such parts of the Ruling as decline to find certain issues as meriting adjudication. Livingston County Industrial Development Agency ("LCIDA") appeals from the ALJs' determination to deny it amicus status. The Town of Geneseo ("Town") has filed a notice of appeal for the purpose of protecting its interests as they may appear, the Town having reached agreement with Akzo and Staff as to inclusion of certain conditions in the draft mining permit which, if adopted in a final permit, the Town believes will provide sufficient protection of public health, welfare, and the environment (especially ground and surface water quality and quantity) as to warrant going forward with the proposed salt mining project.

Summary

My review of the record in this proceeding, including the application, the Mined Land Use Plan, the Draft Environmental Impact Statement ("DEIS"), hearing transcripts, exhibits, and draft and revised draft permit conditions, convinces me that no substantive and significant issues for adjudication remain in this proceeding. In essence, the proponents of these issues have not come forward with facts sufficient to meet their burden under 6 NYCRR 624.4(c)(4) of showing that further inquiry is needed as to Akzo's ability to meet applicable standards or criteria, or that modifications should be made to the currently proposed revised draft permit conditions. Also, this decision clarifies one of the draft conditions in certain respects. Therefore, I remand this matter to Department Staff for final permit issuance, including the necessary findings under SEQRA, in a manner consistent with this decision.

Discussion of Standards Applicable to Appeals

In general, rulings of an ALJ which include or exclude issues for adjudication may be appealed to the Commissioner during the course of a hearing pursuant to 6 NYCRR 624.8(d)(2). Where the Department Staff and an applicant are not in disagreement over the terms and conditions of the proposed permits, the burden of persuasion is on the party proposing an issue to demonstrate that the issue is both "substantive" and "significant." Only such issues as are found to be both substantive and significant will be adjudicated (624.4(c)).

While an intervenor's offer of proof at the issues conference need not necessarily be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions.

"The degree of proof necessary to meet an intervenor's burden may vary depending on the nature of the matter under consideration, and whether the applicant attempts to rebut the intervenor's offer of proof. However, after the question has been joined, an adjudicable issue exists only where there are sufficient doubts about the applicant's ability to meet all statutory and regulatory criteria such that reasonable minds would inquire further. Requiring a greater showing would effect an unfair burden on intervening parties; requiring a lesser showing would over-burden the adjudicatory system with issues of dubious merit" (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988).

The purpose of an adjudicatory hearing is to receive evidence on disputed issues of fact, and to hear related arguments prior to the Commissioner's rendering of a final decision. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decisionmaking." (See, In the Matter of Sithe/Independence Power Partners, Interim Decision, November 9, 1992). The adjudicatory phase of the public hearing process assists the Commissioner in deciding defined factual disputes which bear upon a permit applicant's ability to meet established environmental criteria ("substantive issues"), and which are relevant and germane to the final outcome of whether a permit should be issued, and if so, upon what conditions ("significant issues"). The relevance of disputed materials to the ultimate permit decision must be kept in mind in determining whether adjudication is warranted (See, In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990). The legislative hearing phase, which takes place prior to an adjudicatory hearing, provides interested members of the public unrestricted opportunity to provide input on the proposed project. The adjudicatory phase is limited to factual issues determined to be substantive and significant.

Background

This is a major permit proceeding pursuant to 6 NYCRR 621.2. Akzo has applied for a permit under the Mined Land Reclamation Law ("MLRL"), Article 23, Title 27 of the Environmental Conservation Law, and for a related SPDES permit for the development and operation of a new underground rock salt (halite)The mineral, halite, is sodium chloride (NaCl), common table salt. Halite is commonly called "rock salt." mine at Hampton Corners in the Towns of Groveland and Geneseo in Livingston County.Related permit applications have been filed by the Towns of Mt. Morris and Groveland for public water supply (ECL, Article 15), and by the Railroad for streambed disturbance and water quality certification related to a proposed railroad bridge over Canaseraga Creek (ECL, Article 15). The application states that Akzo has secured mineral rights allowing it to mine rock salt lying in strata approximately 1300 feet beneath the surface from as much as 9,000 acres of land (the mine area) in the vicinity of Hampton Corners. Access to these minerals would be provided by construction of shafts and hoisting equipment; storage, processing, and shipping facilities; stormwater and wastewater management facilities; and utility services. These facilities would be placed on about 55 acres of a 186 acre parcel owned by Akzo in the Towns of Groveland and Geneseo (the "mine site"). Applicant anticipates that the mine will have an operational life of approximately 50 years, producing about 4.0 million tons per year of rock salt.

Salt Mining in New York

Thick strata of minable salt deposited during the Silurian period eons ago exist in upstate New York and extend to portions of northern Ohio and southern Ontario.See DEIS, 2.1. These minerals have been extracted for human use for many years, either by direct underground excavation, as proposed here by Akzo, or by solution mining. The record indicates that there are eight salt mining operations (extraction or solution) in five counties in upstate New York.See "The Economic Impact of the Retsof Mine of AKZO Salt", by Livingston County, NY, Economic Development Office, April 12, 1994 (R 635-650), at p. 8. [References to "R.____" are to the Record For Appeal filed by AKZO and the Railroad with their appeal.] New York State is a leader in salt production in the United States and worldwide; about 64% of the total rock salt produced and imported is for highway deicing.Id. Thus, rock salt production in upstate New York has been an important activity, providing a useful and necessary material, and also providing an economic stimulus.

Akzo is a major rock salt producer, with mines in Cleveland, Ohio; Avery Island, LA; and Retsof, NY.

The Proposed New Mine

Akzo's mining plan for Hampton Corners is to excavate salt from the B-6 salt stratum, about 1,300 feet below the surface. The B-6 slopes gently to the southeast and is about 19 feet thick. Akzo plans to mine a section about 13 feet thick from the B-6 layer, leaving salt pillars in place to support the roof. This is the room and pillar method of mining, using large pillars for support. The plan is to remove up to 60% of the B-6 salt and leave 40% for the supporting pillars, for an extraction ratio of 60%. The Extraction Ratio is the ratio of area mined to total area. See Issues Conference Tr. 444 (VanSambeek). Salt is relatively plastic under pressure. Over time, the salt in the pillars and on the mine floor and roof will converge; the pillars will squeeze outwardly. The rate of closure of the mine floor and ceiling is called the convergence rate. Some surface subsidence is anticipated. There are no specific regulatory criteria for convergence rates, extraction ratios, or rates of surface subsidence in salt mines in the United States.See Report of John T. Boyd Company to DEC's Division of Mineral Resources, submitted August 21, 1995 at p. 5-6 (R. 244). Coal mining regulations of the Department of the Interior (30 CFR Parts 701 and 817), while not applicable here, provide that "prudent measures" to minimize material damage should be taken with respect to subsidence (30 CFR 817.121).

As the floor and roof of the salt mine converge under the weight of the overburden, the overlying shale and limestone beds (overlain by glacial till and alluvium) will subside over time. The design plan is for the overlying beds to subside imperceptibly over many years, without damage to surface structures or to wells, aquifers, or surface waters. This "trough subsidence" design objective is employed commonly in the salt, potash, and coal mining industries.

Convergence rates can be and normally are monitored. Unexpected increasing convergence rates can be a sign that extraction in that area of the mine should be reduced or stopped. By reducing the extraction ratio near the perimeter of the mined area, the horizontal deformity, or strain, is reduced. The effect is to minimize the likelihood of rupture of the overlying material, and to minimize the potential for a sudden collapse, a possible surface depression (or sinkhole), or the likelihood that water in overlying water-bearing strata will drain into the mine.

The objective of the mine design is to avoid sudden collapse and flooding, and to plan for gradual trough subsidence. From a regulatory standpoint, this objective minimizes the likelihood of damage to surface property, and a potential for brine contamination of overlying ground or surface waters.

Experience shows that this objective was achieved for almost a century using a large pillar design at Akzo's nearby Retsof mine. However, after the pillar design in a part of the Retsof mine was modified to use "yielding pillars" in an area that was too wide to be supported by the overlying rock, a collapse occurred. That event is discussed below.

The Retsof Mine

The collapse and flooding of Akzo's Retsof mine in 1994 is presumably the primary motivation for this application to develop the proposed new rock salt mine at nearby Hampton Corners. Up to mid-1994, Akzo was producing approximately 4 million tons per year of rock salt from the Retsof mine, located approximately three miles northwest of the proposed Hampton Corners site. Retsof is in the Towns of York, Geneseo, and Leicester in Livingston County. The Retsof mine, as of 1993, was the largest salt mine in the nation. However, in March 1994, a roof collapse above a mined area designed to be supported by "yielding pillars" allowed a significant influx of water from overlying aquifers. By the end of 1995, the 6,000 acre Retsof mine was flooded and abandoned. Akzo and the DEC are continuing to evaluate the consequences of the Retsof collapse, including the potential for solutioning of salt and contamination of subsurface or surface water supplies by saline water, as well as the effects of subsidence at the surface, including sinkholes above the collapsed area, and damage to surface properties.DEC has been provided with an independently prepared mining engineering report on the Retsof Mine collapse. This report concludes that "the principal cause of the mine collapse is the use of yield pillars in an area where solid rock cover is insufficiently thick to accommodate the formation of a wide arch... The rock arch that formed in the overburden was too wide for the applied load and collapsed." See report by John T. Boyd Company to DEC's Director of Mineral Resources, submitted August 21, 1995 at R. 200-255). This conclusion does not appear to be significantly disputed. However, it is not the purpose of this decision, or of this hearing, to investigate the Retsof collapse. But the Retsof collapse is relevant, especially identification of its principal cause, since it gives information as to how similar events can be avoided in the future.

The Boyd Report states that no long-term adverse effect on bedrock aquifers is anticipated from the collapse at Retsof. (Report, p. 5-13, R. 251). Thus, the Retsof mine's collapse is not only the impetus for Akzo's desire to develop the new Hampton Corners mine, but also gives rise to concern about the environmental consequences of the development of a new rock salt mine at Hampton Corners. These concerns focus on the possibility and consequences of contamination of local ground and surface water, loss of well water sources, subsidence and the potential for related property damage.

Public Interest In the New Mine and the Need for Rock Salt

In addition to giving thorough consideration to the concerns expressed by local citizens, landowners, and environmental groups about the proposed new mine's potential environmental impacts, DEC Staff has been informed through the hearing process of Akzo's desire to move forward with construction, in order to supply the demand for highway deicing salt in New York State and elsewhere. This matter has been approved for expedited review at DEC. Akzo's customers, including New York State agencies and local governments, have in the past been supplied by the former Retsof mine. The State agencies, municipalities, and others who need large quantities of rock salt for highway safety reinforce the importance of a competitive market and a nearby source of supply. Labor unions and local businesses also support development of the Hampton Corners mine. The Livingston County Industrial Development Agency plans to provide financial assistance pursuant to special New York State legislation (L1995, c. 54) in order to encourage development of the mine and the related railroad spur.

Thus, there are strong public interest factors favoring development of the proposed mine. On the other hand, DEC needs appropriate reasonable assurance that applicable environmental standards and requirements will be met, and that public health, safety, and property will be protected if the project is to go forward.

Procedural Status

Notice of a complete application for the project has been published. Three public legislative hearing sessions were held on November 1 and 2, 1995. An issues conference was held on November 8-10, 1995. Comments have been received on the DEIS and the Mined Land Use Plan, as well as the related permit applications for the project. At the public hearing and subsequent issues conference, Staff had circulated proposed permits with draft conditions. The draft MLRL permit was modified at and after the issues conference, motivated significantly by comments of the Town of Geneseo, which supports the project provided that any final permit addresses its concerns as manifested in the revised draft permit. On the other hand, environmental citizen groups PACE and RAGE continue to object and press for an adjudicatory hearing on a variety of issues.

The testimony at the public hearings and comments received on the DEIS on Akzo's proposal and on Akzo's permit applications under the Mined Land Use Plan express both local interest in the mine's economic benefits, and skepticism about measures intended to protect local interests, including measures to prevent unacceptable surface subsidence, pollution of surface and groundwaters from salt, depletion of water well aquifers, and effects on local archeological resources.

Applicable Requirements

DEC's responsibility as lead agency under the State Environmental Quality Review Act ("SEQRA") is to "take a hard look" at the project's potentially adverse environmental impacts, and to adopt practicable environmental impact avoidance or mitigation measures, assuming that identifiable adverse environmental impacts are not deemed to be so severe as to warrant outright denial of the project. DEC's substantive responsibilities for permitting the project are under the MLRL, SPDES, and related provisions applicable to stream bed disturbance and water quality certification under Article 15 of the ECL. The MLRL declares that it is the State's policy to foster mining and orderly development of domestic mineral resources consistent with sound environmental management practices, including pollution prevention, protection of property values, and protection of health, safety and welfare (ECL 23-2703). To this end, DEC has the power and duty to issue mining permits in accordance with the criteria of the MLRL and related rules, and to establish mining and reclamation criteria (ECL 23-2707). Each permit application is to be accompanied by a mined land use plan ("MLUP") (ECL 23-2711(2)), that shall specify the proposed mining plan and measures to minimize adverse environmental impacts (ECL 23-2713). The Department's mining regulations at 6 NYCRR Part 420-422 amplify the MLRL's requirements. The method of mining, and plans for minimizing effects on the environment, property, health, safety and welfare are to be incorporated in the MLUP and to govern the permittee's operations.

Within this general format, case-specific permit conditions are developed as appropriate for individual mines. The Department's past experience with MLRL permits and mining plans has focused on surface mines, such as quarries and gravel pits, but not on underground mines. However, the applicable statutory and regulatory criteria for the underground Akzo project are the same as those for surface mining projects, in that minimizing adverse environmental impacts and protection of property, health, safety and welfare are the governing concerns of DEC. Within these criteria, case-specific requirements are developed and evaluated in connection with permitting.DEC Staff have been assisted by the mining engineers and geotechnical experts from the consulting firm of John T. Boyd Company in evaluation of technical matters arising in the context of this application. Consultants in these areas will continue to be available to Staff in this matter. See Draft Permit Condition 5. As part of this decision, I am requiring that the Memorandum of Understanding between Akzo and DEC concerning the availability of underground mining consultants be completed and approved before permit issuance.

In short, DEC's overall task in connection with these applications is to determine whether applicable water quality and other applicable environmental standards will be met, to fulfill the purposes and criteria of the MLRL, and to carry out the mandate of SEQRA and other applicable laws, including those relating to archeological resources. The immediate question in this decision is whether to affirm in whole or in part, or to reject, the ALJs' December 21, 1995 rulings on issues needing and not needing adjudication.

Subsidence, Groundwater and Surface Water Issues

The ALJs' ruling summarizes the subsidence and groundwater issues as:

  1. Whether the applicant has adequately assessed groundwater resources in order to ensure protection of water supplies; and
  2. Whether the mine design, including setback provisions, pillar design and extraction levels, sufficiently protects against subsidence that would result in damage to water supplies and property. (Ruling, p. 35).

The Ruling further states with respect to groundwater that "there is an adjudicable issue as to whether applicant's groundwater characterization is sufficient to ensure that the mine's design is adequate to protect groundwater resources." (Ruling, p. 15). As to subsidence and setbacks, the Ruling states that there is an adjudicable issue as to the adequacy of the mine design including the setback provision with respect to the rate of subsidence and the potential for a collapse." (Ruling, p. 17).

Adjudication of these issues, as framed in the Rulings, would examine whether information compiled is "adequate" to assess groundwater to "ensure" protection of water," and whether the proposed mine designThe large pillar design is planned See, MLUP, p. 51 and Appendices B and C. "sufficiently protects" against subsidence. In reality, the issues framed by the ALJs propose to develop, refine, and supplement the extensive information already compiled and in the record on the geology, hydrogeology, and rock mechanics of the project area.

PACE's Offer of Proof

As the Ruling indicates, PACE's offer of proof consists of reports by a professor of geology, Dr. Young, and a geological engineer, Dr. Michalski. They assert that Akzo has failed to adequately characterize the geology of the Hampton Corners area, and that subsidence of the surface could occur at an excessive rate. They urge that more data should be collected before making any decisions; if a decision is then made to allow the mine to be developed, Dr. Young urges that the data should be used to establish permit conditions (See Dr. Young's Report, Conclusions, p. 22 at R. 280. See Dr. Michalski's Report at pp. 17-18 at R. 325-326). Subsequent to preparation of those reports, draft permit conditions were proposed by Staff, and then revised further on December 20, 1995.

The Revised Draft Permit

The proffered Young and Michalski Reports need to be considered in light of the proposed draft permit conditions, especially as revised at the close of the issues conference following discussions between the Applicant, Staff and the Town. These conditions address the concerns raised, either directly (i.e., prohibiting multi-level mining), or by monitoring requirements (i.e., subsidence rates and ground water).

The draft permit as of the December 20, 1995 revisionThe complete revised draft permit of December 20, 1995 is at pp. 1740-1747 of the Record For Appeal filed by Akzo. makes the following points, summarized below, which address the substance of concerns raised by Drs. Young and Michalski:

  1. Mining shall be at the B-6 level only (except for specific infrastructure development).
  2. To protect adjacent properties from an excessive rate of subsidence, the amount of salt removed near abutting properties will be restricted (extraction ratio not to exceed 50% within 465 feet of the property line).
  3. Closure rates will be monitored, reported, and a basis for corrective action.
  4. Shallow groundwater levels will be monitored.
  5. Subsidence rates will be monitored; corrective action will be taken in the event subsidence rates exceed those deemed appropriate.
  6. Non-routine mining incidents likely to affect mine stability, ground or surface water, or public health or safety are to be reported and acted upon.

Whether PACE's Offer of Proof Raises Adjudicable Issues

The record of this proceeding leads to the conclusion that the hydrogeological assessment and mine design issues identified by the ALJs (Issues 1 and 2) are not adjudicable. First, these issues as framed do not identify concise issues of fact. On the other hand, an "adjudicatory hearing," by definition, is a hearing for receipt of evidence on issues of fact and arguments on issues of law and fact prior to the Commissioner's decision on the merits (6 NYCRR 624.2(b)). The stated issues essentially propose to hold a hearing to decide on how much information needs to be gathered for decisionmaking rather than for resolution of a focused factual dispute. When considered in light of the whole record, the ALJs' Ruling proposes a hearing on the potential for sudden subsidence and adverse water quality and quantity impacts. However, in light of the draft permit conditions, the issues posed are neither substantive nor significant within the meaning of 624.4(c) of DEC's Hearing Procedures.

They are not substantive in that further inquiry is not necessary as to Applicant's ability to meet the applicable statutory and regulatory criteria. The Department's governing statutory and regulatory criteria essentially require the applicant to provide sufficient information on the geology, hydrology, mine design, and subsidence as to provide the Department with reasonable assurance that water supplies, adjacent properties, and the environment will not be adversely impacted. Staff was satisfied that this had been done, and supports issuance of a permit for the project. Thus, a prima facie case has been made by Akzo. The adjudicatory proponents have the burden to show facts warranting adjudication.

While raising general concerns, PACE has not pointed out specific facts or omissions necessary for a conclusion that it would be reasonable to inquire further. PACE's offer of proof does not raise a significant issue in that the proposed permit conditions as revised already address the uncertainties and concerns raised. A hearing on the proposed issues, while accumulating more information on subjects already studied in depth, is not likely to provide data on which to base alternatives to the currently existing revised permit conditions.

The ongoing monitoring requirements in the draft permit, on the other hand, provide that field data will be collected and used to continually validate or refine design parameters based on actual conditions. A hearing on the issues identified would not resolve disputed facts with evidence, but rather would become a debate among geological and mining engineers over the quantity and quality of information appropriate to make judgments leading to predictions over subsidence rates, the potential for sinkholes, the possibility of dewatering of overlying aquifers and the loss of water supplies, and potential contamination of ground and surface waters with brine. Sufficient information already exists on these matters for the purpose of developing both a conservative mine design and permit conditions. Those conditions both regulate and limit the mine design, and monitor subsidence and groundwater, to provide ample opportunity for corrective action if necessary.

These matters have been examined thoroughly in the DEIS, the Mined Land Use Plan, related reports and the record of the public hearing.See, for example: Analysis of Geotechnical Considerations at p. 57 of the Mined Land Use Plan; Report on Subsidence at Appendix D of the Mined Land Use Plan, supplemented on November 15, 1995 (R. 1157-1180); Subsidence Monitoring Plan, Appendix E of the Mined Land Use Plan (See 1456); Geotechnical data, Appendix H of the Mined Land Use Plan. That information is evaluated in the context of past and present experience. Underground salt mining is not new to Livingston County. The "big pillar" mine design used at Retsof was used successfully there for almost 100 years. That design is specified in the draft permit for Hampton Corners and is conservative.See remarks of Staff's geotechnical consultant at pp. 466-468 of the issues conference transcript (R. 867).. The "yield pillar" design responsible for the 1994 collapse, is not authorized.At the issues conference, Staff's mining consultant stated that with the big pillar design, obtaining more geological data on the overlying strata was not necessary, and would be "academic" (Tr. 500, R. 875). For a yielding pillar design, such information would be needed, however (Id.).

The reports on geologic studies and related information in the record are extensive, and more than adequate for making an informed decision on the permit applications under consideration. That information, together with over 100 years of experience in underground salt mining at Retsof and other locations with comparable geology and depth show that safe, sustained salt mining operations consistent with the proposed permit conditions can be reasonably expected to be carried on at Hampton Corners, without sudden collapse or flooding. Further hearings would not enhance that level of certainty.

The record shows that slow subsidence above the mined area is anticipated as the unexcavated supporting salt pillars deform and the mine floor, roof and pillars converge deep beneath the ground. The rate of subsidence is expected to be imperceptible at the surface, and not to adversely affect overlying groundwater bearing strata. The Applicant's and DEC's engineers have made predictions of subsidence rates at Hampton Corners. Dr. Michalski disagrees (See R. 1490-1497), and asserts that subsidence rates may be greater. However, his assertions are based on subsidence data from the southern part of the Retsof Mine where there exists a deep glacial valley filled with unconsolidated alluvium, which is not comparable to the geology of Hampton Corners. The consolidated shale and limestone overlain by relatively thin alluvium at Hampton Corners more closely resembles the northern portion of the Retsof Mine, where subsidence problems have not been significant (See, MLUP, Appendix A, Figures 4-A, 4-B, and 4-C). Adjudicating a disagreement over subsidence rates is not necessary. The big pillar mine design in geological conditions comparable to those at Hampton Corners (i.e., the northern section at the Retsof Mine) is shown by experience to protect against collapse and contamination. The permit conditions provide for monitoring and protective measures. These factors cancel out the need for adjudication on that issue. The subsidence rate, of itself, is not a quantitative criteria (See R. 244). The actual rate of subsidence will be known when in situ measurements are taken. The draft permit requires such measurement, in addition to groundwater monitoring. Moreover, draft permit condition 8(c) establishes a 465 foot buffer zone that limits the extraction ratio to 50% or less.See Issues Conference transcript at pp. 467-469 (R. 867). As the subsidence rate is reduced where the extraction ratio is lower, condition 8(c) provides reasonable assurance that adjacent properties will be unaffected. Extraction rates, moreover, can be reduced based on observations if the data should so indicate. The information presented by Young and Michalski do not suggest to the contrary. In fact, they support the concept of a buffer area and attention to observable data.

Neither PACE nor any other party has identified a specific statutory or regulatory criteria as to which applicant is unlikely to satisfy. Their offers of proof, at best, raise potential uncertainties. They have not contested the permit conditions in their response to Akzo's appeal. Additional hearings would prolong, but not meaningfully enhance the quality of, the final outcome. An adjudicatory hearing, if held, would dissolve into an academic debate.

In sum, I conclude that the first two issues raised in the ALJs' ruling are neither substantive nor significant, especially in light of the revised draft permit of December 20, 1995. PACE has not met its burden of persuasion that there are factual issues in dispute for adjudication on these issues. Instead, PACE offers speculation, conclusions, and uncertainties amounting to "what ifs." Yet, before the hearing, its bottom line comment was that permit conditions against multilevel mining and establishing setback criteria to protect adjacent properties were needed.See "Geologic Critique of SEQR Draft Environmental Impact Statement" by Dr. Richard A. Young, October 27, 1995, at p. 23 (R. 280). See also PACE's Memorandum of Law of November 20, 1995 at p. 12: "PACE believes surface subsidence concerns may be resolved through a special condition" (R. 1300). These items are addressed in the revised draft permit.

Permit Conditions

The revised draft permit conditions dated December 20, 1995 address the concerns about multilevel mining, subsidence and hydrogeology raised by PACE, as I have noted above. As to those conditions, I note that the Department retains the right to require additional protective measures to be implemented, as necessary (Condition 2). Other provisions concerning monitoring and reporting provide the basis on which to evaluate and require implementation of corrective measures as and if necessary. Condition 5 requires Akzo to fund consultant services to the Department pursuant to a Memorandum of Understanding (MOU). I am requiring as part of this decision that the final terms of that MOU will be subject to my approval prior to final permit issuance, it being my intent that the funding provided should be adequate in amount and over time to assure that professional consultant services will be available to the Department and be adequate to provide meaningful input. I anticipate that this requirement will be carried forward with permit renewals, recognizing that the increasing life of the mine may warrant increased funding.

Archeological Resources

The third issue which the ALJs identified as being adjudicable relates to archeological resources. As summarized at p. 36 of the Rulings, the issue is: "Whether the applicant has sufficiently analyzed the effects of the life of the mine (9,000 acres) on the resources in that area to ensure that appropriate mitigation measures are taken to protect such resources." At p. 19, the Rulings conclude "...that there is an issue for adjudication as to whether the impacts of the 9,000 acre underground mine are significant to warrant further study of cultural resources outside the mine site."

The project's potential impact on cultural resources has been addressed in the DEIS (See DEIS at 22.1.9 and Appendix L).Appendix L is a 119 page cultural resource study, with three additional appendices. Archeological resources within the mine site and within a mile of the mine site were identified and examined.The ALJ's report mentions 53 sites within a mile of the site and 28 archeological sites within the mine site. (at p.18). However, the 186 acre mine site is only a small portion of the 9,000 acre mine area, beneath which salt will be excavated at a depth of approximately 1,300 feet beneath the surface. The issue as framed by the ALJs is whether the surface above the 9,000 acre mined area outside of the 186 acre mined site is likely to be disturbed by underground mining to such an extent as to require archeological investigations in addition to those undertaken on and near the mine site.

RAGE's petition for party status argues that the entire 9,000 acre surface area is affected land which will be disturbed by mining. On the other hand, the mining plan and design is intended to allow only imperceptibly slow and gradual subsidence of the surface, which would not affect or impact archeological sites (located generally quite near the surface) in the mine area. DEC Staff does not consider this type of subsidence to constitute a disturbance of the degree or character as to invoke the applicable provisions of the New York State Parks, Recreation and Historic Preservation Law, 14.09, or the Indian Law (12-a) which engendered the studies of the mine site. Also, General Condition 13 of the proposed mining permit mandates that work stop in any area in which archeological or structural remains are encountered during excavation, pending notification to DEC and permission to resume.

This issue boils down to whether subsidence, or other surface manifestations of salt extraction some 1,300 feet beneath the surface is sufficiently likely to impact archeological remains at or near the surface as to require archeological study at this time. One speaker at the issues conference, Dr. Kintz, alluded to that possibility (Issues Conference Tr. 550-555).

It is my judgment that the provisions of the Indian Law and State Historic Preservation Act do not require archeological investigations beyond those which has already been done, and which may additionally be required under the permit. This determination, I believe, appropriately balances the State's interest in preservation of archeological resources with its mandate under the Mined Land Reclamation Law to foster the development of mineral resources.

On the other hand, Akzo and the citizens of Livingston County interested in and concerned about cultural resources should continue to seek to protect and enhance archeological resources, and DEC Staff is admonished to interpret general permit Condition 13 in light of this objective. In the event of alterations in surface expression above the mined area and resultant exposure or revelation of archeological sites, appropriate measures will need to be taken by the applicant, under the direction of the Department. However, I see no practical reason, based on the record, to conduct an adjudication on whether there should be further study of potential effects on archeological sites, or whether applicant's analysis has been sufficient. The permit requires such investigation and measures as may be appropriate when and if archeological sites become exposed or may be affected by the project. However, as the mining plan is expected to avoid surface disturbance outside the mine site, and as the avoidance of such disturbance has a material basis in fact and experience, based on the "big pillar" design, I see no practical necessity for an adjudicatory hearing on this issue.

Railroad/PCP System

The fourth issue found by the ALJ to warrant adjudication is whether a pneumatic capsule pipeline (PCP) system is a viable alternative to the rail spur, in order to mitigate harm to agricultural lands.

The ALJs' report documents and concludes that alternative routings for a proposed railroad spur from the mine to the main track of the railroad were thoroughly considered. The report further explains that the Commissioner of Agriculture and Markets ("A&M") determined in August 1995 that the selected rail spur route, while occupying some 17 acres of prime farmland, "would not have an unreasonably adverse effect on the continuing viability of farm enterprises within the agricultural district affected." (See Commissioner McGuire's August 3, 1995 letter to the Director of LCIDA, at R. 1879). His determination included consideration of mitigation measures, the high/non-competitive cost of non-rail alternatives, safety and environmental concerns associated with alternative routes, and the express preferences of landowners. The non-rail alternatives considered by the Commissioner of Agriculture and Markets and also in the DEIS (at 3.2.2.6 and Appendix N) included consideration of the PCP system (See also R. 2107-2155). In November 1995, LCIDA obtained a further engineering evaluation of the PCP system as an alternative to the rail spur option. That study concluded that the PCP alternative would cost $11.9 million, as compared to $5.9 million for the rail spur (See Report of Clark Patterson Associates to LCIDA, November 1995; R. 1850-1857). The State Department of Transportation ("DOT") has commented that the PCP system is not suited for application to the Hampton Corners mine (Letter of Joseph Boardman to William Vandersteel, October 4, 1995 at R. 1877). DOT stated that this is because once salt is loaded into railcars, it stays on rail to its destination distribution points. Therefore rail loading at the mine, rather than loading salt into a PCP and trans-shipping it at the end of the PCP line to rail, makes no sense from a materials handling, energy conservation, and cost standpoint.

I conclude that the record shows no adjudicable issue to exist with respect to the PCP non-rail alternative. Under SEQRA, this alternative, and alternative rail routings, have been thoroughly examined and a seriously "hard look" has been taken. From a cost and materials handling standpoint, the PCP system does not appear to be reasonable. While a degree of loss of agricultural land is unavoidable, the Commissioner of Agriculture and Markets has determined that the effect of this loss will not be unreasonably adverse, a finding with which I concur for purposes of SEQRA. No adjudicable issue has been raised.

ADR Permit Conditions

Staff appeals from that part of the ALJs' Ruling that directs that the ADR agreement be incorporated in the final permit. Staff's opinion is that the ADR provision is essentially a private agreement, without a prominent role for Staff, because it relates primarily to processing damage claims. Thus, Staff argues that there is not a sufficient connection between Akzo's obligations under the ADR provision and Staff's direct responsibilities to administer and enforce the permit to justify its inclusion. The ALJs, on the other hand, observe that the ADR provision is a mitigation measure designed to resolve community concerns.

The ADR provision (R. 1651-1657) has three subdivisions: Background, Mining Damage Claims Process, and Dispute Resolution Options. The Background portion discusses and interprets other permit conditions, noting that General Condition 6 of the mining permit imposes responsibility on Akzo for damages arising out of the construction and operation of the mine. It refers to the insurance provision (Special Condition 4b), replacement or restoration of water supplies, as determined by DEC (Special Condition 11b), remediation of surface damage caused by subsidence (Special Condition 13), and inventorying of structures and wells. This portion of the ADR provision is not of itself intended to be an operative statement of the permittee's obligations which are established by the referenced conditions, but rather is introductory to, and a preliminary explanation of, the basis for the following two portions on Claim Process and Dispute Resolution Options. The latter two portions, as Staff indicates, do not directly involve or create Staff responsibilities. They are made for the benefit of private parties who may assert damage claims attributable to mining. They are to be implemented by Akzo and private parties outside of DEC, in courts or by arbitrators or mediators without DEC necessarily being involved.

The ALJs' practical concern is that the ADR provision should be readily available and known, so that its beneficiaries will be aware of it and be able to employ it when and if necessary. They suggest that it be made an appendix to the permit. This suggestion has merit, and, with the above explanation, should resolve Staff's concerns as well. Therefore, Staff should reference the ADR provision in the final permit, and make the ADR provision a permit appendix for the benefit of those for whom it is intended to protect and assist. However, the ADR provision, of itself, shall not be interpreted as imposing responsibilities on Staff, Staff's obligations being derived from the Permit's General and Special Conditions, and not from the appendix.

Issues Found Not To Be Adjudicable

The Appeal by RAGE has been addressed above under the topics of "Archeological Resources" and "Railroad/PCP System," and is denied.

The Appeal by PACE from issues found by the ALJs not to merit adjudication is denied, and the ALJs' Ruling is affirmed as to those issues. PACE has neither made competent offers of proof, nor met its burden of persuasion of raising substantive and significant issues as to the upgradient stormwater issue or the SPDES Permit issues that it raised. The same is true as to its proposed air emission permit issue.

The appeals by the Town and LCIDA are mooted by this decision.

Conclusions

In conclusion, I find that there are no issues to be adjudicated. I remand this matter to Staff for completion of the FEIS and other procedural requirements, for review of the MOU regarding consultant services, and for issuance of the final permit in accordance with this decision. This shall be the final decision of the Commissioner in this matter.

For the New York State Department
of Environmental Conservation
/s/
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
January 31, 1996

Attachment - Errata Sheet to Issues Ruling

Errata

The following errata in the Issues Ruling are noted and entered.

  1. Page 9, line 23: "December 7" should read "November 8."
  2. Page 20, line 28: "Canaseraga" should read "Genesee."
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