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Akzo - Ruling, December 21, 1995

Ruling, December 21, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of Akzo Nobel Salt Inc.
for permits to construct and operate an underground salt mine in Livingston County

(DEC Project Nos. 8-2428-00019/00001-0,
8-2428-00019/00002-0, 8-2428-00019/00003-0,
8-2428-00019/00005-0 and 8-2428-00019/00007-0)

RULINGS OF THE ADMINISTRATIVE LAW JUDGES ON

PARTY STATUS AND ISSUES

BACKGROUND AND PROJECT DESCRIPTION

Akzo Nobel Salt Inc. ("Akzo" or "ANSI") proposes to construct and operate a new underground salt mine in Livingston County, New York. To that end, it has submitted applications, for a mined land reclamation permit (ECL Article 23), a State Pollutant Discharge Elimination System permit (SPDES, ECL Article 17), a stream bed disturbance permit and water quality certification for the SPDES outfall (ECL Article 15) and with the Genesee & Wyoming Railroad ("G & W") for a stream bed disturbance permit and water quality certification for the proposed railroad bridge over Canaseraga Creek (ECL Article 15) and with the Towns of Mt. Morris and Groveland for a water supply permit (ECL Article 15).

The proposed mine, known as the Hampton Corners Mine, will have its aboveground facilities and center at a 186 acre site located in the Towns of Groveland and Geneseo, New York, hereafter referred to as "the mine site." The proposed mine site is bounded by Interstate Route 390 (I-390) to the north and west, Routes 63 and 408 to the South and Route 63 to the east. The Canaseraga Creek and Genesee River are located immediately west to I-390. Akzo has proposed development of approximately 55 acres of the 186 acre parcel for construction of surface facilities including office space, equipment and maintenance buildings, shaft head frames and hoist buildings, rail and truck loading facilities, salt handling and storage areas, and stormwater control ponds.

The applicant's life of mine project is 9,000 acres ("mine area") for a period of approximately 50 years. Akzo has purchased or optioned mineral rights for the mine area which lies to the east of the mine site within the Towns of Groveland and Geneseo. Akzo projects that it will have 1,100 tons per hour hoisting capacity; 3.5 million tons per year (TPY) of bulk rail shipments; 64,050 tpy of packaged salt products; 30,000 tons of enclosed bulk storage; 4 million tpy of salt production; 889,600 tpy of bulk truck shipments; 500,000 tons of outside bulk storage; 2 production shifts per day, 5 days per week, 250 days per year; and 3 maintenance shifts per day, 5 days per week, 250 days per year. The applicant proposes that final reclamation of the site will entail dismantling of all salt handling, processing and storage capabilities and the retention of support buildings, transportation and stormwater management infrastructure for some future industrial or commercial use.

The 9,000 acre underground mine will be developed in the B-6 bed within the Vernon Formation which is located between 1050 and 1700 feet below the ground surface in the mine area. Akzo will access the mineral deposits to which it has obtained mineral rights by two vertical shafts sunk from the surface.

In addition to the mine itself, the project, as proposed, entails a new railroad spur to the existing G & W line that will enable Akzo to ship the salt product by rail. The proposed alignment would cross the Genesee Valley parallel to Route 408 at an average distance of 800-1000 feet to the north. The proposed single track configuration would require a 100 foot wide easement encompassing approximately 30.7 acres, 17 acres of which is prime agricultural land and 3.7 acres is state-owned along Canaseraga Creek. G & W would construct an earth embankment from 4-13 feet in height with an average height of 6 feet. The bottom width would be less than 45 feet. Canaseraga Creek and adjacent federal wetlands would be crossed by a pier-supported bridge for which the railroad has submitted a stream bed disturbance permit application as part of this review. G & W proposes that the traffic on the spur would be a single 100-car train traveling to and from the mine site, five days a week. As the spur would cross agricultural lands, G & W submitted a notice of intent for review under Agriculture & Markets Law 305-4 and the Commissioner of the Department of Agriculture & Markets has approved this proposal. One farmer, petitioner Myron Brady, has brought a challenge in the Appellate Division, Fourth Department to G & W's proceedings to condemn a portion of his land for the spur.

The Towns of Groveland and Mt. Morris have made joint water supply applications to the N.Y.S. Department of Environmental Conservation (DEC or the Department) to provide water service to the mine site which are part of this review. The new 12-inch water line would replace the existing service along Route 408 west of the site, continuing east along the mine site along East Groveland Road and terminating at a proposed 600,000 gallon water tank situated near the intersection with Swan Hill Road. A new water district would be created in the Town of Groveland to service the mine site and manage the proposed water system.

Rochester Gas & Electric (RG&E) would provide power from its existing 115,000 volt transmission line in the Town of Leicester, New York. The switchyard would be located within a 200 square foot area on six acres of land west of Route 36, south of and adjacent to the G & W railroad. The service line would be constructed along wooden poles generally along Perry Road and across the Genesee River and I-390 (where tubular steel poles would be used) to the mine site, approximately 3.6 miles. There are no DEC permits related to this aspect of the project.

The Towns of Mt. Morris and Groveland are proposing the creation of new sewer districts to service the mine. A new sewer line would be created along Route 408. While DEC reviews sewer service plans, there are no DEC permits required for this service.

New York State Electric & Gas will provide natural gas line service to the mine site at approximately 20,000 cubic feet (MCFH) per hour of non-interruptable service and an additional 40 MCFH of interruptable service. The 6-inch diameter plastic pipe gas main would be located east of the mine site primarily along Abele Road, East Groveland Road and Groveland Hill Road. The proposed pipe alignment would generally be placed within the limits of the existing public road right-of-way along these roads. There are no DEC permits required for the proposed gas service.

With respect to its SPDES permit application under review here, Akzo proposes to capture all run-off connected with industrial uses in its brine pond and then to allow a controlled discharge to the Geneseo River pursuant to the permit limitations. Akzo will discharge effluent from its building drains to an oil/water separator and then to the sanitary sewer. The SPDES permit provides for limits and monitors for flow, cyanide, pH, oil & grease, total dissolved solids (TDS) and chlorides. There will be two monitoring points for this discharge -- one at the historic point used for the Retsof facility located 10 miles downstream from the Retsof discharge point and a new background monitoring point located one mile upstream from the Hampton Corners SPDES discharge point. While the Hampton Corners mine would add a second source of the applicable pollutants to the Genesee River, the SPDES permit does not increase the load on the receiving water body but instead limits the two discharges to the original pollutant limitations. In addition, the applicant proposes to divert all stormwater coming onto the site in order to protect the quality of site runoff being discharged to surrounding water bodies.

On March 14, 1994, the applicant's Retsof mine, located in the Genesee Valley east of Cuylerville, was subject to a collapse which has been the source of much controversy in the Livingston County community. Prior to its collapse, the Retsof mine was the largest producer of salt in the United States and the second largest facility in the world. The mine collapse resulted in the breach of the aquifer and flooding of the mine. Consequently, within a few months of the collapse, areas were affected by the resulting subsidence including the bridge on State Route 20A that crosses the Genesee River to Cuylerville from the Town of Geneseo forcing the bridge's closure. Substantial sinkholes resulted from the collapse and in addition, homes and private wells may have been affected by the collapse. The mine's closure also forced many mine employees out of work. Full impacts of the Retsof collapse are still being assessed by governmental agencies and the applicant.

While the cause of the mine's collapse remains disputed, consultants for the Department have concluded that Akzo's use of small pillar mining methods combined with an inadequate assessment of the geology overlaying the Retsof facility was responsible. As a result of community concerns, Akzo entered into a memorandum of understanding (MOU) with the Department and the New York State Attorney General's office. This MOU provided for the company's response to damage caused by subsidence related to the Retsof collapse including a contingency plan for water supply, a plan for property damage and mortgage guaranty and a plan for subsidence monitoring.

It is acknowledged by the applicant that gradual subsidence is inevitable as a result of the salt mining process. With respect to Hampton Corners, Akzo's position is that a rapid subsidence event such as the one that occurred at Retsof is not typical and will not occur based upon proper mine design. However, the proposed mined land reclamation permit for Hampton Corners provides, inter alia, for Akzo's restoration or replacement of water supplies determined by the Department to be no longer useable due to Akzo's operation, for notification to DEC prior to any drilling of wells or boreholes within the Life of Mine area and the submission of maps depicting such activities, the submission of a remediation plan to the Department for any surface damage due to subsidence caused by Akzo's underground mining activities, the submission of monitoring reports including in situ rock mechanics to help monitor subsidence and written notice to surface property owners in advance that they are within the coming year's anticipated mining area.

SEQRA

DEC is the lead agency for this project under ECL Article 8, the State Environmental Quality Review Act (SEQRA). As lead agency, DEC determined that the project is a Type I action under SEQRA requiring the preparation of a draft environmental impact statement (DEIS) for the project. DEC prepared a scoping outline and held two public scoping sessions on January 12, 1995. Based upon the comments from the public and involved agencies during these meetings and written comments, DEC issued a final scoping document on February 22, 1995. The DEIS addresses the existing conditions and potential environmental impacts related to noise, groundwater, socio-economic issues, altered viewshed, subsidence, construction activities, traffic, air pollution, surface waters and historic and archeological resources.

DEC declared the DEIS and its related components complete on September 20, 1995. Draft permits under the above mentioned sections of the Environmental Conservation Law were made available to the public prior to the legislative hearing sessions which were held on November 1 and 2, 1995. While the Department staff has determined that Akzo's proposal meets the applicable statutory and regulatory requirements, public comments, both oral and written, were received by DEC until November 15, 1995. A final EIS (FEIS) will be prepared to address all substantive comments received during the public comment and hearing process. The FEIS will be available for agency and public comment for at least ten days and thereafter, a statement of findings will be prepared by DEC and the other involved agencies. For purposes of this review, the FEIS is made part of the ALJ's hearing report to complete the FEIS, contingent upon the Commissioner joining issues for adjudication. 6 NYCRR 624.13(c).

LEGISLATIVE HEARINGS AND PUBLIC COMMENT

A Notice of Public Hearing, dated September 20, 1995, was published in the Department's Environmental Notice Bulletin on September 27, 1995. It was also published as a legal notice in the Livingston County News, the Livingston County Leader and the Clarion newspapers on September 28, 1995, and in the Rochester Democrat and Chronicle newspaper on September 23, 1995. As announced in the hearing notice, legislative hearing sessions were held on the evening of November 1, 1995 and on the afternoon and evening of November 2, 1995 at the Army National Guard Armory in Geneseo, New York. Several hundred people were in attendance at each legislative session and over one hundred speakers gave presentations. The comments were almost split evenly among people in support of and those who were either in opposition to the project or who voiced serious concerns.

Based upon the events at Retsof, many community members are understandably concerned about the permitting of the new mine at Hampton Corners. In addition, many individuals who worked in the Retsof mine or who have businesses related to the mine are concerned about potential negative economic effects in the event that the Hampton Corners mine was not able to open. These concerns were presented in the oral presentations provided by 106 speakers during the three legislative hearing sessions held during November 1-2, 1995 as well as the over 300 written comments received during the public comment period.

The specific areas of concern addressed at the hearing and in written comments were directed largely at issues of potential subsidence; effects to drinking water supplies due to subsidence or salt intrusion; the potential for use of the mine as a waste incinerator ash disposal facility; effects on historical and archeological resources, particularly those that relate to Native Americans; water pollution from blowing salt or from other activities at the mine; loss of aesthetic values due to changes in viewshed caused by Akzo's surface structures; noise from additional train traffic; truck traffic. Those in support of the mine raised issues concerning jobs, Akzo's relationship to the general economy of the area and the availability of salt.

The purpose of the SEQRA and public hearing process is to ensure that the community is provided an adequate opportunity to participate in the review and comment on the application in order that a complete record is developed upon which a careful determination can be formulated.

ISSUES CONFERENCE

An issues conference was held on November 8-10, 1995 at the Days Inn in Geneseo, New York. The purpose of the conference was to determine what issues bearing on permit issuance would require adjudication and who, among the filers for party status, would participate in an adjudicatory hearing, should one be required. Participating at the issues conference were the applicant, DEC Staff, and various prospective intervenors.

The applicant was represented by Neal Madden, Esq., of Harter, Secrest & Emery of Rochester. Assisting Mr. Madden was Kenneth Payment, Esq. and Edward F. Premo, III, Esq. also of this firm.

DEC Staff was represented by Paul D'Amato, Esq., Regional Attorney of the Department's Region 8 office, Avon.

Timely filings for party status were received from the Town of Geneseo, including the Town Board and the Town Planning Board (collectively herein, the Town); Protect A Clean Environment (PACE), a local not-for-profit corporation organized for protection of the natural environment; the League of Women Voters of Livingston County (the League), half of this organization's members live and own property in the Town of Geneseo; Retsof Local No. 8-763 of the Oil, Chemical & Atomic Workers International Union, AFL-CIO, a trade union which has represented the Akzo salt miners for thirty years; Regional Action Group for the Environment (RAGE), a local public interest group along with Haudenosaunee - Six Nations Confederacy representing six Native American nations, Myron O. Brady, Sr. and Brady Farms, Inc. who own a portion of agricultural land that the G & W railroad proposes to take by eminent domain in order to build the railroad spur and Douglas J. Mothersell, a member of RAGE who owns property within the footprint of the mine area; and the Livingston County Industrial Development Agency (LCIDA) which is an involved agency in this project based upon its proposals to provide financial assistance in connection with the proposed mine and related facilities.

The Town was represented by Terry Richman, Esq. of Underberg & Kessler of Rochester, New York and James A. Coniglio, Esq. of Presutti & Coniglio of Geneseo, New York.

PACE was represented by David J. Seeger, Esq. of Buffalo, New York. Mr. Seeger was assisted by his associate, Suzanne Villacorta, Esq.

The League was represented by Ms. Frances Millard of Geneseo, New York.

The Union was represented by Ray White, the president of the Retsof Local.

RAGE, Haudenosaunee-the Six Nations Confederacy, Myron Brady, Brady Farms, Inc. and Douglas J. Mothersell (hereinafter referred to collectively as RAGE) were represented by Valerie Knights, Esq. of Caledonia, New York.

LCIDA was represented by Ruth E. Leistensnider, Esq. of Nixon, Hargrave, Devans & Doyle of Albany, New York.

Prior to the issues conference, the DEC staff determined that the mine as proposed and conditioned by staff would meet the statutory and regulatory requirements applicable under the Environmental Conservation Law (ECL). Weeks before the issues conference, for public review, the staff circulated copies of draft permits pursuant to Articles 15, 17 and 33 of the ECL. The draft permits contain the standard and special permit conditions designed to ensure project conformity with the statutory and regulatory criteria. Department staff is prepared to issue the permits as revised during the issues conference and during the subsequent discussions between the parties and the applicant has no objection to these terms. Therefore, as between Akzo and DEC staff, there are no proposed issues for adjudication.

During the issues conference session, various issues were proposed by the prospective intervenors in their filings for party status. Each issue was addressed in oral arguments by the proponent of the issue and responded to by DEC staff and Akzo representatives. The record of the issues conference closed on December 18, 1995 with the receipt of the PACE filing dated December 15, 1995.

Party Status

According to the Department's permit hearing regulations, an issue proposed by a prospective intervenor is adjudicable if it is substantive and significant. An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to a project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application, DEIS, draft permits and related documents, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. [6 NYCRR 624.4(c)(2)]. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. [6 NYCRR 624.4(c)(4)].

Although it has been acknowledged by the Department that prior to the Retsof mine collapse DEC has not been actively involved in overseeing the underground mining industry, both the applicant and staff agree that the Department has such authority pursuant to ECL Article 23, the Mined Land Reclamation Law (MLRL) and its implementing regulations apply to the Hampton Corners project. Thus, in addition to SEQRA and any other relevant laws and regulations under the ECL, proposed issues have also been considered in light of the Department's regulations for mined land reclamation projects contained in 6 NYCRR Parts 420-425.

In order to obtain party status, a petitioner must also meet the requirements in 6 NYCRR 624.5(d) which provide that the petitioner must have filed an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (2); the petitioner has raised a substantive and significant issue or can make a meaning full contribution to the record regarding a substantive and significant issue raised by another party and has an adequate environmental interest. At the outset of the issues conference, the applicant stated that it did not contest the environmental interest of any petitioner and the staff did not make any arguments to the contrary. All the parties with the exception of the Union which has requested amicus status have applied for full party status. The League initially requested amicus status but changed its request during the issues conference by way of a supplement to its petition requesting consolidation with PACE on the issue of adequacy of protection of private water supplies. The LCIDA initially applied for full party status, however, at the issues conference, Ms. Leistensnider stated that, in the alternative, it requests amicus status.

Pursuant to 624.5(d)(2), amicus status will be granted where the petitioner has filed an acceptable petition, has identified a legal or policy issue which needs to be resolved by the hearing and has demonstrated sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record.

Both the Union and the LCIDA support the application of Akzo. Neither party has raised an issue that is either substantive or significant. However, each seeks to ensure that the economic and employment issues related to the project are fully considered in the balancing of concerns related to the permit decision. Because neither party's petition meets the requirements of 624.5, we cannot grant either full party or amicus status to these entities. It is clear that their interests will be well represented by the applicant. However, we do encourage the Union and the LCIDA to contribute to the record by assisting the applicant where they deem it appropriate.

With respect to the remaining filings, we discuss party status inthe context of our rulings on the proposed issues.

PACE Motions

On behalf of PACE, as part of the petition for party status, Mr. Seeger made a motion for discovery of certain documents relating to water quality issues, stormwater management plans, subsidence and the material safety data sheets for certain chemical additives used in Akzo's salt products. In addition, at the issues conference, Mr. Seeger raised the issue of the status of its FOIL requests to DEC. Apparently, with respect to the FOIL issues, the requested discharge monitoring reports (DMRs) and other SPDES documentation have either been provided by DEC staff or will soon be.

With respect to material related to the Retsof mine, DEC has provided part of the requested documents and has withheld some of them. PACE and Akzo filed appeals based upon DEC's denial of trade secret status to some of the documents. We directed that Regional Attorney D'Amato write to the DEC General Counsel requesting an expedited review of the appeals in light of these proceedings. That letter was sent to the General Counsel on December 7, 1995.

By decision dated December 1, 1995, G.S. Peter Bergen, Assistant Commissioner for Hearings, ruled that none of Akzo's documents that were subject to the FOIL appeals were entitled to trade secret status. By decision dated December 8, 1995, Assistant Commissioner Bergen provided PACE with a list that identified which documents he had determined were releasable under FOIL and those which were exempt from disclosure.

By letter dated December 15, 1995, received by this office on December 18, 1995, PACE indicates it has received FOIL documents from staff, and moves to supplement its filing for party status by December 22, 1995 in consideration of the recently released FOIL documents. As explained below, this ruling grants PACE party status. Therefore, supplementing its petition is not necessary. Any new information which PACE seeks to rely upon may be presented in its direct case in the adjudicatory proceeding. Similarly, PACE's earlier motions to supplement its petition and to require supplementation of the DEIS, are denied.

With respect to PACE's other discovery demands, we denied its request, without prejudice, pursuant to 6 NYCRR 624.7 which provides that discovery is not available prior to the issues conference absent extraordinary circumstances. In light of our issues rulings below, PACE may determine to renew the request.

The Town's Motion

In brief, in its petition, the Town requested a three week adjournment based upon the availability of a mining consultant from the Colorado School of Mines. Based upon the lengthy notice period for these proceedings, we declined the Town's motion, however, we provided counsel with the opportunity to move to supplement its filing based upon the Town's consultant's review.

We find issues for adjudication with respect to subsidence, water supplies, archeology and the railroad spur. Following is a discussion of these issues.

Hydrogeology & Geology - Subsidence & Water Supply

All the petitioners, particularly PACE, the League and the Town, have argued in petitions, at the issues conference and in lengthy post-issues conference submissions that the applicant has failed to adequately assess the hydrogeology and geology at the proposed new mine site in designing the mine, determining adequate setbacks and potential effects to water supplies. As mentioned above, while not directly at issue in this permit proceeding, the collapse of the Retsof mine, resulting in property damage and loss of potable water supplies, remains an example of exactly what the community seeks to avoid in the development of any future mine.

  1. Proposed permit conditions

    At the issues conference, the parties identified several possible permit conditions that the parties would address further among themselves in order to see if these conditions could resolve the concerns regarding adequate setbacks, water supplies and subsidence. To the extent that any permit condition resolves an issue between the applicant and the Town or any other potential party, our understanding is that the permit condition will apply generally, e.g., setbacks are for the entire site and not just for the Town. In staff's letter dated December 15, 1995, Paul D'Amato states staff's intent to circulate a revised permit reflecting new and revised proposed permit conditions some time during the following week.

    At the conference itself, in response to concerns about subsidence caused by multi-level mining, the applicant clarified that it would be confined to single level salt extraction. In the event Akzo decided to pursue mining on additional level(s), it would have to apply for a major modification to its permit. Both the staff and Akzo have circulated draft conditions reflecting this agreement. The Town and staff have agreed to accept the applicant's draft condition which does allow for limited extraction of "development salt" for specific purposes only. However, in its submission dated December 15, 1995, PACE opposes the revised multi-level mining permit condition "to the extent it authorizes development of a second level of mining." Our understanding is that this permit condition only provides for extraction of minerals on a second level to the extent necessary to develop the infrastructure for the mine. We direct that thestaff along with the applicant and Mr. Seeger discuss this condition and develop language that clearly expresses this intention.

    The Town and applicant have also agreed to language that addresses financial security as well as the use of alternative dispute resolution. Through these conditions, the applicant has agreed to maintain insurance at a minimum of $10 million to cover property damage related to the mine's activities. This sum is separate from the bond requirement in the permit that is for the purposes of funding reclamation pursuant to ECL 23-2717.

    Alternative dispute resolution would be used in the event Akzo did not agree it was responsible for damage and the aggrieved third party sought to pursue liability. The aggrieved party would have the option under this condition of asking Akzo to reconsider the claim, to file a claim in small claims court (if the amount was under $3,000), to submit the matter for mediation to the American Arbitration Association or to file a complaint in Supreme Court.

    Staff has no objection to this agreement but opposes its inclusion in the permit because staff views this as a private agreement that does not involve the Department. We disagree with staff's narrow reading of the resolution. This agreement represents a mitigation measure intended to resolve the community concerns with respect to potential damage related to the mine. A number of the permit conditions require DEC to make a determination regarding the relationship between the mine's operations and disturbances to property, water supply and the like. See, e.g., draft permit special conditions nos. 11 and 16. If a property owner complained about impacts to water supply and the Department deemed the mine not responsible, the ADR mechanism might be triggered. Thus, we find it is appropriate to make the ADR agreement part of the permit, at least, as an appendix to it so it might be readily found when required.

    The Town states its agreement with the applicant's proposed condition regarding contingent water supply during the shaft sinking operation. During this process, Akzo will have to dewater the shallow aquifer(s) around the shaft locations. The condition provides that in the event any residential well within one mile of the shafts is affected during or within two months of the shaft sinking work, the company will provide delivered potable water.

    Akzo and the Town have also agreed to a shallow groundwater monitoring plan. The staff also concurs with this proposal. With respect to setback/subsidence conditions, the Town, applicant and staff report their agreement on a 465' buffer zone adjacent to Akzo's underground mineral rights boundary. In this buffer zone, the extraction ratio will not exceed 50% and a nominal mining height of 13' will be used with allowance for height variations to maintain a safe salt thickness in the mining roof consistent with mining practices outside the buffer zone.

    In this condition Akzo also agrees to monitor convergence rates in the buffer zone concurrently with monitoring of the normal production areas and to provide reports on these rates to DEC and the Town. This condition further requires that in the event that DEC finds convergence rates in the production areas, within 600' of the buffer zone anomalous, Akzo will maintain mining at the reduced extraction ratio in the buffer zone and re-evaluate the mining plan in the affected normal production areas with the Department. The applicant shall simultaneously implement a contingency monitoring plan pursuant to draft permit special condition no. 20. The reduced extraction ratio requirement in the buffer zone will apply for the first five years of production and will be continued beyond that time if monitoring data indicates a need to continue this reduced extraction.

    PACE disagrees with this proposed setback condition on the grounds that it is arbitrary and because PACE claims Akzo will not be able to keep the mine height to 13 feet. Notably, PACE has agreed to the proposed 50' setback set forth in the permitbut has requested that a "reduced extraction ratio setback" should be implemented for mining within a 30 degree angle of draw zone of structures. PACE cites to federal subsidence regulations pertaining to coal mines in support of this condition (30 CFR 701.5) and in support of its proposal that Akzo be required to correct any material damage resulting from subsidence caused to surface lands pursuant to 30 CFR 817.121. PACE represents that this regulation also covers replacement of water supplies and establishes a rebuttable presumption of causation by subsidence for damage occurring within the angle of draw. Angle of draw is the angle of the slope that is created by subsidence as the overburden settles into the mine void.

    PACE also cites to 30 CFR 817.41(j) which relates to protection of drinking, domestic and residential water supplies and suggests that it should be incorporated in the permit and expanded to address agricultural water supplies. PACE also cites to a subsidence control plan (30 CFR 784.20) and subsidence control/public notice provision (30 CFR 817.122) which it states should be implemented at the new mine. The applicant and staff have responded to PACE's proposals by stating that the federal regulations referenced are not applicable and because coal mining is done at a much higher extraction rate (100%), there is a need for more stringent requirements.

    The Town, Akzo and staff have also agreed to a permit condition requiring certain supplemental seismic investigation of the mine area with respect to two anomalies detected within the Town of Geneseo. If this data confirms the presence of any faults, the applicant will take appropriate action to control the fault zone when mining in its vicinity as directed by DEC.

    The League has indicated in correspondence to this office that it has not been able to obtain a satisfactory response from the Town or the applicant regarding its proposal that the permit contain a condition to address water supplies affected by the mine similar to the condition in Empire Bricks. In the Matter of Empire Bricks, Inc., Interim Decision of the Commissioner (August 1, 1990). In Empire Bricks, the Commissioner found acceptable as mitigation the applicant's willingness to provide adjacent landowners with potable water whenever the water quantity is insufficient until such time that the mine can demonstrate it is not responsible for the conditions acceptable mitigation. The applicant has stated in recent correspondence that it opposes the imposition of an Empire Bricks-type condition and states that the permit sufficiently protects water supplies as currently drafted. In response to comments from the Livingston County Health Department, in a letter dated December 6, 1995, Mr. Milliken, Akzo's Director of Geologic Resources, agreed on behalf of the applicant to expand its well inventory and monitoring program as a basis for evaluation of cause for future changes that may occur in wells over the mine.

    Based upon what appears to be a potential for resolution of these issues, we direct the parties to continue to discuss these proposals. However, in the event that a resolution is not reached prior to the commencement of the adjudicatory hearing, these proposed conditions should be addressed by the parties at the hearing.

  2. Groundwater characterization

    PACE has retained two experts -- Dr. Andrew Michalski and Dr. Richard Young Counsel for Akzo have argued strenuously that neither Dr. Young nor Dr. Michalski are suitably expert in the field of salt mining to reliably critique the analysis Akzo's experts have performed. It is clear to us that both these individuals have substantial expertise in hydrogeology and geology and to some degree mining as well. To the extent that the parties believe that the analyses and conclusions derived by any of these individuals are faulty, cross-examination is the appropriate method to demonstrate those weaknesses. If this Department were to adopt the applicant's standards as to the nature of a petitioner's proof, it would be virtually impossible for the public to participate in permit application hearings in any meaningful manner., who argue that the applicant has failed to perform adequate groundwater characterization that would identify the hydraulic connection to the Genesee Valley aquifer. PACE explains that subsidence causes fracturing of the bedrock resulting in the inflow of water to the mine and solutioning of the salt pillars and accelerated collapse. According to PACE, if the mine floods quickly, there is the possibility that the valley aquifer could be depleted and based upon continuing subsidence in the mine, cause the movement of brine into the aquifer. Counsel for PACE cited to 6 NYCRR 422.3(d)(2)(iii) as support for its position that the mine not disturb the hydrologic balance at the mine and adjacent areas.

    In response, Akzo attorney, Mr. Premo explained that the applicant's consultant Alpha Geoscience has determined, based upon core drilling, that the area near the new mine was not subject to the same fracturing in the bedrock as in the valley and thus, the mine will not have effects on significant groundwater resources.

    However, PACE's experts take exception with the applicant's analysis of the hydrogeology in the area and with the methods its consultants used to derive their conclusions. In further support of its position, PACE cited to the Szyprowski report which PACE claims rebuts the methods used by Akzo. PACE seek further investigation done by the applicant with the use of wells and piezometers.

    The Town had criticized the applicant for failure to present water table contour maps that would provide a superior basis to assess impacts to groundwater including those from the salt pile and brine pond. The Town sought those maps provided along with a survey of water quality monitoring around areas of concerns. The Town cited to 6 NYCRR 422.1(b), 420.2, 421.1 and 421.2 and SEQRA generally as authority supporting the Department's jurisdiction to impose requirements that would protect the health, safety, welfare and property of the community. The Town's expert, Dr. Goodman spoke to the need to obtain better data in order to assess how broad an area will be influenced by water declines resulting from water inflow into the mine. It would appear however, that the Town's concerns have been addressed through the shallow groundwater monitoring permit condition that has been agreed upon with the applicant.

    The staff responded to these concerns by stating that it believes the mine is designed in such a manner as to prevent problems as experienced at Retsof. While PACE cites to the Sterling mine and its collapse as an appropriate analog to Hampton Corners, the staff believe that there is no appropriate comparison because Sterling used smaller pillars. In addition, the staff argued that there would not be the kind of water inflow at Hampton Corners as was had at Retsof because of greater separation between the water bearing strata and the mine.

    The applicant responded that its suggested program of shallow groundwater monitoring wells should resolve the Town's concerns but that the applicant should not be held to a standard of scientific certainty on these matters.

    While we agree that the applicant is not bound to a standard of scientific certainty, there is a difference of opinion among the experts of the applicant and staff and those of PACE sufficient to find that there is an adjudicable issue as to whether the applicant's groundwater characterization is sufficient to ensure that the mine's design is adequate to protect groundwater resources.

  3. Subsidence & Adequate Setback Distance

    While there does not seem disagreement among the parties as to the fact that salt mines do cause subsidence as material is extracted, the concern surrounds the rate of the subsidence. That is, whether the mine's design will result in a gradual subsidence or closure that is less likely to cause major damage to wells or structures or whether the subsidence will occur more rapidly resulting in damage.

    In response to the Town's concerns regarding the appropriate value for horizontal strain caused by subsidence that will protect structures, the applicant's consultant, Dr. Michael Hardy from Agapito and Associates, stated that the horizontal strain over the Retsof large pillar mining areas has not caused significant problems, i.e., subsidence is more controlled and less rapid.

    The staff explained that setback distances for this permit were calculated solely to ensure that the mining did not trespass on lands that Akzo did not have mineral rights. The applicant referred to the mining regulations [ 422.2(c)(iii)] as the basis for the 50' setback requirement in the permit -- 25 feet plus one and a quarter times the height of the mine (here 18 feet is the maximum) that equals 47 feet and this figure was rounded to 50 feet.

    The Town responded that setback distances should be calculated on the basis of tension zones around the mine perimeter based upon the angle of draw.

    The applicant points to draft permit special conditions nos. 6, 11 and 13 that require Akzo to address damage to property and water supplies if it is determined that the mine is responsible. And, in any event, under common law, Akzo would also be liable for such damage.

    On the second day of the issues conference, the staff produced Kathy Sanford from DEC's central office to speak to the comparisons made by the petitioners to Retsof, Sterling and Tully Valley. In short, she stated that the shaft construction at the Sterling mine allowed for the greater water inflow than would be expected at Hampton Corners. As for Tully Valley, Ms. Sanford discounted any comparison to this area because it was a solution mining process where water was intentionally introduced to produce brine.

    PACE expert, Dr. Young, drew comparison to Akzo's mine in Cleveland, Ohio which is also at the B-6 level and employs the larger pillar design yet is experiencing problems with punching and other phenomena. Dr. Michalski explained that the shaft design was not an issue for PACE but that Sterling was an appropriate analog. He stated that it was not clear that the Sterling pillars collapsed causing closure and he contends that the increased water flow rate was caused not by poor shaft design but by enhanced permeability caused by subsidence.

    On behalf of the applicant, Mr. Milliken disputes this contention claiming that the shafts at Sterling were dug decades earlier, were unlined and consequently, resulted in the large amounts of inflow to the mine.

    Dr. Leo Van Sambeek spoke on behalf of the applicant regarding the nature of the collapse at Retsof as well as the general causes of subsidence. He agreed with the PACE experts that the amount of extraction of mineral was important to the degree and rate of subsidence but he also stated that the size of pillars including their height was key. Applicant's attorney Payment stressed that large pillar design is to be used at Hampton Corners and the permit does not allow for change in method of mining without a review and approval from the Department. PACE responds that the experience of the Akzo mine in Cleveland would militate towards the use of small pillar design and thus, this should be addressed now. PACE argues that the salt extraction level is excessive and will be responsible for unacceptable subsidence, i.e., increased rate and degree of subsidence is proportional to the mining rate.

    Subsequent to the issues conference, the applicant, PACE and staff submitted additional argument on these matters. In addition, Akzo submitted a supplement to Appendix D of the mined land use plan (MLUP) that depicts a mine height of 13 feet and projected subsidence assuming an angle of draw at 30 as well as 45. In response to the applicant's Appendix D supplement, Dr. Michalski concludes that the applicant underestimates the subsidence rates based upon incorrect calculations.

    As noted above, the Town and the applicant have reached an agreement on a buffer area where the extraction rate would be 50% for the first five years of production.

    However, there remains substantial disagreement between the experts representing the applicant and PACE as to the essential concerns of whether the mine design of the applicant is sufficient to overcome what the PACE experts discern as an excessive extraction rate that will result in rapid subsidence. This is a critical issue because it is imperative that in light of the experience at Retsof, this agency must be assured that it has sufficient information to determine that the mine operation will not result in environmental damage.

    As the current mining regulations require setbacks for surface mines from adjoining properties to prevent erosion and consequential property damage, so too should the Department require that this underground mine has adequate setbacks to protect adjoining property. The issues conference is not the place to determine such factual disputes. Thus, we find 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 potential for a collapse.

Archeology

RAGE, in particular, Haudenosaunee, the Six Nations Confederacy, alleges in its petition that the project, as currently defined, threatens the cultural and archeological sites that have been identified within the proposed mine site and within one mile of the mine site. In support of its argument, petitioner claims that the "affected area" to be considered is the land over the 9,000 acre underground mine. As explained, infra, at pp. 25-26, while we do not find an adjudicable issue as to SEQRA segmentation in general, in this process we must be certain that effects of the entire mine with respect to archeological resources have been thoroughly analyzed and addressed. RAGE contends that only a portion of the affected lands have been researched and the archeological review has been hurried and therefore will not adequately provide for protection of these cultural resources, particularly any Native American burial grounds that exist. The remedy is to determine what further events are required in time to ensure adequate protection for, as yet, unknown archeological resources.

Pursuant to the New York State Parks, Recreation and Historic Preservation Law 14.09, a state agency shall provide early notice to the Office of Parks, Recreation and Historic Preservation (OPRHP) of any project that requires its approval which may impact a historic, archeological or cultural propertythat is listed on the national or state register of historic places or is eligible for such listing. State agencies are required to mitigate impacts to such sites and to provide the DEIS that addresses such issues to OPRHP for its review and recommendations. In addition, OPRHP has the authority to designate any Indian cemetery or burial ground as a place of historic interest and no person shall impair any site so designated without written permission from OPRHP. Indian Law 12-a.

As part of the DEIS, the applicant through its consultant, the Rochester Museum & Science Center (RMSC), conducted Phase I and II investigations of the mine site. In this process, the applicant identified 53 known archeological sites within one mile of the mine site and 28 additional known archeological sites within the mine site. These sites contain both Native American and Euro-American settlements and artifacts. In particular, the applicant states that it has identified and set aside the most sensitive portions of Williamsburg, the first Euro-American settlement in the Genesee Valley which has been found eligible for listing on the State and National registers.

The results of this investigation were transmitted to Dr. Robert Kuhn of OPRHP along with a proposed scope of work for further investigations and mitigation. By letter dated November 8, 1995, which was circulated among the participants at the issues conference, Dr. Kuhn advised DEC Region 8 DRS Administrator John Cole that OPRHP approved the scope of work with the understanding that based upon this research further investigation might be necessary.

Apparently, up until the issues conference, the RAGE petitioners were excluded from review of the applicant's work on the cultural resources. At the issues conference however, the applicant agreed to share its documents with RAGE representatives including the maps with the permission of OPRHP and that a subsequent meeting between Akzo and a RAGE representative would be held to discuss areas of concern.

Based upon minutes dated November 28, 1995 that were sent to this office, we understand that on November 16, 1995, a meeting was held among representatives of the applicant, OPRHP and Mr. Peter Jemison, the representative of the Haudenosaunee. At this meeting, the RMSC addressed the scope of its investigations and reviewed the maps that specified the locations of the cultural resources. Brian Nagel, the RMSC representative, noted that no Indian burials were found in the areas investigated.

Mr. Jemision stated that he wanted the project to avoid disturbance of sites, to treat remains of Native Americans with respect, if encountered, and to provide for on-site Seneca Nation monitors, paid by Akzo, to ensure that human remains are treated properly. Mr. Jemison also stated his concerns for cultural resources that are not addressed for the entire 9,000 acre mine area. Mr. Jemison also addressed concerns regarding three areas that he believes may be burial sites. At the end of the meeting, Mr. Jemison agreed to provide a copy of the Empire Gas/Seneca Nation agreement in which the gas company agreed to pay for two Native American observers. RMSC agreed to prepare a scope-of-work and budget estimate to present to Akzo for the three sites identified by Mr. Jemison.

By letter dated December 13, 1995 from Akzo counsel Neil Madden to RAGE attorney Valerie Knights, Akzo provides that although it has not seen a copy of the Empire Pipeline - Seneca Nation agreement, the applicant is not inclined to fund Native American monitors but instead proposes to use one of its experts for this purpose. In addition, RMSC examined the available methods of evaluating the three sites identified by Mr. Jemison. Akzo has concluded that based upon the lack of existing data suggesting the presence of human remains in these areas, the expense of auger testing and the fact that two of the areas will be disturbed during project construction, the appropriate step is to have an archeologist supervising on site when the areas under question are stripped as part of construction activity. The applicant has proposed that the third site will not be disturbed by mine construction and will insert a condition in any mine site construction agreement that requires temporary fencing around this area. Akzo agrees that the "Working Policy for Discovery of Human Remains" is part of the draft mining permit conditions and that Native American representatives would be allowed on site for the recovery of any Native American remains that are encountered during investigation/mitigation or construction.

At the issues conference, RAGE presented one of its experts on this subject, Dr. Ellen Kintz, who is the chair of the Anthropology Department at SUNY Geneseo. Dr. Kintz stated that the cultural survey was inadequate because it did not address the entire 9000 acre site. Dr. Kintz further stated that based upon the historical significance of the area and the potential effects of subterranean mining on archeological resources, the area beyond the plant zone should be examined.

While DEC should defer to the findings of OPRHP on the issue of cultural resources based upon its expertise, OPRHP has made no conclusions regarding the impacts of the mine beyond the mine site. In fact, according to the minutes, at the November 16 meeting, Dr. Kuhn stated that OPRHP had no authority to require this additional investigation. Thus, we find 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.

This adjudication might be avoided through the joint production of an archeological scope of work plan explaining how Akzo plans to proceed. For example, similar to the mine site cultural resources assesment, the applicant might consider a plan that incorporates phasing and monitoring the mine area so that preceding the entry of mining, the specific area is evaluated for possible archeological significance. In a letter dated December 12, 1995, the staff has clarified in proposed special condition no. 24 that construction activity will not commence in an area under archeological investigation until after the field work related to that area is completed to the satisfaction of SHPO. In summary, we encourage the participants to forge an agreement that would eliminate this issue from the adjudicatory hearing.

The Railroad, Railroad Spur, Agricultural Impacts

Although we address the proposed issues related to the railroad that are raised by RAGE, we do not find that there is an adjudicable issue with respect to the potential environmental effects of the existing railroad. However, we do find that there is an adjudicable issue pursuant to SEQRA with respect to whether the construction of the railroad spur is the most favorable alternative in light of impacts to agricultural lands.

At the issues conference, RAGE discussed its concerns regarding environmental impacts from the railroad's operation which seemed to stem, in part from a lack of understanding of the proposed rail work. Ms. Knights began by questioning the extent of the existing railroad track reconditioning, use of pesticides and grease and oil on the tracks. In response, the staff stated that the reconditioning work would be considered a Type II project under SEQRA as it is merely an upgrade or repair to an existing line. David Collins, Vice President of the G & W Railroad stated that the plans for rehabilitation of part of the existing line were minor bridge repair to the bridge over the Canaseraga, replacement of defective ties and replacement of some rail with newer rails. He said that there was no plan to do anything other than replace the rails with in-kind materials and there was no plan to move dirt.

As to concerns regarding the spraying of oil on the train slides or gates, Mr. Collins stated that there is use of grease on these mechanisms to ensure that they do not corrode. Staff responded that there was an oil and grease limit in the SPDES permit.

RAGE also raised general concerns about odor, light pollution, corrosion problems, vibration, safety, and damage to vegetation resulting from increased rail traffic. However, when pressed for more specificity with respect to these complaints, the RAGE representative, Mr. MacGregor, made general characterizations regarding blowing salt from trains, odors from diesel engines and noise. The applicant responded by stating that it was not Akzo's intention to perform a full review of impacts associated with the activities already undertaken by a railroad that is licensed and operating. In addition, Mr. Milliken argued that the amount of salt that does blow from the uncovered rail cars is de minimis especially in comparison to the amount of salt intentionally spread by municipalities and DOT in the winter. The staff also stated that Mr. MacGregor did not have expertise in any of these areas and the final environmental impact statement would address these comments which were not tantamount to adjudicable hearing issues. The DEIS addresses the operation of the rail transport and indicates that major train movement is scheduled to avoidschool bus travel, most cars will be covered and maintenance and emergency response procedures are provided.

We must agree with the applicant and the staff that RAGE has failed to raise any adjudicable issues with respect to the general operation of the railroad. At one point, Ms. Knights expressed the view that other alternatives to rail were not adequately considered. Certainly, RAGE could not be suggesting that it would be more environmentally beneficial for more salt to be transported by truck in light of concerns regarding increased road traffic and air pollution. It would appear that the use of an existing railroad to transport the material would be more appropriate, particularly for shipping salt to locations outside Livingston County. The concerns raised were not sufficiently supported so as to indicate that there was any environmental standard that would be violated by its use nor any significant environmental impact that had not been addressed in the DEIS.

In order to provide transport of salt from the proposed mine, the applicant and G & W Railroad propose to build a spur that would connect the new mine to the existing Groveland Branch of the G & W railroad. The applicant represents that its choice of location for the rail spur avoids existing homes and businesses along Route 408, environmentally sensitive areas and conflict with highways. However, the spur would overlay soil types that are listed as Livingston County Prime Farmland and have the highest productivity indices for the county. The State would fund the $10.7 million needed for construction of the spur. In addition to crossing Canaseraga Creek by way of a proposed bridge, this alignment would remove 17 acres of farmland fromagricultural use through the purchase of a 100-foot wide easement. The DEIS also states that farmland immediately north of the proposed alignment would also be affected due to limitations on access and use of farm machinery. Another major impact of the spur would be the construction of an embankment across the floodplain approximately 45 feet wide at the base and varying in height between four and 13 feet.

In New York, agricultural land is protected under the Agriculture and Markets Law in a manner that can be analogized to SEQRA requirements. Agricultural and Markets Law (AML) 305(4) limits the exercise of eminent domain and use of public funds to acquire actively operated farmland for non-farm purposes. This law requires any agency with such intent to file a preliminary notice of intent (NOI) and a final NOI with the Commissioner of Agriculture and Markets (A & M) which sets forth a description of the project and its agricultural setting, its adverse impacts, alternatives, mitigation measures and other information the Commissioner may require. The law requires consultation with (A & M), DEC, the Secretary of State and the Advisory Council on Agriculture and for a public hearing if the agency determines that there will be an unreasonable adverse effect on the state's goals with respect to agricultural and environmental resources. If A & M concludes that a reasonable alternative exists which would minimize the adverse impact, the commissioner shall propose that alternative to the agency proposing the action. If the agency rejects the proposal, it must provide a rationale.

In addition, SEQRA requires the lead agency to perform a close examination of negative environmental impacts to agricultural resources as set forth in 6 NYCRR 617.12(b)(10) (including any non-agricultural use occurring wholly or partially within an agricultural district in the Type I list). See also, 617.2(1) (inclusion of agricultural resources in SEQRA's definition of environment). In Peck v. Town of Geneseo, Index No. 6096181 (Sup. Ct. Livingston Co. 1982), the court found that the loss of farm land is a substantial matter affecting the environment. And while the MLRL encourages mining, it also encourages other productive uses such as farming. ECL 23-2703(1). Thus, it is essential for the Department in its review of this application to ensure that there is a proper balancing of the needs of the agricultural and mining resources. See, In the Matter of Preble Aggregate Co., Commissioner's Interim Decision (September 7, 1995).

Table No. 27 of the DEIS indicates that three farms would be crossed by the proposed rail spur. Petitioner Myron Brady's parcels are located on the eastern and western ends of the spur, adjacent to Canaseraga Creek on the east and the Village of Mt. Morris on the west. The DeGraff farm is located adjacent to Brady's on the west end of the alignment and the Shaker Farm Corp. owns the land in the middle along the majority of the alignment. Mr. Brady farms the land owned by the Shaker Farm Corp. According to Mr. Brady, sweet corn, peas and green beans are grown on the fields to the north and south of the alignment and field corn is also part of his crop rotation.

The Genesee & Wyoming Railroad submitted a final NOI dated May 30, 1995 to A & M pursuant to 305(4) of the Agriculture & Markets Law. This document discusses the review and consultation between and NYS DOT, Livingston Co. IDA, Livingston Co. Farmland Protection Board, DEC, USACOE, A & M and Livingston Co. Board of Supervisors along with affected property owners regarding the proposed spur. The NOI relates a number of mitigation measures that will be implemented if the spur is approved such as lowering the embankment to reduce pressures and minimize groundwater concerns, provision of extra culverts to reduce the possibility of the embankment acting as a dam during floods, and making fields more accessible to farm equipment through lower crossings and wider service roads along the embankment. The document stresses Akzo's need for the railroad service, the competition of foreign salt imported by barge and the limitations on government funding of the spur without which the rail would have to charge higher shipping rates to Akzo potentially undermining the viability of the mine. A letter dated August 3, 1995 to A & M Commissioner McGuire from Dolby and Associates, Inc., G & W's consultant on the spur, further details some of these mitigation measures.

Commissioner McGuire's determination of August 3, 1995 states that the proposed action would not have an unreasonable adverse effect on the continuing viability of farm enterprises within the district. Commissioner McGuire's determination states that it was made in light of the proposed mitigation measures; the high/non-competitive cost of non-rail alternatives; the safety and environmental concerns associated with routing alternatives and the express preference of landowners. However, Commissioner McGuire's determination does not explain these factors in sufficient detail such that this Department can rely upon it as a basis for this Department's decision which must be made under SEQRA.

At the issues conference, Ms. Knights reiterated the concerns of RAGE and Mr. Brady regarding the spur including the possibility of flooding farm fields due to the embankment. On behalf of the applicant, Mr. A. Jay Dolby of Dolby & Associates described the culverts that will be constructed to avoid this impact. He also expressed the view that there would be only 2-3 inches of water in the center of the field during a flood. Right now, Route 408 also crosses the valley, however the water goes under the road, under the existing bridge over the Canaseraga Creek. The railroad will install a large bridge with wider openings over the Creek that will also mitigate this potential impact. Petitioner Brady responded that given the amounts of water generated during floods, the drainage provided by the railroad was insufficient.

In the DEIS, there is a discussion of the alternative rail spur alignments that were considered by the applicants. In Table No. 37, the alternative chosen, No. 2, is noted as having minor impacts on homes and businesses, views, highways, and wetlands and despite the loss of some prime farmland, having a neutral impact on farming operations. Alternative No. 3 had the same evaluation but, Nos. 5, 7 and 8 were noted to have substantial impacts to views (5, 7, 8), traffic flow and wetlands (7, 8). It would appear from Table No. 38 that all these spur alternatives would require the removal of 16 or more acres of farmland from production and the crossing of flood plains. Other factors such as track length, costs and embankment height are also addressed in this summary.

The DEIS also addresses non-rail alternatives such as the pneumatic capsule pipeline (PCP) system that is advocated by petitioner Brady. The applicant concludes in the DEIS that this system would also entail impacts to wetlands, floodplains, agricultural lands, archeological resources and would be much more costly. The DEIS also indicates that this system has not been used in this country. At the issues conference, Mr. William Vandersteel of Tubexpress Systems, Inc. spoke regarding the PCP system. He stated that the system is a means for moving granular materials in solid form in capsules that roll through a pipeline at very light ambient air pressures. He indicated that the system is well-proven and is operating in Russia, Georgia Republic and Japan for transport of coal.

In response to the applicant's concerns regarding environmental impacts, Mr. Vandersteel stated that Tubexpress is partially owned by Williams Bros. Cos. of Oklahoma which has 25,000 miles of buried pipeline throughout the United States. He explained that this pipeline is used for carrying oil or gas under high pressures and it has been found to be the least environmentally intrusive means of conveying these materials. While these are oil and gas pipelines, Mr. Vandersteel explained that this was the same technology for the PCP system. He stated that there was no maintenance on the system unless there was an external cause in which case a well driller would be used to dig a hole. In a submission dated November 11, 1995 on behalf of Mr. Brady, Mr. Vandersteel provided more information regarding the PCP system. In this submission, Tubexpress takes issue with the applicant's claims that the system would take a longer time to build or that crossing rivers or roads would be difficult or more costly than building bridges or tunnels. The company also disputes Akzo's cost determinations and posits that in terms of any subsidence, the capsule, being a flexible system, would hold up better than a rail which is more rigid.

Livingston County IDA submitted to this office an evaluation of the PCP system prepared by Clark Patterson Associates on behalf of the IDA. In this document, the consultant concludes that the system is not a feasible alternative because DOT will not fund it, the cost would be much higher than for the rail spur and the system does not have an operating track record in the United States.

SEQRA requires that an applicant provide an examination of reasonable alternatives to a proposed project. ECL 8-0109(4), 8-0109(2)(d), 8-0109(2) and this process has been characterized as key to the environmental review to allow the public and government bodies the opportunity to assess relative costs and benefits of a proposal. See, Coalition for Responsible Planning v. Koch, 148 AD2d 230 (1st Dep't 1989), appeal denied, 75 NY2d 704 (1990). Here, while it is clear that the EIS does discuss alternatives, it is not as clear that the PCP system was evaluated on a proper factual basis. Although RAGE was not able to provide support for its general claims regarding the spur's impacts (subsidence, salt, flooding), there is no dispute that the construction of the spur will result in the destruction of prime agricultural land.

In a comment received by Myron Brady dated November 5, 1995, he states that the PCP system would save the applicants and the State funds because the Tubexpress would construct, operate and maintain this system without a capital outlay by Akzo and the company would pay a fee on the amount of salt moved -- 50 cents a ton or less. In any event, it should be noted as well that In the Matter of the Town of Oyster Bay, Commissioner's Decision (July 31, 1985) the DEC commissioner held that the alternative's relative cost was not the test of economic feasibility. Instead, to rule out, the cost of a particular alternative must be so high as to undermine the feasibility of the project.

While the applicant is correct that every alternative does not have to be reviewed exhaustively, the lead agency must ensure that where feasible, the alternative that impacts the least heavily on the environment is chosen. Thus, we find it appropriate to adjudicate the feasibility of the PCP system alternative to ensure that it is fully explored in light of what appears could be a much lesser environmental impact. Accordingly, we find an issue with respect to whether the PCP system is a viable alternative to the rail spur.

In the following pages, we address those proposed issues that do not require adjudication -- segmentation, SPDES/stormwater discharges, community resources, aesthetics, air pollution, traffic, and noise.

Segmentation

In its petition, RAGE argues generally that, contrary to SEQRA, the applicant has improperly segmented the project because the proposal fails to address the fifty year life of mine. This issue is based upon the regulatory requirement in 6 NYCRR 617.3(k) that actions consisting of a set of activities or steps should be considered together under SEQRA unless the lead agency determines a reason to segment the review process that provided equivalent environmental protection.

In its application and DEIS, Akzo has described the affected area to be that surface area of approximately 55 acres which will be subject to development for mining structures. In its DEIS, in addition to its analysis of the environmental effects related to its mine site, Akzo has also included a review of those impacts related to the railroad spur, the electric transmission line and the sewer utilities.

The mined land reclamation regulations require the applicant to provide mining and reclamation plans that relate to the affected land. 6 NYCRR 422.1. Affected land is defined in these regulations as: ". . . the sum of that surface area of land or land under water which: (i) has been disturbed by mining since April first, nineteen hundred seventy-five and not been reclaimed, and (ii) is to be disturbed by mining during the term of the permit to mine." It would appear from this requirement that Akzo has complied with the mining regulation by submitting plans that relate to the affected lands.

The mine is anticipated to grow eventually to 9,000 underground acres and SEQRA requires that all tangible activities that Akzo's mine will entail must be subject to environmental review at this time. Thus, to the extent that the applicant can identify effects resulting from the 9,000 acres underground, it must do so in the DEIS. (See, archeological discussion, supra at pp. 17-20). However, other than to make general criticisms about the failure to do a comprehensive review, RAGE has not identified specific weaknesses of Akzo's environmental review that indicate the applicant has segmented its environmental review. In response, Akzo stated that to the extent that it can predict environmental effects with respect to the fifty year life of mine, it has done so. Counsel for the applicant stated that the DEIS only looks at impacts from the mine site and adjacent area because there are no impacts related to the underground mine. Staff concurred by stating that the affected area and final reclamation has been addressed. RAGE's general and unsubstantiated claims regarding segmentation cannot serve as the basis for finding an adjudicable issue. See, In the Matter of Steven J. Kula, Commissioner's Interim Decision (August 11, 1995).

J. Michael Jones, counsel to petitioner Brady in the eminent domain proceedings spoke at the issues conference with regard to this subject. He argued that the environmental effects of the railroad spur should have been considered earlier in the condemnation process. However, that is not an issue before this forum. As Ms. Knights admitted at the conference, the railroad spur and its alternatives is a subject of the DEIS. The issue of the railroad spur is discussed, supra at pp. 20-25, as to the need to adjudicate the adequacy of the DEIS's analysis of alternatives and impacts on agricultural lands.

As RAGE has not identified specific impacts that have not been addressed in the DEIS, we do not find a separate issue of segmentation. However, to the extent that the 9,000 acre underground mine relates to RAGE's concerns regarding archeological resources and the concerns of RAGE, the Town, PACE and the League regarding the mine's impacts on stability to structures and water supplies, those matters are addressed elsewhere in this ruling.

SPDES/Stormwater Discharges

The Town, PACE and RAGE raised concerns regarding run-off from the proposed outdoor uncovered salt pile as well as other industrial sources on the mine site. Akzo proposes to discharge all water from these sources to the brine pond and then to the Genesee River pursuant to the conditions found in DEC staff's draft SPDES permit. These concerns have been answered in the DEIS, the MLUP and the proposed SPDES permit and do not require an adjudicatory hearing.

In its petition, PACE states that the applicant intends to use two SPDES permits, a general permit for stormwater discharges and an individual SPDES permit for the salt storage plan. PACE argues that because the stormwater would have contact with industrial sources, it is not allowed under the provisions for general permits. In addition, based upon statements made in the DEIS, PACE argued that discharges from the building drains would flow to the Genesee River resulting in an unlawful discharge under a general SPDES permit. However, at the issues conference, the staff clarified that a general SPDES permit would never be issued for this project because there was an individual SPDES permit that the Department proposes to issue. The applicant confirmed that all industrial discharges, including any from the salt pile, would be covered by the individual SPDES permit however, PACE did identify an error in the DEIS regarding the building drains. These drains will not be covered by the SPDES permit because this discharge will go to an oil/water separator and then into the sanitary sewer system. This matter was further clarified in a letter from Mr. Madden to ALJ Casutto dated November 15, 1995.

In its reply brief dated November 20, 1995, PACE cites to 40 CFR 122.26(a)(2), which exempts from water pollution discharge permit requirements stormwater in mining operations that does not have contact with industrial sources. PACE continues to question whether the applicant has designed its drainage system to collect all stormwater contaminated by contact with industrial sources. PACE specifically points to the tarp removal area, bulk truck lanes, truck que [sic], production head frame structure and shaft process and packaging facility, covered storage facility, truck bulk loadout area and rail bulk loadout facility on the mined land use plan, as industrial sources likely to have contact with runoff which Akzo has failed to completely direct into the brine pond.

In its brief dated November 27, Akzo explains that once removed from the production shaft, salt will be transported to these various on-site facilities through an enclosed overhead conveyor system. Akzo further states that salt product is delivered to its bulk rail and truck loading facilities by the same enclosed conveyor system so that precipitation will not come into contact with the salt. In addition, Akzo states that any potential discharges from these loading facilities are regulated under the individual SPDES permit. Because the bulk truck lanes and truck queue area are parking areas for empty trucks entering the facility, any salt brought onto the mine site by these trucks should be de minimis. Finally, vehicle maintenance will occur inside buildings and any discharge will be to floor drains that will go to the sanitary sewers.

PACE also made arguments regarding Akzo's compliance at the Retsof facility with the applicable SPDES permit. The staff made a presentation summarizing the discharge data from Retsof from January 1987 - September 1995. In this summary, it appeared that there were problems with meeting limits in the summer of 1991 which staff attributed to the very dry season. In addition, staff represented that the chloride limit has not been exceeded since June 1993. Counsel for PACE disputed these conclusions on the basis that water quality standards were violated even if SPDES limits were not. However, the Department staff disagreed that the data represented violations.

The staff further represented that the levels of salt discharge into the Genesee River have decreased and will continue to decrease because the outdoor salt pile at Retsof will be exhausted over the next few years. Another contributing factor to higher salt discharge in the past was the flow from the collapsed Sterling Mine pumping. Since this shaft was closed in 1994, this saline source is terminated. Further while the Hampton Corners facility will represent an additional saline source for a period of time, staff stated that the SPDES limits in the permit for the various parameters are maintained at the same level as originally provided for Retsof alone. Moreover, DEC is requiring that the applicant conduct chronic toxicity testing to assess the affects of the discharge on the stream and species in the water body.

At the issues conference, in response to PACE's concerns regarding the possible dilution of results obtained from the monitoring point 10 miles downstream from Hampton Corners, the staff explained the location of the current monitoring point was chosen for safety concerns. Akzo also notes that this point allows for an evaluation of the total discharge of both mines and an additional point will be located one mile from the facility. However, because the additional point appears upstream on the map annexed to the SPDES permit, it will serve as a monitoring point for background levels only. At the issues conference, PACE agreed that a SPDES permit revision including this information would satisfy its concerns regarding the monitoring point. Staff distributed the revised draft SPDES permit on November 13, 1995.

PACE also raised concerns regarding the capacity of the brine pond. Akzo's expert responded that its pumps and detention pond were designed to accommodate discharges associated with a 100 year-24 hour storm event. The brine pond volume is 30,000 cubic feet and the pond will be constructed with a liner system of a minimum of 3 feet of clay, underlain by a 40 mil high density polyethylene membrane. The brine water will be pumped out of the pond initially through a 12-inch forcemain to a 48-inch diameter culvert crossing under I-390. The outfall which would be subject to the SPDES discharge limits, would discharge to the Genesee River.

RAGE and PACE questioned whether various chemical components would be sufficiently monitored by SPDES permit requirements including "YPS", an anti-caking agent applied to the salt. Apparently, this chemical, when exposed to sunlight releases cyanide which is toxic to fish. The applicant answered that the permit limit for the free cyanide was three orders of magnitude below what RAGE had cited. In addition, Akzo stated that it had been discharging this substance for 20 years without toxic effects and in any event, the permit would require whole effluent toxicity testing (WET) to ensure that there would be no damaging effects to the river's biological community. The Town agreed that its concerns regarding chronic toxicity testing were addressed as long as the permit reflected this requirement.

RAGE raised concerns regarding the on-site washing of rail cars that had carried unidentified chemicals. Railroad representative Ken Cox indicated that dedicated cars were used for the salt. Akzo represents that run-off from washing these cars is collected and routed to a concrete sump and pumped into the brine detention pond.

PACE argues that Akzo has failed to properly design its stormwater runoff system by providing inadequate conveyances for its diversion. The applicant counters that its engineers drafted the design pursuant to DEC's technical guidance Stormwater Management Guidelines for New Development as well as New York State DOT requirements. The applicant's consultants maintain that the site development may cause a change in the temporal distribution of flow reaching a specific culvert but would not substantially change the quantity of the combined flow reaching the culverts at any one time.

With respect to PACE's dispute as to Akzo's choice of drainage systems, again the applicant relied upon its three consulting engineering firms to determine that the enclosed culvert technique was the optimal system because it will direct flows to conform with DOT design capacities, allow for practical development of the site and protect non-salt containing surface flows from flows containing salt. Apparently, PACE's claim that Akzo's plan called for filling in a Class C stream on the mine site is incorrect. The applicant plans to divert this stream by piping it across the property.

While PACE and RAGE maintain their dispute with the environmental analysis of the applicant's surface water impacts and mitigation measures, there is no issue for adjudication. The applicant and staff have answered the raised concerns with the statements of their experts and the petitioners have only responded generally without any technical support to provide a factual basis for those concerns. To the extent that Akzo is unable to meet its SPDES permit, it will have to seek a modification of the permit or be subject to potential enforcement action.

Community Resources

In a very general statement in its petition, RAGE raised economic impacts as a matter that the applicant had not sufficiently explored. While economic factors alone are not a consideration under SEQRA, the law does require that the lead agency balance economic and environmental concerns. See, Town of Henrietta v. DEC, 76 AD2d 215 (4th Dep't 1980). In the DEIS, Appendix K, Akzo analyzes the economic impacts of the project. However, while RAGE alludes to potential economic losses from any catastrophes related to the mine, it provides no factual support for this concern.

Similarly, RAGE presented arguments that members of the community will be negatively affected by the new mine based upon the residual psychological effects of the Retsof collapse. To support this issue, RAGE presented Dr. Frank Sylke, an environmental sociologist who presented the need to ensure that social service agencies do not become overburdened as a result of mining disasters. While no one could dispute that any manmade or natural disaster makes great demands on community services, SEQRA does not require that the potential psychological effects of possible catastrophes associated with a proposed project be considered and mitigated. The purpose of the SEQRA process is to provide a basis to examine potential negative impacts to the environment, to balance these impacts with the need for the project and to mitigate them to the extent feasible. Thus, while no agency can ensure that any project is risk-free, the purpose of this review is to minimize any potential risks within acceptable zones. See, In the Matter of the Application of CECOS, Int'l, Inc., Commissioner's Decision, (March 13, 1990). If the risk is unacceptable then the project cannot proceed. Id. However, psychological impacts by themselves cannot be a basis for denial and thus, there is no adjudicable issue here. Id.

Counsel for PACE cited to Chinese Staff & Workers A'ssn v. City of New York, 68 NY2d 359 (1986) in support of RAGE's argument that community character issues are subject to scrutiny under SEQRA. However, legal principles enunciated by the Court of Appeals in Chinese Staff have nothing to do with psychological issues but instead relate to whether there was sufficient environmental review as to the potential for loss of zoned cultural characteristics of Chinatown resulting from a large development project. Therefore, PACE's reliance on Chinese Staff is misplaced.

Aesthetics

The DEIS presents the changed viewshed from several vantage points that will result from the development of the mine site and construction of the shaft and related structures. In its petition, RAGE makes a brief, general statement regarding the negative aesthetic effect the mine structures will have on the community, particularly when viewed from Letchworth State Park. While RAGE does not perform a specific analysis of the viewsheds, this office did receive comments from the New York State Department of Transportation. In a letter dated November 15, 1995, Regional Director Lewis M. Gurley criticizes the visual analysis for an inaccurate portrayal of the impact of the facility on the views from Routes I-390 and 63. In his letter, Regional Director Gurley stated that the facility will be much more dominant than shown in the simulations and the siting does not provide a sufficient buffer to mitigate these effects. Upon receipt of these comments, ALJ Goldberger directed that the applicant respond to them. Akzo and staff representatives have met with DOT personnel and report that they have met the agency's concerns. By letter dated December 14, 1995, Mr. Madden provided correspondence reflecting this outcome.

The DEIS also includes an analysis of the mine's visual effects on local historic resources. The visual impact study was submitted to the State Historic Preservation Office (SHPO). By letter dated July 6, 1995, SHPO assessed the study as comprehensive and the mitigation measures proposed (such as use of muted tones for building colors and nighttime lighting that limits light trespass on surrounding properties) as adequate to determine that the project does not represent a significant concern. Director of Field Services Bureau Ruth Pierpont voiced concerns in this letter regarding the mine site's visual effect on the Williamsburg Cemetery. However, she concludes that this historic site did not derive its significance from the particular location which had previously been disrupted by the building of other structures. Thus, SHPO did not have concerns regarding the visual effects of the project on the cemetery.

Accordingly, we do not find any adjudicable issue raised by any petitioner with respect to this proposed issue.

Air Pollution

PACE asserted that the applicant has failed to apply for necessary air permits pursuant to Part 200, et seq., of 6 NYCRR. PACE argues that somehow there must be a way that particulates from the below ground screening and crushing operation are emitted from the mine, representing an air pollution source. In addition, PACE states that the aboveground salt pile may also be a source of air pollution that must be permitted, citing to a March 14, 1990 memorandum from DEC Division of Regulatory Services staffperson George Danskin to Regional Permit Administrators regarding dust caused by mining operations.

Staff responded that there was nothing in Akzo's processes leading to the implementation of Part 201. The applicant maintains that there would not be sufficient venting to the surface to require a permit; that the ventilation systems were for room air which would circulate at low velocity with no process exhaust. Akzo attorney Premo stated that no part of the design would require collection and discharge. Mr. Premo further explained that salt dust is not hazardous and will be cleaned from areas underground; it will not be discharged to ambient air. While PACE questioned this procedure, it did not present any facts that would contradict the position of staff and the applicant. Lastly, PACE referenced the Commissioner's Decision in the Gernatt mining permit case. In the Matter of Gernatt Asphalt Products, Inc., Commissioner's Decision, May 25, 1995. However, that mining facility was a surface mine, not an underground mine.

As to the surface stockpiling of the salt, staff represented that it does not believe this potential air contamination source was regulated by Part 201 and there was no record of impacts from the existing pile at Retsof. With respect to the Danskin memo, while it does reference mineral stockpiles, it recommends that these be regulated through conditions in the MLR permit. As staff pointed out at the issues conference, special condition no. 9 of the draft permit does require that Akzo control off-site migration of dust resulting from surface operations by use of dust suppression methods. However, we note that this condition does not specifically reference the salt pile and we direct the staff to revise the condition to that extent.

In the DEIS, the applicant describes the air monitoring performed at the Retsof facility in order to evaluate the extent of fugitive dust that is generated. The results demonstrated that in general the facility was in compliance with applicable annual and 24-hour concentrations for particulates. In addition, as part of this study the applicant observed the extent of salt damage to nearby vegetation. While in some areas close to the facility there was evidence of salt damage on the vegetation, the applicant concludes that any salt damage would be limited to the width of adjacent hedgerows.

In the DEIS, the applicant describes the mitigation measures that will diminish blowing salt. The crushing and processing operations are below ground and the salt will be conveyed in enclosed facilities. Also, a greater portion of the salt will be stored indoors than at Retsof.

At the issues conference, PACE attorney, Mr. Seeger requested and was provided an opportunity to brief the legal issue of whether the air pollution regulations require that this facility apply for a permit. While the PACE brief did touch on this matter, it failed to provide additional support for PACE's position that a permit was required. Therefore, this argument is rejected.

We do not find an adjudicable issue on this proposed matter as the applicant's proposal does not indicate an emissions point that would be subject to regulation under Part 201. As to fugitive emissions from the salt pile or other operations at the facility, the permit addresses these concerns subject to our comments above and PACE has failed to provide further information to show that the facility is not likely to meet the State's air pollution requirements.

Traffic

In its petition, RAGE maintains that the increase in truck traffic in the vicinity of the new mine will create safety risks due to increased congestion, lack of off-site parking, and slow moving vehicles entering and exiting the project site within a 55 mile per hour zone. In addition, RAGE criticizes the DEIS for lack of a contingency plan for major motor vehicle accidents, the impact of large numbers of trucks using primary and secondary routes if rail service is suspended and the effects of continued subsidence on existing roads.

The DEIS includes an analysis of truck and car traffic associated with the proposed mine which concludes that the level of service results for Route 63 with the proposed improvements will be acceptable. Improvements include separate right-turn deceleration land and northbound left-turn lane on Route 63 as well as two exit lanes and one entrance lane at the proposed truck access driveway and one exit and one entrance lane at the proposed employee access driveway.

The study projects that once the new mine is fully operational truck traffic into the Village of Geneseo will decrease because there will no longer be a need to route traffic from Retsof to the destination points of Exits 7 & 8 at I-390. The new mine also allows for additional truck staging area to prevent trucks from backing up on Route 63. The likelihood that more space would be required is very small according to Akzo. Mr. Milliken further explained that although there was truck back-up during the winter of 93-94, there were no accidents and the design for the new mine addresses this concern. In addition, according to the DEIS, proposed truck and employee access drives are designed to provide near optimum sight distance conditions.

In response to RAGE's concern regarding bridge stability due to subsidence resulting from the Retsof collapse, the Akzo representative, Mr. Milliken explained that the company was monitoring the bridges at the request of DOT; however, there had been no movement and none was anticipated.

At the issues conference, we inquired of RAGE as to the credentials of any expert the group would offer on this subject. While Mr. William A. MacGregor, a former DEC environmental analyst was offered, he admitted that he had no expertise in this area. A follow-up submission by Mr. MacGregor further confirms that he has experience in fish & wildlife issues and general expertise with respect to environmental analysis. As noted by staff at the issues conference however, at the point where the applicant has put forward a traffic plan and analysis by traffic experts, RAGE's offer of proof is deficient.

Again, while RAGE argues many general points regarding possible problems associated with traffic, it fails to offer any substantial evidence that counters what the applicant has submitted on this subject in the DEIS. Thus, we must conclude that traffic is not an adjudicable issue in this proceeding.

Noise

While this issue was briefly touched on by RAGE, once again there was no presentation of information that would point to defects in the applicant's analysis of noise levels at the proposed mine site. RAGE offered Mr. MacGregor again as an expert in this area, but his credentials did not support this offer. In any event, regardless of Mr. MacGregor's expertise, the RAGE petition does not offer any analysis that would suggest that there is an adjudicable issue regarding noise.

In the DEIS, the applicant presents its study which entailed an analysis of current noise conditions at the mine site, a prediction of noise levels based upon the equipment and activities at the Retsof mine and a review of noise related to the railroad. The applicant observes that because the mine site is located in a primarily agricultural area, it has few sensitive receptors adjacent to the site boundaries. There are four residences, two of which are either owned by Akzo or under purchase option to the company as well as a gas station/convenience store nearby. The study concluded that noise levels at the mine site are typical of those for developed areas primarily because the site is near two major roads, Route 63 and I-390.

Equipment use during construction and blasting associated with the shaft development will result in noise levels above ambient levels. As the shaft is sunk, the noise levels at the surface will be reduced and all blasting will be conducted in accordance with accepted practices. Thus, vibration would be below threshold damage levels.

The DEIS identifies the moving and loading of railroad cars and trucks as the main source of noise at the proposed mine. Because the mine operations will take place below ground, these activities would not be audible. The results of the noise survey at the Retsof mine indicate that the noise levels would be within the current ambient noise levels at the proposed mine site.

The DEIS concludes that the proposed railroad tracks would be at the western boundary of the site adjacent to I-390 and approximately 1500 feet from the sensitive receptor on Route 63. The applicant concludes that noise produced during railroad activities should not result in an increase of more than 5 dBa over ambient noise conditions for the sensitive receptors. The DEIS further concludes that there would be significant reductions on the effect from noise from the railroad on other sensitive receptors due to the distance of the proposed rail site to the residences on Route 63 and Abele Road.

The DEIS presents an adequate assessment of noise impacts. We find no adjudicable issue regarding noise impacts.

Other Issues

Based upon comments received by this office from the Livingston County Department of Health (LCDOH) and the New York State Department of Transportation (DOT), by letter dated November 22, we asked the applicant and staff to clarify and address the concerns of LCDOH and DOT. As discussed above at page 31, by letter dated December 4, 1995, Regional Director Gurley indicates DOT's approval of Akzo's response to its comments. By letter dated December 14, the applicant sent correspondence to this office from LCDOH Director Joan Ellison and and from Mr. Milliken reflecting discussions had between the applicant and LCDOH. Based upon Akzo's summary of the discussion, Ms. Ellison stated that LCDOH is satisfied with Akzo's response to its concerns.

All other proposed issues which we have not explicitly addressed in these ruling have been considered and found not to raise issues for adjudication or to require the provision of additional information.

SUMMARY OF ISSUES RULING

The following issues are identified for adjudication:

  1. Whether the applicant has adequately assessed groundwater resources in order to ensure protection of water supplies.
  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.
  3. Whether the applicant has sufficiently analyzed the effects of the life of mine (9,000 acres) on the archeological resources in that area to ensure that appropriate mitigation measures are taken to protect such resources.
  4. Whether the PCP system is a viable alternative to the rail spur in order to mitigate harm to agricultural lands.

RULINGS ON PARTY STATUS

Adjudication of the issues summarized above is necessary prior to a determination on the permits. As explained above, because the Union and IDA have not submitted petitions that would allow for party status pursuant to 624.5(d)(2), we deny party status to these petitioners.

Pursuant to 6 NYCRR 624.5 (D)(1), the ALJ's ruling of entitlement to full party status will be based upon:

  1. A finding that the petitioner has filed an acceptable petition for party status pursuant to 6 NYCRR 624.5(b)(1) and (2);
  2. A finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
  3. a demonstration of adequate environmental interest.

PACE has demonstrated an adequate environmental interest and has submitted an adequate petition. In addition, we have found that PACE has raised issues for adjudication with respect to the geology and hydrogeology. Thus, PACE is granted full party status.

The League of Women Voters initially applied for amicus status with respect to issues concerning subsidence and hydrogeology. The League has adequately demonstrated environmental interest. During the issues conference, the League requested and was granted an opportunity to supplement its initial petition to request full party status concerning matters related to water supplies. The League agreed to be consolidated with PACE on this issue and PACE agreed to such consolidation. Based upon the League's November 10, 1995 submission, we find that the League can make a meaningful contribution to the record regarding the issue of water supplies in terms of community impacts. Therefore, pursuant to 6 NYCRR 624.8(b)(1)(xi), the League is consolidated with PACE.

RAGE has demonstrated an adequate environmental interest and has submitted an adequate petition. We find that RAGE has raised two issues for adjudication concerning the adequacy of the applicant's proposed measures for protection of archeological resources and the use of the alternative PCP system to the railroad spur. Therefore, we grant RAGE full party status.

APPEALS

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner Michael D. Zagata (NYSDEC, 50 Wolf Road, Albany, New York 12233) on an expedited basis, within five days of the disputed ruling, pursuant to 6 NYCRR 624.8(d)(2). However, due to the complexity and length of this ruling, the period for filing appeals is extended. Written appeals may be filed by January 8, 1996; replies to appeals may be filed by January 19, 1996. Three copies of the appeals and replies are to be filed; one to the Commissioner and two to the Administrative Law Judge.

Filings must be received by the Commissioner by the dates indicated. The parties shall ensure that transmittal of all papers is made to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No filings by telecopier will be allowed or accepted. Appeals should address the Administrative Law Judges' rulings directly, rather than merely restate a party's position. To the extent practicable, appeals should also include citations to pages in the transcript or to specific documents.

The parties are advised that to the extent the Commissioner's Interim Decision affirms issues for adjudication identified in this ruling, or certifies other issues for adjudication, this matter will proceed promptly to adjudicatory hearing. In that event, we will set a schedule for prefiled expert testimony on issues identified for adjudication.

For the New York State Department
of Environmental Conservation

/s/
By: Helene G. Goldberger
Administrative Law Judge

/s/
Kevin J. Casutto
Administrative Law Judge

Dated: Albany, New York
December , 1995

TO: Distribution List

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