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Amenia Sand and Gravel, Inc. -Interim Decision, August 27, 1997

Interim Decision, August 27, 1997

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

In the Matter

- of the -

Application of

AMENIA SAND AND GRAVEL, INC.
for permits to operate a hard rock mine/quarry
in the Town of Amenia, Dutchess County
pursuant to the Environmental Conservation Law and Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York

DEC Project No. 3-1320-00030/2

INTERIM DECISION

August 27, 1997

INTERIM DECISION OF THE COMMISSIONER

The Oblong Valley Association ("OVA") has appealed to the Commissioner pursuant to 6 NYCRR 624.8(d)(2) from portions of the issues rulings of Administrative Law Judge Robert P. O'Connor in this proceeding. This interim decision decides OVA's appeal. Because Commissioner Cahill was the Department's General Counsel when the issues conference took place, responsibility for decision of this appeal has been delegated to the Deputy Commissioner for Environmental Quality.

This is a mining permit case. The Applicant, Amenia Sand and Gravel, Inc. ("AS&G"), proposes to quarry schist and marble on lands adjacent to Dutchess County Route 3 near South Amenia in the Town of Amenia ("Town"). AS&G currently mines unconsolidated sand and gravel at the site and has been issued a mined land reclamation law permit by the Department for that activity. AS&G has applied to the Department for new mined land reclamation and air emission permits to authorize quarrying of rock, which it apparently intends to substitute for sand and gravel mining. A draft environmental impact statement ("DEIS") accompanies AS&G's application, which Staff has deemed complete. A public statement hearing and an issues conference have been held with respect to AS&G's application. The environmental impact review is being coordinated with the Town, which is considering rezoning and special use permit applications for the project.

Following the issues conference, ALJ O'Connor, on June 17, 1997, ruled that AS&G needed to update and further develop parts of the DEIS. Subject to receipt of the additional information, he ruled that there is a possibility that adjudicable issues may exist with respect to visual impacts, air quality impacts, traffic, water quality impacts and adverse economic impacts on real property. However, he rejected OVA's assertions with respect to other potential issues for adjudication. OVA appealed those and related aspects of his rulings. No other party appealed. AS&G and Department Staff oppose OVA's appeal.

Issues Raised by OVA in Its Appeal

OVA's appeal raises points which can be categorized as follows:

  1. Premature application
  2. SEQRA problems
  3. Record of compliance
  4. Denial of proposals to adjudicate issues on noise, hydrogeology, and reclamation

OVA's contentions with respect to each issue category are addressed below. For the reasons given below, it is concluded that OVA's appeal is without merit and is accordingly denied in all respects.

Premature Application

OVA's initial argument is that DEC should postpone consideration of AS&G's application. It is premature, argues OVA, to consider the application because AS&G does not intend to commence quarrying for ten years into the future and the facts and circumstances could change prior to that time, warranting a postponement.

OVA's argument, however, is both legally infirm and factually questionable. Legally, the Uniform Procedures Act ("UPA"), Article 70 of the ECL, mandates that complete applications to the Department should be processed to the point of a final decision within reasonable times. The UPA does not allow the Department to postpone consideration of permit applications indefinitely. Additionally, the State Environmental Quality Review Act ("SEQRA"), ECL Article 8, encourages environmental review of proposals "as early as possible in the formulation of a proposal for an action" (8-0109.4). The underpinnings of OVA's "prematurity" argument are weakened considerably by these directives of the UPA and SEQRA. Further, the Department's permit fee program under Article 72 serves as a disincentive to the filing of allegedly "premature applications."

Factually, AS&G clarified the record in its answering papers with Dr. Budnick's's affidavit. It states that AS&G would commence quarrying within approximately one year of permit issuance and would only continue to extract sand and gravel until the quarry was ready to operate. Based on the affidavit, this appears to be the Applicant's intent regardless of the extent of remaining unconsolidated sand and gravel reserves. The affidavit clarifies the somewhat confused transcript of the issues conference in this regard. The ALJ's interpretation based on that transcript was that quarrying would not begin until all existing unconsolidated sand and gravel reserves were exhausted some ten years in the future. However, the transcript (Tr. 164) states that mining of sand and gravel and quarrying of rock will be "consecutive" and not "concurrent," and that production rates will not double.

Given the above statutory and factual backdrop, I see no basis on which to discontinue consideration of AS&G's application, and OVA's appeal on that issue is denied. However, the record needs to be clarified as to AS&G's intentions with respect to the sequencing of sand and gravel excavation and quarrying at the site. That can be addressed by the ALJ in future proceedings.

SEQRA

OVA attacks the DEIS as substantively inadequate. Moreover, OVA claims that the ALJ erred in not annulling Staff's determination of completeness. However, I conclude that the ALJ's less drastic approach, requiring updating and amplification of the DEIS in certain respects, was reasonable.

1. Supplemental EIS -- First, OVA claims that the ALJ erred in not ordering preparation of a supplemental EIS. OVA points out that the ALJ has required the Applicant to provide additional information on visual, air quality, water quality and traffic impacts. The ALJ's rationale was that factual changes may have occurred since the DEIS was initially prepared and that in certain respects the analysis in the DEIS was shallow. He concluded that additional information on visual, traffic, and air quality and water quality impacts was needed and that further discussion of these topics can be covered in more detail, if necessary, at a hearing. OVA appears to support the notion that the record needs to be developed on these points. OVA's objection is that the DEIS itself lacks the degree of analytical penetration necessary to qualify as a "hard look" with respect to those issues. It urges that therefore the SEQRA process should be re-started from "square one." However, I agree with the ALJ that a remand to formally supplement the DEIS is not necessary or appropriate under the circumstances here. This is supported by 617.8(g) of the Department's rules. The project as proposed is the same; no changes to the project are proposed which may result in any significant adverse environmental effect. (The rezoning proposal has been reduced from 470 acres to 89 acres which of itself would not be adverse.) There is no newly discovered information. Rather than preparing a Supplemental EIS, there can readily be further amplification of the DEIS as proposed by the ALJ to reflect on the visual, traffic, air quality and water quality impacts of Applicant's proposal. Applicant has agreed to provide amplification on these points. A Supplemental EIS is neither needed or appropriate under the circumstances. See Morse v. Town of Gardiner Planning Board, 164 A.D.2d 336, 563 N.Y.S.2d 922 (3d Dept. 1990) and Horn v. IBM, 110 A.D.2d 87, 493 N.Y.S.2d 184 (2d Dept. 1985) appeal denied, 67 N.Y.2d 602, 490 N.E.2d 556, 499 N.Y.S.2d 1027 (1986).

2. SEQRA defects -- Second, OVA claims that DEC, as the SEQRA lead agency in this case, improperly delegated to the Town the responsibility to consider the potential land use and environmental impacts related to proposed rezoning of the site to accommodate the quarrying operation. OVA couples with this claim assertions that the DEIS failed to evaluate the potential for certain alleged "cumulative" impacts and that the DEIS improperly used the baseline data from AS&G's ongoing existing mining operation when it evaluated the impacts of the proposed quarrying operation.

Zoning

OVA claims that "the DEIS fails to assess any of the subject matters relevant to Applicant's proposed rezoning application, including its environmental impacts, the consistency of the proposed rezoning with the Town's Comprehensive Plan and alternative uses that would be permitted under the proposed rezoning in addition to mining."

However, the DEIS does discuss "zoning and land use" at 3.6.5 and 4.6.5. Section 4.6.5 notes that AS&G seeks rezoning and a special use permit from the Town. That discussion addresses conversion of about 465 acres to "RA" (agricultural) which it states would be consistent with adjacent zoning districts (see figures 32 and 33), and would not change the permitted principal land uses in the area. The DEIS states that alternative uses of the site are limited to residential and recreational, and that the proposed quarry sites would be difficult to develop for residential dwellings because of the rough terrain. (7.8).

Moreover, the ALJ's ruling that shortcomings in the Applicant's visual impact analysis which need to be addressed is based on information provided by OVA and the Town, including the Town's Master Plan. In this regard, additional assessment of the proposed project's visual impacts and relationship to the Town's Master Plan has already been directed by the ALJ. In fact the Town's concerns as to visual, traffic, air and water quality were obviously appreciated by the ALJ, as indicated by the fact that he ruled that AS&G should amplify the record on these issues, and that holding an adjudicatory hearing on these issues remains a possibility. These issues are of great local concern and interest, and the Department is especially sensitive to concerns of this nature in these types of cases.

Cumulative Impacts

AS&G intends that the stone removed from the proposed quarry will be processed at its Leedsville processing plant, located five miles away. The Leedsville plant is AS&G's "main plant." It receives unprocessed material from various locations and presumably ships the processed product to the end user from that site. The ALJ stated that Leedsville is operated as a separate and distinct facility, the continued operation of which does not depend on approval of the application here under consideration.

However, OVA contends that the DEIS should have considered the cumulative environmental impacts of quarrying at the site under consideration in this case together with the incremental environmental impacts at Leedsville that occur as a result of processing at that location of rock from the site under consideration. The ALJ correctly rejected that contention. There is no indication that there would be an incremental increase in environmental impacts at Leedsville beyond the limits of the existing permits and requirements which are part of the baseline environmental setting. The ALJ's ruling was correct.

Baseline

OVA contends that the DEIS is deficient because it should have evaluated potential impacts in the absence of any mining activity instead of the existing conditions under which AS&G has operated the existing sand and gravel mine. AS&G has operated its sand and gravel mine at this site since 1967. This operation is part of the existing site conditions which conditions are required to be set forth in the DEIS.

OVA appears to argue that the past and existing use of the site should be disregarded and an undeveloped site should be imagined to exist. Implicit in OVA's argument is the faulty premise that only the incremental increases in noise, traffic, and visual effects will be considered by DEC in determining whether to issue or to impose conditions in the requested permits. Such a premise is only partly correct. In addition to considering incremental environmental effects, DEC must determine whether the proposed project will be reasonably consistent with all of the requirements of the MLRL, SEQRA, and air and water quality standards. The DEIS and additional information provided by the Applicant will enable DEC to carry out its statutory responsibilities. OVA's argument is specious and is rejected.

Alternatives

OVA argues that the DEIS "fails to discuss or consider the range of reasonable alternative uses permissible under the present or proposed rezoning." While the DEIS focuses on alternative mining options (see DEIS pp. 7-1 to 7-13), it also refers to the potential for residential and for recreational uses (p. 7-13). Likewise, the "no action" alternative is discussed (Id).

Thus OVA's contention as to alternatives is erroneous. To the extent that OVA may be able to provide constructive substantive comment on the discussion of alternatives in the DEIS, such comment will be received and considered.

Record of Compliance

OVA appeals from that part of the ALJ's rulings which declined to set down for the adjudicatory hearing an issue concerning the "suitability" and record of compliance of the Applicant. OVA asserts, and the other parties do not dispute, that a principal of AS&G is also a principal of Harlem Valley Landfill Corporation ("HVLC"). HVLC is under a Department consent order and related enforcement. This situation, coupled with a separate violation in 1986 of a setback restriction in AS&G's mined land reclamation permit, are asserted by OVA to raise an adjudicable issue.

DEC Staff, on the other hand, disagrees. Staff reports that the HVLC matter is being separately worked out. The 1986 setback matter was long ago resolved. However, Staff recently proposed two additional conditions for AS&G's draft MLRL permit in this case. They are designed to strengthen Staff's power to ensure timely compliance with reclamation requirements under the MLRL.

No adjudicable issue is raised as the ALJ correctly concluded. On the other hand, the Applicant's (AS&G's) compliance record always remains relevant to the terms of a final decision in this case.

Denial of Proposals to Adjudicate Issues on Noise, Hydrogeology, and Reclamation

OVA appeals from the ALJ's determinations to reject requests to adjudicate noise, hydrogeology and reclamation issues. However, the ALJ's Rulings on these points are well reasoned. They are upheld for the reasons given by the ALJ.

Conclusions

The appeal by OVA is denied in all respects for the reasons given above.

For the New York State Department
of Environmental Conservation

/s/
By: David Sterman
Deputy Commissioner

Dated:Albany, New York
August 27, 1997

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