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Amenia Sand and Gravel, Inc. - Second Interim Decision, November 22, 2000

Second Interim Decision, November 22, 2000

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 operatea 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

SECOND INTERIM DECISION

November 22, 2000

SECOND INTERIM DECISION

This second interim decision addresses the appeals filed pursuant to 6 NYCRR 624.8(d)(2) from portions of the August 10, 2000 supplemental issues rulings of Administrative Law Judge ("ALJ") Robert P. O'Connor. Appeals were filed on September 1, 2000 and responses were filed on September 12, 2000. Responsibility for decision of this appeal has been delegated to the Deputy Commissioner Johnson because Commissioner Cahill was the Department's General Counsel when the initial issues conference took place.

Background

Amenia Sand and Gravel ("AS&G" or "Applicant") 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. AS&G has applied to the Department for a new mined land reclamation and air emission permits to authorize the quarrying of rock. During the review of the quarry application, AS&G submitted an application to expand its sand and gravel mining operation. The primary focus of this interim decision is on the relationship of the sand and gravel mine expansion to the proposed new rock quarry.

A draft environmental impact statement ("DEIS") on the proposed quarry operation was circulated and a public hearing was held in May, 1996. Following an issues conference, on June 16, 1997 the ALJ ruled there were potentially adjudicable issues regarding visual impacts, traffic, air quality and water issues. He also requested complementary information regarding traffic, air quality, and visual areas to bolster the DEIS but not to formally cause the DEIS to be supplemented ("SDEIS"). The ALJ also rejected certain issues proffered by the Oblong Valley Association ("OVA") for adjudication. OVA appealed. Applicant and Staff did not appeal. Applicant submitted a response to OVA's appeal.

On August 27, 1997, the interim decision of the Deputy Commissioner affirmed the ALJ's ruling in all respects. Briefly, the interim decision held; 1) a SDEIS was not required and the ALJ's request for additional information was reasonable, 2)zoning, cumulative impacts, baseline traffic data and alternatives were either adequately addressed in the DEIS or would be addressed through the continuing proceeding, 3) there are no "record of compliance" issues, and 4) issues regarding noise, hydrology and reclamation will not be adjudicated.

The complementary information requested by the ALJ in his earlier ruling was circulated by the Applicant in July, 1999. Comments were filed with the ALJ by the parties regarding that information. The ALJ then rendered his August 10, 2000 supplemental issues ruling ("Sup. Ruling"). The ALJ concluded that visual, air and water impacts would be adjudicated but that traffic issues would not and that the project was not segmented contrary to the State Environmental Quality Review Act ("SEQRA"). OVA appealed the Sup. Ruling. Applicant's responses to OVA's appeal argued in support the ALJ's ruling, finding traffic issues were not adjudicable and arguing the project was not segmented. Applicant did not appeal the ALJ's ruling to adjudicate issues of air quality, visual and water impacts.

Staff did not file a response to the OVA appeal. However, Staff filed an August 31, 2000 letter addressed to the ALJ, but not to the Commissioner, commenting on the ALJ's ruling. A review of that letter in the ALJ's file indicates Staff disagreement with certain substantive aspects of his ruling. OVA, by letter of September 15, 2000 to the Commissioner, responded to Staff's August 31, 2000 letter. Staff's letter to the ALJ was improper and should have been addressed to the Commissioner. Accordingly, Staff's letter will be considered an appeal and OVA's response to it will be considered as well. No other party sought to respond further.

SEQRA Segmentation

By way of introduction, the following quote puts the SEQRA segmentation issue in perspective:

Segmentation is universally criticized, but no two people agree on precisely what it is. In many controversial projects there are accusations of segmented review, and not infrequently this charge is justified. The difficulty arises in distinguishing between that segmentation which is required by the exigencies of project review and approval, as opposed to that which distorts the review process as to require judicial invalidation. See, Environmental Impact Review in New York, Gerrard, Ruzow and Weinberg, Vol. 2, Section 5.02. ("Gerrard").

Considering only a part or segment of an action is contrary to the intent of SEQRA. See, ECL § 8-0101 et seq. Segmentation is defined as the division of the environmental review of an action such that various activities or stages are addressed as though they are unrelated activities, needing individual determinations of significance. See, 6 NYCRR 617.2(ag); 617.3(g)(1).

Given that ECL Article 8 requires a complete environmental review, a heightened review is necessary in instances where seemingly related activities within the mine site are addressed individually.

The ALJ held the rock quarry project was not segmented contrary to SEQRA, because the quarry operation was 'functionally independent' of the planned sand and gravel mine expansion to be located on AS&G property within the mine site. This area, known as 'Bank E', will be an expansion of the Applicant's existing sand and gravel mining operation.

Staff issued a Notice of Incomplete Application (the "Notice") on June 3, 1999 for the Bank E permit application. Apparently no SEQRA determination of significance was made on the Bank E project. In that Notice Staff requires an AS&G response to questions regarding segmentation raised by Staff with reference to the SEQRA Handbook, to aid Staff in deciding whether the project is segmented contrary to SEQRA. AS&G had not responded to Staff's questions prior to the ALJ's August 2000 Sup. Ruling. AS&G, however, in its response to OVA's appeal, addresses the questions. See, AS&G response p. 11.

OVA takes the position on appeal that: since the Applicant currently has an incomplete application pending before the Department for expansion of the Bank E sand and gravel mining operation, it would be impermissible segmentation of the rock quarry permit application environmental review if the Department did not require the applicant to supplement its rock quarry DEIS to address the Bank E application.(1) See, also OVA September 15, 2000 letter responding to Staff's 'acceptably segmented' position.

AS&G states that the two pending applications are 'functionally independent' of one another, linked only by the Applicant's desire to have a steady source of materials. Further, the Applicant contends its Bank E operations will cease once the quarry becomes operational.

Discussion

As noted by Gerrard, supra, and others, distinguishing between permissible and impermissible segmentation can be difficult. Impermissible segmentation may occur if certain activities are wrongly excluded from the definition of the project. See, Gerrard, § 5.02[1]. Permissible segmentation requires that related project actions be identified and discussed to the fullest extent possible. 6 NYCRR 617.3(g)(1). Determining whether a project is segmented involves a "...judgment based on weighing case specific factors." See, Matter of Dutchess Quarry & Supply Co., Inc. Decision, August 13, 1992.

The proposed thirteen acre sand and gravel mining expansion operation is before the Region 3 Staff but the permit application is incomplete. Completing this permit application is within the control of the Applicant. Regardless whether the application is administratively incomplete, the proposed sand and gravel expansion must be evaluated in the present rock quarry application review to decide whether the Bank E mining expansion was wrongly excluded from the DEIS and is impermissibly segmented contrary to SEQRA. The answer turns on the facts known about the proposed sand and gravel expansion and the quarry operation.

The pending Bank E sand and gravel mining operation is a stop-gap measure to ensure the Applicant has sufficient mineral resources to keep operating, pending a Department's decision on the permit application for the hard rock quarry. If approved by DEC, AS&G's rock quarry will replace the currently permitted sand and gravel operation. AS&G response p. 13. The Bank E sand and gravel operation will also cease once the quarry is developed. AS&G response, Exhibit C par. 3, p. 2. Sup. Ruling p. 3. See also, AS&G response pp. 10 and 11. AS&G estimates the life of the expansion area to be roughly 30 months. About 125,000 tons will be mined during that time. The processing of AS&G sand and gravel occurs off-site at the Applicant's processing facility in Leedsville.

Therefore, under the facts presented thus far, the rock quarry project and the Bank E operations are 'functionally independent' of one another. The purpose of the Bank E expansion is to have a ready source of materials available in the interim until a decision on the quarry is made. Contrary to the assertions of OVA, I conclude there is no larger 'plan' which would be a factor in triggering segmentation. The Applicant conceived the Bank E project as a stop-gap project of limited duration; Bank E allows the business to operate until a decision is made on the rock quarry application.

Accordingly, it is reasonable to conclude there is no long range plan of which the expansion is part, or will be undertaken consistent with any plan, and is not dependent on such plan. Bank E can be reviewed on its own. A "...segmented review is permissible where the lead agency believes that is it warranted under the circumstances...." Concerned Citizens v. Zagata, 672 N.Y.S.2d 956 (3rd Dep't 1998), lv. to appeal denied, 92 N.Y.2d 808, 678 N.Y.S.2d 594 (1998). (Staff properly conducted a segmented review for a transfer station project as the project was wholly independent of a materials recovery facility and incinerator located on the same site.)

However, it is premature to decide the segmentation analysis based on this record. Staff, while voicing an opinion that the project is 'acceptably segmented', has yet to complete the review protocol specified in 6 NYCRR 617.3(g)(1), to wit:

If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible.

I am mindful of the ALJ's Sup. Ruling based on the record before him. But on appeal the issue of permissible segmentation was raised for the first time by Staff. The elements necessary to complete a permissible segmentation review are missing. I must allow record development on this issue to ensure consistency with SEQRA and a prudent environmental review. All aspects of the determination of significance for Bank E must be completed prior to addressing the segmentation issue. Until this protocol is satisfied there can be no decision whether segmentation is impermissible, as OVA asserts.

OVA points out that conflicting information exists in the record to suggest the simultaneous mining operation of both sites. OVA Mem of Law p. 6. AS&G notes OVA's misstatements of fact. AS&G response p. 3. However, any confusion on this issue is resolved by a permit condition in both draft permits to ensure the two operations do not operate simultaneously. Staff is directed to impose a special permit condition to this effect in each draft permit, provided Staff's protocol analysis concludes this is justifiable segmentation.

Traffic Impacts

In his initial June 16, 1997 Ruling the ALJ required additional complementary information on traffic issues. This was subsequently completed by the Applicant's consulting engineers who prepared a traffic impact study and circulated it to the parties for comment. Thereafter, the ALJ found that the cessation of mining operations at Bank E and the consecutive commencement of the quarry operations would not increase traffic on local roads and thus no adjudicable traffic issues were raised.

OVA's appeal seeks reversal of the ALJ's ruling on traffic. They first intimate the ALJ applied the wrong standard to raise an issue, suggesting its offers of proof are sufficient to cause reasonable minds to inquire further. OVA Mem of Law p. 31. OVA then follows with a series of assertions to show why traffic issues should be adjudicated. OVA Mem of Law pp. 31-46.

OVA's assertions do not persuade me to reverse the ALJ's ruling. Judgment about the strength of the intervenor's offer of proof are made in the context of the application, its supporting documents, the analysis of Staff, and any responses provided by the applicant. See, Matter of Bonded Concrete, Interim Decision, June 4, 1990, p. 2 The ALJ is the primary judge of whether a fact issue exists and substantial deference is given the ALJ's judgment. See, Matter of Waste Management of New York, Interim Decision, March 10, 1995, p. 1 (citing Matter of Hyland Facility Associates, Interim Decision, August 20, 1992). I find the ALJ used the proper standard of review and did not abuse his discretion.

With respect to OVA's comments on the alleged deficiencies regarding the traffic impact study, the Applicant's consulting engineers have responded. The ALJ methodically reviewed the traffic impact study and all comments and responses. He determined the responses sufficiently answered all of OVA's criticisms to satisfy SEQRA. Concurrent mining operations will not occur. The traffic flow will be acceptable. Local highway authorities are responsible for ensuring the service life of the highway. See, AS&G response pp. 13 - 16. Accordingly, I affirm the ALJ's ruling on traffic.

Commercial Driveways

The ALJ ruled that the DEC mining permit must be conditioned to require the Applicant satisfy the County's commercial driveway standards where the Applicant's operations have entrances onto County roads. Sup. Ruling p. 11. The County did not seek to intervene in this proceeding on traffic or associated issues. Nonetheless, they supplied comment to the ALJ on highway loading and driveway concerns. The County suggests Applicant's driveways need to meet commercial standards. Staff disagrees with the ALJ's inclusion of a special permit condition that Staff believes is "...outside of our authority and thus our enforcement capabilities". Instead, they would rely on the general permit conditions that a permittee must obtain other requisite permits or approvals as necessary and obey other applicable laws and regulations.

In view of the County's limited participation in this review, providing comments but not intervening in these proceedings, it is appropriate to adopt the Staff's recommendation regarding commercial entrances. Compare, Matter of William E. Dailey, Inc., Interim Decision, June 20, 1995. "...the Town, which is the acknowledged agency with authority over the road, has offered expert proof with respect to the inadequacy of Farmers Inn Road that is at variance with the Applicant's analysis." Id p. 5. (The Town was a party to that proceeding.) Given that the County is not a party to this proceeding, the general permit condition will suffice.

Miscellaneous

By letter of September 13, 2000, Staff wrote the Commissioner that new information concerning the Applicant's rock quarry recently became available. Tremolite is a mineral that can be found in a asbestiform type or non-asbestiform type in quarries. Staff made a site visit and opined that the quarry contains a non-asbestiform type of tremolite. However, Staff cautions that the record should reflect there is a potential for asbestiform to be at the quarry based on Staff's limited site investigation.

By letter of September 14, 2000, Applicant responds, having first learned of the Staff's new information the previous day, that it would meet with Staff to pursue the tremolite concern. Applicant further states that the results of the meeting can be formalized pursuant to the regulatory provisions in 6 NYCRR 621.15(a), i.e., a request to AS&G to provide further information on the subject. Thereafter, whatever additional information is generated can be circulated to the parties and a motion to re-open the issues conference before the ALJ can made. According to the Applicant, until there is a ruling that tremolite is a potential issue, it should not be considered further by the Commissioner.

Staff's letter to the Commissioner that there may be a potential tremolite related issue, is noted. As AS&G correctly points out, the matter is properly before the Staff at this juncture. Any future dispute regarding tremolite is properly before the ALJ upon any party invoking proper motion procedures.

The application is remanded to the ALJ for further proceedings. Staff will complete the segmentation analysis consistent with the direction provided in this interim decision.

For the New York State Department
of Environmental Conservation

/s/
By: Carl Johnson, Deputy Commissioner

Dated: Albany, New York
November 22, 2000

1. The issue of whether the Applicant should be required to file a Supplemental DEIS in this proceeding was raised and was rejected by the ALJ in his first issues ruling and was affirmed by the Deputy Commissioner. Amenia Sand and Gravel, Inc., Interim Decision, August 27, 1997. To the extent OVA raises this issue again in this appeal, it is res judicata based upon the previously addressed arguments.

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