Amenia Sand and Gravel, Inc. - Ruling, June 16, 1997
Ruling, June 16, 1997
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of
AMENIA SAND AND GRAVEL, INC.
Leedsville Road, Box C
Amenia, New York 12501
for permits to operate a hard rock mine/quarry
in the Town of Amenia, Dutchess County
pursuant to the Environmental Conservation Law ("ECL") and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")
RULINGS OF THE
ADMINISTRATIVE LAW JUDGE
ON PARTY STATUS AND ISSUES
DEC Project No.
Amenia Sand and Gravel Inc. (the "Applicant" or "AS&G") has applied to the New York State Department of Environmental Conservation (the "Department" or "DEC") for a mining permit and an air pollution control permit in conjunction with its proposal to extract annually approximately 125,000 tons of consolidated material, consisting of marble and schist, over a period of approximately 150 years from two quarry areas totaling 89 acres (the proposed "Project") on a portion of a total site of 470 acres. The site straddles Dutchess County Route 3, also known locally as Bog Hollow Road, near its intersection with Benson Hill Road, also referred to on some maps as Benson Road, in the Town of Amenia, Dutchess County, New York.
The proposed Project site is currently being used for an existing unconsolidated sand and gravel mining operation. The quarrying operation is proposed to commence when the sand and gravel resources on the site have been exhausted, currently estimated to be approximately ten years into the future. Operations on the site of the proposed consolidated rock quarry would include blasting and initial crushing of the excavated rock. The rock would then be transported by truck via Dutchess County Route 2 to the AS&G main plant located near Leedsville, New York, approximately 5 miles northeast of the proposed hard rock mine, where all other crushing and processing of the rock would occur.
In addition to the above noted DEC permits, the Applicant may be required to obtain approvals from the Town of Amenia and/or Dutchess County for matters under local jurisdiction.
State Environmental Quality Review Act ( "SEQRA" ) Status and Determination of Completeness
The Department Staff determined on January 4, 1990 that the proposed Project may have a significant effect on the environment and issued a Positive Declaration. In response to the Positive Declaration, the Applicant prepared a Draft Environmental Impact Statement (DEIS) for the Project. On April 16, 1996, the Department Staff, as Lead Agency, (a) determined the application for the above described Project was sufficiently complete for the purpose of commencing its formal review, (b) accepted the DEIS for the proposed action as complete for review purposes, and (c) initiated a public comment period on the proposal.
Since the determination of significance regarding this Project, on January 4, 1990, occurred prior to the January 1, 1996 effective date of the current State Environmental Quality Review regulations in 6 NYCRR Part 617, this proposed action must comply with the SEQRA regulations in Part 617 which were effective June 1, 1987. Unless otherwise specified, all references to the SEQRA regulations in these Rulings are to the June 1, 1987 version.
Public Statement Hearing and Comment Period
Following publication of the required hearing notice in several newspapers in the vicinity of the proposed Project, a legislative public statement hearing to receive comments on the proposal and DEIS was held before Administrative Law Judge ("ALJ") Robert P. O'Connor of the Department's Office of Hearings and Mediation Services in the Wassaic Fire Company Meeting Room, Firehouse Road, Wassaic, New York at 7:00 P.M. on Tuesday, May 21, 1996. Approximately 140 people attended the hearing, with 18 persons making statements for the hearing record.
At the request of the Town of Amenia and others, the public comment period remained open until June 15, 1996. Forty-two written comments regarding the proposed Project were received during the comment period. The comments received, both written and the oral comments received at the hearing, were overwhelmingly opposed to the proposed Project.
A pre-adjudicatory hearing issues conference was held in the Town of Amenia Town Hall, Mechanic Street, Amenia, New York at 10:00 A.M. on Wednesday, October 9, 1996 and Thursday, October 24, 1996 to consider all timely filed applications to participate in any adjudicatory hearing which might be held in this matter.
At the issues conference, the Applicant was represented initially by the law firm of Florence and Smith, One Park Place, Suite 300, Peekskill, New York 10566 (Russell A. Smith, Esq., of Counsel), and subsequently, by Attorney Smith and by Laura Zeisel, Esq., 169 Main Street, P.O. Box 9, New Paltz, New York 12561, environmental counsel to Florence and Smith and AS&G. Assisting was Roy T. Budnik, PhD., President, Roy T. Budnik and Associates, Inc., 297 Mill Street, Poughkeepsie, New York 12601, the Applicant's geological and environmental consultant.
The Department Staff was represented by Carol Backman Krebs, Esq., Assistant Regional Attorney, in the Department's Region 3 Office, 21 South Putt Corners Road, New Paltz, New York 12561-1696. Also attending the issues conference were Regional Permit Administrator Margaret E. Duke, Environmental Analyst Lawrence G. Beigel, Mined Land Reclamation Specialist Robert Martin, Environmental Analyst Michael Merriman, Environmental Analyst James Bogner, Fish and Wildlife Ecologist Jack Isaacs, Wildlife Biologist Theodore Kerpez and Environmental Engineer Richard Rothe.
The Town of Amenia (the "Town") was represented by John B. Garrity, Jr., Esq., 248 Church Street, Poughkeepsie, New York 12601, attorney for the Town of Amenia, and by Arlene Iuliano, Town Supervisor.
The Oblong Valley Association (the "OVA") was represented by the law firm of Sive, Paget and Riesel, P.C., 460 Park Avenue, New York, New York 10022-1906 (Steven Barshov, Esq. and Michael D. Zarin, Esq., of Counsel). Assisting was Arnold F. Fleming, P.E., Allee, King, Rosen & Fleming, Inc., environmental and planning consultants.
Appearing pro se, were the following:
Algernon B. "Gerry" Reese, 144 Amenia Union Road, Amenia, New York 12501, as an individual member of and Councilman on the Amenia Town Board;
Robert and Tanya Cafiero, Box Canyon Farm, Benson Road, Box 34A, Wassaic, New York 12592; and
Margaret Erskine Quinn, RR 1, Box 197, Amenia, New York 12501.
Upon hearing oral arguments regarding petitions for party status and the proposed potential issues, I established a timetable for detailed written submissions from the above participants to address the proposed issues. In a confirming memorandum dated November 12, 1996, I notified the issues conference participants that initial responses were due to be mailed to the service list not later than November 22, 1996, with reply responses due to be mailed not later than December 4, 1996. Subsequently, upon request of the Town and the OVA, and consented to by the principal participants, these dates were revised to December 2, 1996 and December 13, 1996, respectively, with the latter date subsequently being revised again to December 20, 1996.
Summary Positions of the Participants
- The Department Staff
The Staff contends the Applicant's DEIS and supporting documents suitably characterize the Project site and the surrounding area. It is the Staff's opinion that the proposed Project, as conditioned by the draft permits, meets all applicable statutory and regulatory criteria. Finally, the Staff investigation of the Applicant's record of compliance has not revealed any unresolved issues which would bar permit issuance for the proposed hard rock quarry. The Department Staff has full party status.
- The Town of Amenia
The Town has jurisdiction over the zoning of the Project site. Under the Town's 1991 Master Plan and its current Zoning Law, the site is zoned as "RM" - allowing medium density residential development. This zone in the Town of Amenia does not authorize mining or quarrying as a permitted use. The Applicant's current unconsolidated sand and gravel extraction operations on the site are considered as a pre-existing non-conforming use, i.e. - the mining of sand and gravel constitutes a use of the land which existed prior to adoption of the Town's zoning regulations and thus is allowable under the Town Zoning Law. The Town contends the Applicant's proposed change to mining of consolidated materials on the site constitutes a change in use. In fact, the Applicant has applied for a change in zone to "RA" - residential agricultural. The RA zone does not allow mining or quarrying as of right, but only subject to a special use permit obtained through application to and approval by the Town of Amenia Zoning Board of Appeals. The Town asserts the Project will have an adverse impact on Amenia's visual resources as identified in the Town's Master Plan. Furthermore, the Town asserts that the DEIS fails to provide sufficient information either for the Department Staff to issue the requested permits or for the Town to make a determination regarding the requested rezoning. Additionally, the Town contends that the DEIS is deficient in its consideration of the visual impacts which will be created by the proposed Project. The Town, in its review of the DEIS, also commented extensively on a variety of other issues, which in its view were dealt with in a cursory manner or inadequately. However, due to budgetary constraints, the Town seeks only amicus status in any adjudicatory hearing which may be held in this matter.
- The Oblong Valley Association
The Oblong Valley Association contends that the Draft Environmental Impact Statement filed with the Department by the Applicant is deficient with respect to many potential impacts and fails to meet the requirements of the State Environmental Quality Review Act. The OVA identified a variety of issues for adjudication, alleging the proposed Project will have adverse impacts on visual quality and cultural resources, land use and zoning, traffic, noise, air quality, water/hydrogeology, biology/endangered species and reduction in property values. The OVA seeks full party status at any adjudicatory hearing in this matter. Additionally, the OVA submitted a Motion for suspension of the adjudicatory hearing and for a revised or supplemental Environmental Impact Statement (see Motion below).
- A.B. Gerry Reese
Mr. Reese expresses neither support for nor opposition to the proposed Project, but seeks full party status to participate in the hearing process as an individual member of the Amenia Town Board, since that body will have to ultimately determine the appropriate zoning for the proposed Project site. He notes that it seems inappropriate for the Department to be going forward with the mining application when the current zoning of the site prohibits the type of project proposed. Mr. Reese mentions the need to more fully identify the actual owner of the property in question and the necessity for the Town Board members to properly evaluate the potential social and economic impacts of the proposed Project. He notes that visual, noise and dust impacts related to land use patterns in the Town of Amenia are the most significant issues to be addressed. Since the Town of Amenia will use information in the DEIS as part of a coordinated review to decide the zoning issue, Mr. Reese believes his participation is essential to gather factual information and assure that issues of particular concern to the Town are properly addressed and considered.
- Robert and Tanya Cafiero
Mr. and Mrs. Cafiero's property abuts property owned by the Segalla-Cline Trust (John Segalla, Trustee), a portion of which is the northerly part of the site of the proposed Project. The Cafiero's operate a 61-acre horse farm which provides training and recreational opportunities for persons, including children, from the surrounding area who are involved in equestrian activities. The Cafiero's express their concerns for the effects blasting might have on their horses, and the safety of the persons riding the horses, as well as the overall Project's impacts on their peace of mind and quiet living. They also mention the variety of wildlife in the area, including a Bog Turtle (included on the State's list of endangered species) identified on their property, which will be directly or indirectly impacted by the proposed Project. The Cafiero's have applied for full party status in this proceeding.
- Margaret Erskine Quinn
Ms. Quinn expresses support for the Applicant in its pursuit of permits to operate the proposed hard rock quarry. She states the importance of a local source of economically available stone products for highway construction and for commercial, home and community development. She urges approval of the subject applications to assure continued economic stability and employment opportunities. Ms. Quinn does not believe there are any issues to be adjudicated, but in the event of an adjudicatory hearing, she seeks full party status in the instant proceeding.
Motion to Suspend the Adjudicatory Hearing, and Order Preparation of a Revised or Supplemental Draft Environmental Impact Statement
The OVA moved that any adjudicatory hearing in this matter should be suspended and the other relief requested should be granted because: (a) AS&G's current mining operation is in violation of law requiring DEC enforcement action prior to the adjudicatory hearing to ascertain whether AS&G's violations warrant a denial of the permit application or the imposition of stringent conditions in the Staff's draft permit; (b) two members of the Amenia Town Board, who have participated in all actions concerning AS&G's permit application to DEC and AS&G's attendant rezoning application to the Town, failed to disclose significant conflicts of interest and failed to abstain from voting, thereby seriously tainting the actions of the Town Board regarding AS&G's applications; and (c) the failure to analyze both the proposed rezoning of AS&G's entire 465 acre tract and the nonconforming use status of AS&G's stone crushing plant in Leedsville are such fundamental and serious defects in the DEIS that they mandate suspension of the adjudicatory hearing, reversal of the Department Staff's determination that the DEIS is complete and preparation of either a revised or supplemental DEIS.
The Alleged Violations -- Amenia Sand and Gravel, Inc., Harlem Valley Landfill Corporation and John Segalla
The OVA cites several passages from the Department's July 15, 1991 Record of Compliance, Enforcement Guidance Memorandum as the basis for linking review of AS&G's permit applications to its alleged violations of the ECL. These allegations relate to statements made as long ago as 1991 by two local residents that AS&G "had allowed a substantial volume of tires to be buried and disposed of on the 'North Quarry' site and had demolished and buried a house on the 'South Quarry' portion of the Property," i.e. - the proposed Project site.
Just prior to the start of the issues conference, the Department Staff inspected the site for evidence of the alleged illegal dumping activities and at my direction further investigated the circumstances relating to the OVA allegations of illegal tire and construction and demolition ("C&D") debris disposal activities on the site. These efforts revealed that some twenty years ago, a quantity of tires was buried on the portion of the South Amenia site located north of Dutchess County Route 3. Apparently, a small quantity of brick, mortar and wood from Sharon, Connecticut was also buried on the site. Although no subsurface investigations were undertaken, currently there are no tires or C&D materials visible on the ground surface at the site. Furthermore, at the time the disposal of the tires and C&D materials took place on the site, the solid waste regulations in effect then permitted such disposal of tires and C&D materials, so long as they were covered with soil. Therefore, the Department Staff does not consider the Applicant to be in violation of the regulations which were in effect at the time the actions occurred, nor do these actions constitute any current violations of law or regulations. DEC has no jurisdiction over whether these matters were in violation of any Town of Amenia ordinances.
An additional matter which was raised at the October 9, 1996 session of the issues conference related to violations at the site which were satisfied in a 1987 Order on Consent between John Segalla, Amenia Sand and Gravel, Inc. and the Department. These violations concerned AS&G's deviation from its existing mined land use plan and the mining of an area outside the area authorized, relating to a violation of the setback requirements. At some time in 1986, mining was observed to have occurred within 25 feet of the property line; in fact, a small knoll, comprising less than an acre, had been excavated to within seven feet of a county road. In satisfaction of the Consent Order, AS&G paid a $2,000 penalty and restoration/reclamation of the affected area was completed according to the schedule of compliance.
The Department Staff is unaware of any other violations, either alleged or actual, regarding the Applicant's operations at the South Amenia site.
During the issues conference sessions, the OVA also raised issues regarding the "bad actor" status of John Segalla, as regards his position as President of Harlem Valley Landfill Corporation, and his on-going noncompliance with the terms of a Stipulation and Order on Consent entered into on December 30, 1988, so ordered by Hon. Joseph Jiudice, New York State Supreme Court, Dutchess County, on November 24, 1989. The noncompliance issue relates to the continually delayed closure of the Harlem Valley Landfill beyond the date of July 18, 1993, i.e. - eight months after DEC approval of the final closure plan for the facility, as provided in the Order on Consent. As of the conclusion of the issues conference, the landfill had not achieved final closure, although substantial progress had been made towards this end.
The Harlem Valley Landfill Order on Consent provides that in the event of violation of the Order, the Department may consider the violations alleged in the complaint (regarding the landfill) in processing any future permit applications which may be submitted. A strict reading of this provision would be interpreted to include applications of Harlem Valley Landfill Corporation, and John Segalla, as President of the Corporation. The OVA seeks to extend Mr. Segalla's liability under this provision of the Order on Consent to applications of any and all corporate entities with which Mr. Segalla may be affiliated, including Amenia Sand and Gravel, Inc., of which Mr. Segalla is also President.
The Department considers noncompliance with the Order on Consent as a very serious matter. If such noncompliance was in the manner of a complete disregard for the Order's provisions, the Department Staff would not hesitate to utilize the Record of Compliance, Enforcement Guidance Memorandum in its review of the instant application by AS&G/Segalla. However, the Department Staff reported in December 1996 that it had met with the landfill representatives and inspected the landfill. At that time, the Staff was satisfied with the progress being made to achieve final closure of the landfill and reported that it would continue to monitor progress on the closure operations. The Staff does not find any reason at this point to call for suspension of the proceedings regarding the mining application.
The Conflict of Interest Allegations -- Amenia Town Board
The OVA raises the issue of a conflict of interest with respect to two members of the Amenia Town Board, alleging that the actions of these two individuals as members of a five-member Board have already and could in the future adversely affect the information the Town Board provides to the Department, the lead agency in this coordinated review process. Likewise, the OVA alleges that the Town Board's participation in the SEQRA/hearing process has been adversely affected by these two individuals.
Two members of the Town Board have relatives who are affiliated with the Applicant's President, i.e. - the brother-in-law of one is an employee of AS&G and the wife of the other is a former employee of AS&G and a current employee at the Segalla Golf Course. The OVA has alleged violations of General Municipal Law 809, which relates to certain disclosures by board members who act on zoning applications. These allegations have been brought to the attention of the New York State Department of State and the Amenia Town Ethics Committee.
The DEIS and the Proposed Rezoning and Leedsville Site
The OVA asserts that the DEIS submitted by the Applicant serves as a basis for involved agencies, including the Town of Amenia, to make SEQRA findings. In the instance of the Town, those findings relate to the Applicant's rezoning request for the proposed 89 acre quarry site.
The OVA states that the DEIS fails to consider the necessity for AS&G to apply for a subdivision request, as the 89 acre portion of the larger 470 acre site cannot be rezoned absent approval by the Town for a separate 89 acre parcel. Further, the OVA alleges that the DEIS fails to consider the impacts of the proposed Project on the remaining 381 acres and that it also fails to address the consistency of the proposed rezoning with the Town's Master Plan. The OVA states that the DEIS also fails to address reasonable alternative uses for the property which would be allowed under the existing zoning or for which the property could be rezoned in a manner consistent with the Town's Master Plan. Additionally, the OVA asserts that in passing judgement on a subdivision application, the Town of Amenia Planning Board would become a new involved agency which would not have had the opportunity to comment on the DEIS. Also, the OVA charges that the Department Staff erroneously accepted a letter from the former Town Supervisor indicating the Town Board did not have any comments on the DEIS, thus warranting a remand.
Next, the OVA charges that the Applicant has omitted from the DEIS any analysis of the AS&G main processing plant near Leedsville, which the OVA alleges is another pre-existing non-conforming use under the Town's current Zoning Law.
The OVA claims the DEIS is so fundamentally flawed that an adjudicatory hearing cannot go forward and that the Department Staff was remiss in declaring the DEIS "complete". The OVA calls for the preparation of a revised DEIS or a Supplemental EIS to address these deficiencies.
The allegations raised in the OVA Motion do not provide sufficient basis for the suspension of the hearing process. The portion of the OVA Motion which seeks to suspend the hearing process is denied. However, as discussed below and in the following Issues section, there is a need to update some portions of the DEIS and a necessity to undertake additional analysis of potentially adverse environmental impacts. Thus, the portion of the OVA Motion which seeks additional information is granted, in that additional work should be done by the Applicant to bring some sections of the DEIS up-to-date, to account for changes in circumstances which may have occurred since certain sections of the document were prepared seven or more years ago, and to supplement areas of the DEIS in which the analysis of potential impacts is cursory and insufficient to meet the "hard look" test required by SEQRA.
- The Alleged Violations -- Amenia Sand and Gravel, Inc., Harlem Valley Landfill Corporation and John Segalla
There are no outstanding violations identified at the Applicant's South Amenia site which warrant any DEC enforcement action. The prior dumping and burying of tires and C&D materials occurred at a time when such activities were allowed to be disposed of in the manner undertaken at the site. The only AS&G violation of mining regulations occurred more than a decade ago with an excursion beyond the approved mining boundaries. The violation was resolved by AS&G paying a monetary penalty and completing remedial activities on the site. The record of compliance of the Applicant, i.e. - Amenia Sand and Gravel, Inc. and its President, Mr. Segalla, is not an issue in this matter.
The efforts by the OVA to extend the record of compliance issue to the long delayed Harlem Valley Landfill closure could, under other circumstances, be a potential issue which might deserve further consideration. However, the Department Staff, while frustrated that closure of the landfill has taken so long, is satisfied that the necessary measures to finalize the closure of the facility have been taken. It appears that facility is, or will be shortly, in compliance with the Order. While the Staff indicated it would be monitoring progress of the landfill closure to determine if any other action should be taken, at this juncture, the Staff has given no indication that it intends to pursue any record of compliance issues against Harlem Valley Landfill Corporation and its President, Mr. Segalla.
- The Conflict of Interest Allegations -- Amenia Town Board
The conflict of interest issue brought to this forum by the OVA is plainly misplaced. As I noted at the issues conference, the Department of Environmental Conservation has no jurisdiction to consider conflict of interest issues regarding local government officials. These matters are appropriately handled in other venues. While the OVA stated they understood that I could not rule on or resolve such conflict of interest charges, they nevertheless petitioned for a delay in the instant proceedings while these allegations were dealt with by the Town Ethics Committee and/or a court of appropriate jurisdiction. The bottom line regarding this issue is that I have no authority to suspend the hearing process for an uncertain period of time while an issue over which DEC has no jurisdiction is decided elsewhere.
The SEQRA process has not been subverted as alleged by the OVA due to the reliance of the Staff on an erroneous letter from the former Town Supervisor. At the time it was received in December 1995, the Department Staff correctly relied on the representation of the former Town Supervisor that the Town had no comments regarding the DEIS. The Staff had no basis to disbelieve or disregard this information. However, the Staff then correctly took into account the February 16, 1996 repudiation of the former Supervisor's remarks by the current Town Supervisor. The Staff proceeded to set the comment period for the acceptance of comments on the DEIS through May 31, 1996, ten days after the date of the legislative public statement hearing on the DEIS, and then extended the comment period for an additional fifteen days, through June 15, 1996. The length of the comment period provided in this instance is more than adequate to satisfy the SEQRA requirements, and no one has called into question the sufficiency of the comments received.
- The DEIS and the Proposed Rezoning and Leedsville Site
With respect to the issues raised regarding alleged deficiencies in the DEIS, the document is not fatally flawed as charged by the OVA. The comments on the DEIS pointed out areas of the document which may not be as well developed as some of the issues conference participants would desire. That, in itself, does not render the document useless. The DEIS is a starting point. It is a document which should analyze the significant environmental effects of a proposed action and identify how those effects can be avoided or minimized. When a DEIS is accepted as complete, it is complete for the purposes of commencing formal review of the proposal. The opportunities for public comment, formal review and public hearings are all part of the SEQRA process established to fill in gaps and to provide updated information and analysis in the DEIS in order that an informed decision may ultimately be made regarding the proposal.
However, it is the Town, and the Town alone, with the authority to rule on the Applicant's rezoning request or to act on a subdivision request, if one is submitted by the Applicant. SEQRA does not change the existing jurisdiction of agencies nor the jurisdiction between or among State and local agencies. Furthermore, nothing in the SEQRA regulations prohibits an involved agency, e.g. - the Town of Amenia, from independently engaging in the review of any part of an application to determine compliance with technical requirements. Thus, the Town may seek additional or supplemental information and analysis concerning the impacts of the proposed action and compliance with its own statutes and regulations. Since the SEQRA process is currently ongoing, the Town and others may provide additional information to the lead agency, the DEC, for incorporation in a Final Environmental Impact Statement. Moreover, there is no justification for a formally revised DEIS or a separate Supplemental EIS with respect to the rezoning issue. There is no justification for formally suspending the hearing process to gather more information, although the Applicant's ability to timely provide the requested data and analysis may lead to a de facto extension of the hearing process.
I have directed in the Issues section below that certain sections of the DEIS be supplemented. If necessary then, the hearing process itself can be an appropriate forum for "fleshing out" the DEIS in those areas which may need further attention.
The Issues Proposed for Adjudication
The Town and the OVA dispute the Department Staff's determination of completeness of the application and acceptance of the DEIS as being complete for purposes of review. These intervenors cite what they consider as a lack of completeness of the application and insufficiency of the DEIS as the basis for adjudicating various issues. With respect to the Staff's determination of completeness of the application, the permit hearing regulations in 6 NYCRR Part 624 are clear that completeness of an application will not be an issue for adjudication. I have discussed the relationship of the SEQRA process to the sufficiency of a DEIS in the immediately preceding paragraphs. The determination to adjudicate issues concerning the sufficiency of the DEIS must be made in accordance with the provisions of 6 NYCRR 624.4(c)(1), as described in the following paragraphs.
In order for an issue to be adjudicated, the issue must relate to a dispute between the Department Staff and the applicant over a substantial term or condition of the draft permit; relate to a matter cited by the Department Staff as a basis to deny the permit and is contested by the Applicant; or it is an issue proposed by a potential party and which is both 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 the project, such that a reasonable person would require further inquiry.
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) specifically provides that in situations where the Department Staff has reviewed an application and findsthe Applicant's project as proposed or as conditioned by a draft permit conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to the Project to demonstrate that the issue is both substantive and significant. Such is the case in the instant matter, with the Department Staff having determined that there are no statutory or regulatory prohibitions or restrictions which would preclude the issuance of the requested permits and that appropriate SEQRA findings could be made. It is the intervenors' burden to demonstrate that the issues they are raising warrant adjudication.
In the instant case, the task is to determine if the Applicant's proposal to operate a hard rock quarry does indeed meet theapplicable statutory and regulatory standards for permit issuance. Through their offers of proof, the intervenors have raised certain substantive and significant factual questions regarding the Applicant's assessment of several of the potential impacts of the Project, thus warranting a further examination.
Rulings on Proposed Issues
Visual Impacts and Cultural Resources
- Visual Impact
One of the most contentious issues raised in this matter concerns the proposed Project's impacts on visual and cultural resources. Scenery and visual resources are important to the people of the Town of Amenia, with the Town's Master Plan devoting an entire section to "scenic resources". In fact, the Project's potential impact on visual resources was the principal issue raised by the Town. The Town, in recognizing the value of scenic resources in defining the character of the community, seeks to have the Applicant's analysis of visual impacts expanded beyond the conclusory statements and cursory treatment in the DEIS (approximately 3 pages of narrative, Section 4.6.7). The OVA joins the Town in raising the visual impact issue.
In the area of the "North Quarry", the proposed Project would remove significant elevation from a prominent ridge which rises to the west of the South Amenia Presbyterian Church. In the area of the "South Quarry", quarrying would reduce the height of a hill south of Dutchess County Route 3. The Town retained David C. Young, ASLA, owner and manager of Young Associates, a landscape architectural consulting business, to critique the DEIS, its methodologies and conclusions, regarding visual impact analysis. The OVA retained consultants whose experience includes visual and neighborhood character analysis and architectural history to critique the Applicant's visual analysis.
On June 24, 1996, the Department Staff sent the Applicant a comment memorandum requesting an inventory of aesthetic resources of statewide significance within a three mile radius of the site and expressing several additional concerns regarding visual analysis in the DEIS. The Applicant provided additional information in a July 17, 1996 letter. To some extent, the Applicant's response amplifies the DEIS, with identification of a variety of aesthetic resources within a three mile radius of the site, rather than the one mile radius used in the DEIS. However, beyond the listing provided in this letter, there is no analysis provided of the Project's impacts on visual resources beyond the DEIS one mile radius viewshed. The Applicant's visual impact analysis, even with this additional information, is cursory and is not representative of the "hard look" required by SEQRA. I conclude that a comprehensive analysis of the visual impacts within an expanded three mile radius viewshed is appropriate for consideration in this matter.
The Applicant has taken the position that, "Assessment of visual impacts is very subjective and nearly impossible to quantify." However, as is clearly stated in the Town's petition and the appended Young Associates report, "There are well documented processes and professional standards available to describe potential visual impacts. These processes are designed to describe visual resources, and to quantify visual impacts." In its filing, the Town presents, in considerable detail, the methodologies available for accomplishing such a quantification and visual impact analysis.
The Applicant has proposed mitigation of the Project's visual impacts by sequential reclamation of the mined benches as quarrying operations move to a lower level in the North Quarry and orientation of the active quarrying faces in the South Quarry. The Applicant developed computer generated graphical representations of how the mine site will appear from various vantage points at different stages of mining. These three-dimensional renderings present presumably accurate representations of the cuts and benches which may eventually be viewed on the site. However, they do not provide the reader with a realistic impression of how the mine will look from various points within the viewshed. An accepted method of simulating the visual impacts of a project is to provide a series of "before" color photographs taken from the selected vantage points in the viewshed and then superimpose on those photographs computer generated views of the site at various stages of mining for "after" impressions of the Project's visual impacts. By so doing, additional impacts might be revealed and/or further mitigation techniques might be identified. This approach has been effectively used in analyzing the visual impacts of other similar projects before the Department and is endorsed by other State agencies, as well.
I also note that the Department Staff suggested the Applicant employ a different rating scale for determining "visual magnitude". In its July 17, 1996 response, the Applicant declined to do so. Additionally, the Staff has suggested that, "any questions raised concerning the visual analysis will have to be addressed by the applicant in the FEIS." However, the additional information necessary to resolve such questions must be developed and considered prior to the finalization of the environmental impact statement.
With respect to the visual impacts of the proposed Project, a potential adjudicable issue is raised. In the instant case, where the Applicant has acknowledged the Project will have a significant adverse visual impact, the appropriate consideration of visual impacts to the vicinity's scenic resources is central to the evaluation of the Project's overall impact on community character in the Town of Amenia. The information provided by the Town and the OVA clearly identify shortcomings in the Applicant's visual impact analysis which must be addressed further before any Decision can be issued for this Project. Depending on the results of a supplementary analysis of the visual impacts of the Project, there may be cause for adjudication of this issue.
- Potential Impact on Cultural Resources
The OVA seeks to adjudicate the potential impacts of the Project on a variety of historic and cultural resources in the community. Most of these resources, predominately buildings of historic and/or architectural significance, have been previously cataloged by Dutchess County and were itemized in the DEIS, Appendix V, Cultural Resources. The OVA also seeks to further evaluate a proposed draft permit condition requiring the Applicant to avoid a prehistoric site at the South Quarry location.
The Department Staff sought the assistance of the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") early on in the evaluation of potential impacts of the proposed Project on historic and cultural resources on or in the vicinity of the Project site. OPRHP, through its review of information provided by the Applicant, initially indicated an interest in a four acre area which may have been a prehistoric hunting camp located in the northwestern portion of the proposed South Quarry. In response to concerns expressed regarding this area, the Applicant modified the proposed mining plan to avoid any disturbance to this identified sensitive archaeological site.
OPRHP also expressed interest in the Wassaic Historic District, an area with an architecturally significant assemblage of historic structures. OPRHP reviewed information regarding the potential eligibility for these buildings to be included in the National or State Register of Historic Places.
On September 26, 1996, OPRHP sent a letter to the Department Staff stating that it was satisfied by the Applicant's proposal to avoid and protect the archaeological site in the South Quarry area, and further, that based on its review, it is OPRHP's opinion that the proposed Project will have no adverse impact upon properties in or eligible for inclusion in the State and National Registers of Historic Places.
There are no adjudicable issues raised regarding the proposed Project's impacts on historic and cultural resources. The Applicant has taken measures to avoid an archaeologically sensitive site; the Department Staff requires such avoidance in a draft permit condition. The concerns raised regarding historic buildings do not rise to the level requiring adjudication.
- Land Use and Zoning
As noted in the Motion section above, the OVA raised issues concerning the compliance of the proposed Project with the existing Town of Amenia zoning. The Town has joined in raising this issue. Also, as noted previously, the Applicant has submitted to the Town of Amenia a rezoning application for the 89 acre mine site. In this regard, both Intervenors seek to have the DEIS revised or supplemented to precisely delineate the impacts which rezoning will have on the remaining acreage which is now not proposed for rezoning. However, as the OVA correctly acknowledges, all actions regarding the rezoning application are the responsibility of the Town of Amenia. As an involved agency in the SEQRA coordinated review process, the Town does not relinquish its powers of inquiry and review to determine the impacts of projects which bear upon the Town's own laws and ordinances.
The environmental impacts identified in the DEIS relate to the Applicant's original proposal to rezone the entire 470 acre site. To the extent the impacts are different if 89 acres are rezoned and the remaining 381 acres remains in their current zoning classification, the Town may independently make its own inquiry of the Applicant for additional information and then proceed with the responsibilities of an involved agency in the SEQRA process as outlined in the Motion section above.
With respect to the OVA allegations that the Town of Amenia Planning Board would become a new agency involved in the rezoning/subdivision controversy, the Town Board, the Town Planning Board and the Town Zoning Board (of Appeals) were advised of the proposed Project by the Department Staff lead agency coordination request letter of July 7, 1989. The Town Planning Board was among the first to comment on the Project on August 4, 1989 and has maintained communications with the Department Staff regarding the Project, with its latest comments provided via the Town Board in March and May of 1996. Therefore, the Town Planning Board is not a new involved agency.
No adjudicable issue is raised regarding the adequacy of the DEIS with respect to the Applicant's current rezoning request to the Town of Amenia. It is the Town's responsibility to ensure the DEIS addresses all relevant issues concerning its Zoning Law and Master Plan.
The OVA has raised an issue regarding traffic impacts of the proposed Project, alleging that the traffic data in the DEIS is stale and that the proper baseline in evaluating traffic impacts is a "no mine" situation, i.e. - at some future point in time when the sand and gravel resources on the site are exhausted and the AS&G trucks would no longer contribute to the traffic pattern between South Amenia and Leedsville. Additionally, the DEIS was accepted as complete some six years after the traffic studies and analysis were conducted. The OVA stated that traffic counts more than three years old are generally considered invalid and unreliable.
In this instance, the agency with jurisdiction over the roads proposed as a route for the AS&G trucks from the quarry site in South Amenia to the primary processing facility at the AS&G Leedsville plant, i.e. - Dutchess County Routes 2 and 3, is the Dutchess County Department of Public Works ("DCDPW"). The DCDPW was advised of the proposed Project by the Department Staff lead agency coordination request letter of July 7, 1989.
On January 26, 1990, Joseph W. Grogan, P.E., Director of Engineering for the DCDPW, submitted comments to the Department Staff, expressing a concern regarding the condition of the County roads adjacent to the proposed quarry and the area bridges. Specifically, Mr. Grogan highlighted the weight restrictions on Bridge No. A-9 near Leedsville, Bridge No. A-23 in South Amenia and Bridge No. A-31 on County Route 3 adjacent to NYS Route 22. He also expressed the opinion at that time that County Routes 2, 3, 4 and 105 are incapable of surviving sustained use by overweight vehicles (emphasis added). He sought to have these considerations fully explored in the DEIS.
While the DEIS concentrates on highway capacity issues, i.e. - the ability of the roadways to carry a given volume of traffic, the DEIS is silent on the DCDPW concerns raised in 1990 regarding weight limitations of the bridges and county roads. The AS&G trucks (and many others) currently utilize the proposed haul route from South Amenia to Leedsville. If the weight of these vehicles on the County roads was an issue for the DCDPW, various actions regarding this issue would presumably have been taken by the County by now. Whether the DCDPW's concerns over impacts to the roadways extend to heavy vehicles which are within the applicable weight limitations are unknown. The Department Staff stated at the issues conference that they did contact the DCDPW and received no comments, indicating the County had no concerns. However, since the vehicle weight issue was raised early on by the DCDPW and has not been addressed in the DEIS, and since the proposed Project would continue the present highway usage by AS&G vehicles for the foreseeable future and beyond, it is appropriate to get a clarification from the DCDPW regarding its concerns and, if necessary, to then further address this issue.
The data for the traffic study relied upon by the Applicant was collected seven years ago. That data led to conclusions in the DEIS that level of service "A" on the proposed haul route would not change from the time the data was collected through the implementation of the Project. However, as has been pointed out, a variety of social and development changes have occurred in eastern Dutchess County in the past seven years. The traffic data and analysis should be updated to reflect the present conditions.
With respect to the issue of the use of the "correct" baseline data, the Department's November 1992 The SEQR Handbook, on page 63, instructs as follows, "The EIS must describe the existing environment, any existing uses of the project site and affected adjacent areas." The Applicant has used as a baseline for its DEIS the present sand and gravel mining operation in South Amenia. Despite arguments of the OVA to the contrary, the circumstances regarding the existing operations on the site and the current environmental impacts are correctly set forth as the environmental setting against which future environmental impacts should be weighed. Thus traffic impacts of the proposed Project should properly be compared with the traffic impacts which currently exist.
Presently there are no issues regarding traffic which rise to the level which would require adjudication. However, the data in the DEIS regarding traffic counts and the subsequent analysis should be supplemented with up-to-date information. Additionally, the Applicant should specifically address with the DCDPW the issues which were raised by that agency in 1990. Furthermore, since the DCDPW is an involved agency with jurisdiction over the roads to be used by the Applicant in this proposed Project, it is appropriate for the DCDPW to provide its current input to the SEQRA process, if only by a letter to the Department Staff indicating its level of concern or lack thereof, particularly with respect to the vehicle weight issue. Depending on the development of further information regarding traffic issues and any potential future draft permit conditions which might be proposed, e.g. - concerning loading of trucks, routing, etc., it is possible that traffic concerns could be revisited as a potentially adjudicable issue.
The noise issue raised by the OVA is wholly predicated on the basis of the Applicant using the incorrect baseline data, i.e. - using the current sand and gravel mining operations as the baseline. The OVA does not take issue with the methodology or the information generated by the Applicant's analysis, only that it is based on the wrong baseline assumptions, and thus needs to be redone for the "no mine" scenario.
As discussed the Traffic Section above, the Applicant's data base regarding its present sand and gravel mining operation represents the proper basis for comparison with projected future environmental impacts.
There is no adjudicable issue raised regarding the proposed Project's noise impacts.
- Air Quality/Dust
The OVA has raised a variety of issues regarding the Applicant's analysis of the proposed Project's environmental impacts regarding dust generation and deposition and air quality in general. These potentially adjudicable issues include: omission of most recent available data; failure to reference applicable standards; failure to model deposition of particulate matter in the area surrounding the quarry, including in the adjacent Webatuck Creek; failure to utilize appropriate receptors for analysis of air quality impacts; predicted exceedances of ambient particulate concentrations; impacts on persons with respiratory difficulties; and lack of any air quality information regarding the Applicant's Leedsville processing facility.
Much of the criticism of the Applicant's analysis of air quality impacts stems from the age of the report upon which the analysis is based, i.e. - a study done by Brian W. Doyle Engineering, P.C. dated August 21, 1990, Appendix VIII to the DEIS. The Project's projected air pollutant concentrations were derived with input from emission factors for processing equipment published in a U.S. Environmental Protection Agency ("EPA") document, Compilation of Air Pollutant Emission Factors, Volume I: Stationary Point and Area Sources, commonly referred to as AP-42. The Applicant's study utilized the AP-42, Fourth Edition - September 1985 and Supplement B - September 1988, the most up-to-date and appropriate documents to use in 1990. However, in January 1995, EPA released the Fifth Edition of AP-42, including Section 11.19.2, entitled "Crushed Stone Processing". AP-42, Fifth Edition is now accepted as the most appropriate source for emission factors which EPA considers to be representative of atmospheric emissions for the activities described.
Alternatively, if site and equipment specific data on emission rates are available for the processing equipment which the Applicant is proposing to use, such known emission factors are preferable to the AP-42 data. In any respect, given the time lapse between the Applicant's original air quality study and the date the DEIS was accepted as complete enough to commence formal review, it is now appropriate, prior to determining the adjudicability of the air quality issue, to revise the air quality impact analysis with the most recent available emission data or estimates, either from equipment manufacturers for specific pieces of equipment or from AP-42, Fifth Edition, respectively.
Likewise, just as there has been a revision of AP-42, presently there are revised methodologies available for modeling air emissions to determine potential impacts on ambient air quality. One of those revised methods, which has been used to estimate the air quality impacts of other hard rock mining projects in New York State, is the September 1995 EPA "Industrial Source Complex Short Term model, Version 3", known as ISC-3. Use of ISC-3 is now the state-of-the-art method of modeling the dispersion of emissions from multiple sources, including crushers, screens, trucks, loaders, etc., within an area where mining is occurring. This model bases its predictions on input data of emission rates, topography, site configuration and meteorology and is capable of estimating particle concentrations resulting from mining and quarrying operations. The concentrations are estimated by computations at a series of points around the mine, i.e. - receptors, to determine where the worst case conditions occur. The computed worst case conditions are then compared to established standards, e.g. - the National Ambient Air Quality Standards ("NAAQS") and the New York State Air Quality Standards for Particulates in 6 NYCRR Subpart 257-3, to determine if the levels are acceptable. This type of air quality analysis was not completed for the proposed Project.
The air pollutants of primary concern from a quarrying operation and initial processing of the rock such as proposed by the Applicant are total suspended particulates, TSP, and particulate matter less than ten micrometers in aerodynamic diameter, PM10. (A micrometer is a unit of measurement equal to one millionth of a meter, is also known as a micron and is abbreviated by the Greek letter "mu" or .) The PM10 category is a subcategory of TSP and is distinguished from TSP by including smaller particles which are a greater health risk. New York State has ambient air quality standards for TSP and also settleable particulates ("dustfall"), while the federal EPA, under the Clean Air Act, has established National Ambient Air Quality Standards ("NAAQS") for inhalable particulates, PM10.
The Applicant's air quality report focuses on "dust" as the primary air pollutant to be emitted from the proposed quarrying operation. The Applicant does not differentiate between suspended and settleable particulates, but rather lumps all particulate emissions as "dust". The State standards for both total suspended particulates, TSP, and settleable particulates, dustfall, are applicable to the Project's air emissions.
Nowhere in the Applicant's air quality report nor in the DEIS is there any mention of the federal EPA NAAQS for PM10. The particle size of less than ten microns is representative of the types of particles which will be suspended in air and may be inhalable. The NAAQS for PM10 are applicable to the proposed Project. The Department Staff, using the Department's Air Guide 1, calculated that the Project's PM10 emissions would not cause an exceedance of the NAAQS.
Indeed, it may ultimately be the case that the air quality impacts of the proposed Project are confirmed to be less than the applicable standards. However, until the appropriate modeling is accomplished with the approved state-of-the-art techniques, the information provided in the DEIS regarding the air quality impacts of the Project is outmoded and deficient, and does not provide an adequate basis upon which to judge the potential air quality impacts of the proposed Project.
With respect to the lack of any air quality data for the AS&G Leedsville processing plant, that facility is permitted separately under a series of DEC permits and cannot legitimately be considered as a part of the proposed Project. The Applicant has stated that the operations at the Leedsville facility are not anticipated to change in the future, either with or without the instant Project. If the operations there are altered, they are subject to modifications of the permits applicable to that facility.
The DEIS is deficient with respect to its analysis of air quality impacts from the proposed Project. Until the DEIS is supplemented with analyses of the type described above, it is premature to determine if the issue of air quality should be adjudicated. If, upon further analysis, the proposed Project is predicted to exceed any of the applicable air quality standards, the potential for adjudicating the air quality issue may be revisited.
- Water/Hydrogeology/Webatuck Creek
The OVA has alleged that the Applicant's proposed detention ponds are designed to handle only a 25 year flood, and that there is no analysis of a 100 year stormwater event. The OVA also charges that the DEIS is devoid of any acceptable supporting data or engineering details with which to review the Project's ability to adequately protect the Webatuck Creek and the wetland areas along the Creek. The OVA claims there is no analysis of settling and infiltration rates in the detention ponds, pollutant loadings and siltation in Webatuck Creek, thermal impacts to the Creek, groundwater contamination from rock flour percolating into the quarry floor and stormwater runoff. Again, the OVA cites a lack of information regarding water quality of the Applicant's Leedsville facility.
Webatuck Creek in its proximity to the proposed Project site is classified as C(t), supporting trout, and the attendant recreational opportunities. The Creek currently receives direct runoff from overland flow in the area of the central portion of the North Quarry. In all other areas of the site, surface water flowing toward the Creek is intercepted by the sand and gravel outwash materials on the west side of the Creek, then infiltrates and recharges the valley gravel aquifer. Any precipitation which infiltrates the cracks and crevices of the rock outcroppings on the site gradually works it way downward through the bedrock aquifer to eventually join the gravel aquifer along the banks of the Creek valley. Groundwater in the valley gravel aquifer either migrates down gradient within the sand and gravel deposits through the valley or discharges to the Creek.
Freshwater wetland AM-22 is located along both banks of the Creek, where the Creek meanders closest, within 150 - 200 feet, of the North Quarry. This is a Class II wetland which means the wetland is ranked second highest in the State's freshwater wetlands classification system in its ability to perform wetland functions and provide wetland benefits. Because of its proximity to the proposed quarrying operations, the Applicant's activities in this area have the potential for causing adverse impacts to the wetland's functions and benefits. Approximately 800 feet southwest of the South Quarry is situated freshwater wetland AM-23. Wetland AM-23 is not located near any proposed quarrying activities, and the potential for the project to cause impacts to the wetland's functions and benefits is remote.
The Applicant's stormwater management plan proposes to retain onsite in a series of ponds all stormwater runoff from the quarry areas, work areas and haul roads. In the North Quarry area, these ponds consist of sedimentation ponds and infiltration ponds constructed in series, first in the northern portion of the North Quarry and then in the southern portion of the North Quarry. The sedimentation ponds will allow settling out of suspended particles in the storm water, and then, the separate infiltration ponds will provide an opportunity for the storm water to percolate downward into the gravel valley aquifer adjacent to the Webatuck Creek. The ponds would be regularly maintained, with sediments removed, so that particularly in the case of the infiltration ponds, the pond bottoms would not silt over and inhibit the planned recharge of the groundwater regime. At the times when the quarrying facilities are operating, the Applicant plans to use water from these ponds as its process water, i.e. - for dust control, spraying the haul roads, stockpiles and processing equipment. No washing of aggregate is proposed on the site as part of the Project. The proposed ponds are set back from the Creek and segregated from the Creek banks by berms for the northerly ponds and a new haul road to be constructed a minimum of 200 feet west of the Creek for the southerly ponds in the North Quarry area. There are to be no discharges to the Creek from these ponds.
In the area of the South Quarry, a 25 acre pond with 15 feet of freeboard and no outlet is to be constructed as part of the reclamation plan for the existing sand and gravel operation. The Applicant proposes to use this pond as a large stormwater retention basin for runoff in the South Quarry area. There will be no discharge from this pond, with the water entering it evaporating and infiltrating the aquifer or being used for process water/dust control.
The Applicant did not provide detailed design plans for these stormwater control facilities, but stated that they would be designed to contain all runoff from a 100 year rainfall event. The applicant used an accepted method for calculating the volumes of runoff to be handled by its proposed stormwater facilities, i.e. - the Soil Conservation Service ("SCS") Urban Hydrology for Small Watersheds; Technical Release 55, commonly referred as TR-55. Supporting documentation for the calculations was included at the end of DEIS Appendix IX. These calculations were done in 1990, but remain valid today. A more recent computerized version of calculating runoff volumes is the Natural Resource Conservation Service (formerly SCS) TR-20. However, the results of either TR-55 or TR-20 should be comparable. The OVA has not taken issue with the methodology used by the Applicant in calculating runoff volumes.
Since there are no point discharges to Webatuck Creek anticipated from construction and operation of the proposed Project, there will be no opportunities for siltation or thermal impacts to the Creek from the Project. Also, since there is to be no discharge of stormwater from the site, the Applicant does not need a General Stormwater SPDES Permit for Industrial Activity.
With respect to the OVA's suggestion that rock flour will infiltrate the bedrock floor of the quarry area and/or percolate through the bottoms of the sedimentation and infiltration ponds to contaminate the groundwater, there is little likelihood of such infiltration through the quarry floor. Infiltration through the type of bedrock found at the South Amenia site is extremely low, which will result in nearly all the precipitation falling on the site running off to the stormwater control ponds. Even if the fine rock flour were to infiltrate the bottoms of the ponds, the sand and gravel aquifer materials, acting as a filter medium, would effectively remove the fines.
I have noted that on the maps accompanying the DEIS there are several houses shown to be in relatively close proximity to the proposed Project site. The DEIS in Section 3.6.4 states, "homes on Benson Road draw water from the schist." Since the schist is one of the materials proposed to be quarried, it is reasonable to inquire what impacts, if any, the quarrying operations will have on the residential well water supplies for these homes.
With respect to any deposition of particulate material on or in the Webatuck Creek or the freshwater wetlands area to impair the benefits and functions which these natural features provide, noreal estimate of any such impacts can be made until the air quality analyses noted above are completed.
One additional matter which has not been definitively addressed is the issue regarding the five acre threshold for requirement of General Stormwater SPDES Permit for Construction Activity. There have been various suppositions placed in the record before me regarding the size of the disturbed industrial areas on the site, exclusive of the mined areas, but to date no one has precisely planimetered those areas to determine the actual acreage. If the acreage exceeds five acres in total, the Applicant must apply for the General SPDES Construction permit.
It is not appropriate to consider any water-related issues concerning the Leedsville facility in the review of the instant application.
Presently no adjudicable issues are raised regarding water, hydrogeology, the Webatuck Creek and the wetlands areas near the site. Depending on the Applicant's responses and analyses regarding potential impacts on nearby residential well water supplies, the air quality impacts for particulate deposition on Webatuck Creek and the wetlands and a precise calculation of the acreage of the disturbed industrial areas on the site, the water-related issue could be revisited as a potentially adjudicable issue.
- Biology/Endangered/Threatened Species
The OVA noted that the Timber Rattlesnake and the Bog Turtle have been reported to exist in close proximity to the site. Ms. Cafiero joined in stating that a Bog Turtle had been photographed and identified on her property in the fall of 1996. These Intervenors allege that the DEIS is deficient in its analysis of the impacts the Project might cause to these two endangered/threatened species.
The Bog Turtle, Clemmys muhlenbergi, is listed as an endangered species in New York in 6 NYCRR 182.6(a), while the Timber Rattlesnake, Crotalus horridus, is listed as a threatened species in New York in 6 NYCRR 182.6(b).
As part of the DEIS, the Applicant conducted surveys of the site habitat to determine if the areas to be disturbed by the proposed Project were suitable for either of these animals. None of the site areas to be disturbed was found to be suitable habitat for the Bog Turtle. The site is not considered as a particularly good one for rattlesnakes.
The Department Staff also evaluated the site for potential impacts to these species. With respect to the Bog Turtle, the Staff speculated that Ms. Cafiero's Bog Turtle may have been a transient, since the location where she found the turtle was poor Bog Turtle habitat. The Bog Turtle was located over 1,000 feet from the quarry site and on the opposite side of the ridge to be disturbed. Separating the two locations further is a small ravine and another ridge. The Department Staff and a volunteer turtle expert searched the area identified by Ms. Cafiero and found no evidence of Bog Turtles. The Staff position is that there is no Bog Turtle population on the site of the proposed Project, and further, that the Project will have no impact on the Bog Turtle.
The Staff's position regarding the Timber Rattlesnake is that the nearest confirmed den site is approximately 1.5 miles from the proposed quarry site. Furthermore, the Project site is not particularly good habitat for rattlesnakes. The Staff does not rule out the possibility that transient rattlesnakes could use the Project site on occasion, and in that regard, the Staff proposed a draft permit condition which requires the Applicant, upon the discovery of a rattlesnake on the site, to contact the Staff immediately, in order that a safe removal of the animal can be effected.
There are no adjudicable issues raised regarding potential impacts to endangered/threatened species of wildlife on or near the proposed Project site.
- Economics/Reduction in Property Values
The OVA seeks to consider the adverse effects of the proposed Project on real property values in the vicinity of the site. The OVA contends that the Applicant has touted the beneficial economic impact which the continued mining at the site will bring to the Town of Amenia community at large, and that the Applicant contends these benefits will outweigh any adverse environmental impacts which cannot be mitigated. The OVA states it is appropriate under those circumstances to weigh the adverse economic impacts of the Project.
This agency has consistently held that a project's impacts on real property values is not a matter to be adjudicated at a DEC hearing. Local governments, through their ability to regulate land uses by zoning, are the proper agencies to deal with impacts to real estate values and consequent impacts to a community's tax base. Here, the Town of Amenia has in effect a Master Plan and a Zoning Law which have expressly set forth the Town's intentions regarding residential development, business, industrial and recreational uses of property within its boundaries.
As a matter of home rule, it is the Town's prerogative and responsibility to ensure compliance with its own laws. It would be inappropriate for the State Department of Environmental Conservation to attempt to usurp such powers from the Town. Even in instances where the DEC approves projects, such approvals are only indications that the proposals meet the requisite State standards to receive a permit. All DEC permits are conditioned on the basis that an applicant must comply with any and all other applicable laws and regulations, and that a DEC approval does not absolve an applicant from making proper application and receiving whatever other approvals are applicable, whether at the federal or local government levels.
The only considerations given to economic impacts in relation to the balancing required by SEQRA have been to consider beneficial economic impacts which may offset adverse environmental impacts which cannot be fully mitigated or avoided. Adverse economic impacts fit into this equation only to refute an applicant's allegations of economic benefits to offset unmitigatable environmental harm.
In the instant case, being still in the review stage, with the above paragraphs clearly indicating that the Applicant must provide additional information before any determination may be made regarding mitigatable or unmitigatable impacts, it is premature to entertain any consideration of economic impacts which might result from the proposed Project.
At the present time, no adjudicable issue has been raised regarding adverse economic impacts on real property values which might result from the proposed Project. If it is determined at some future date that there are significant adverse environmental impacts attributable to the Project which cannot be mitigated, it may be appropriate to revisit this issue to counter the Applicant's claims of beneficial economic impacts for the Town of Amenia and surrounding area.
- Leedsville Plant and Processing Facility
As noted in a number of previous Sections of these Rulings, the OVA has alleged that the AS&G Leedsville processing plant and facility is a pre-existing, non-conforming use in terms of the Town of Amenia Zoning Law. The OVA claims further that the Leedsville facility is integrally linked to the proposed quarrying operation in South Amenia, and therefore, the environmental impacts of the Leedsville facility must be analyzed to the same degree as those of the South Amenia quarry proposal.
As also stated several times above, the Department of Environmental Conservation is not concerned, nor should it be, with the status of the Leedsville facility in relation to the Town of Amenia Zoning Law. The Leedsville facility has operated as a separate and distinct facility from the current mining operation in South Amenia for many years, and is permitted by the Department under a series of permits. There is an obvious connection between the two operations, because mined material from South Amenia is transported to Leedsville to undergo processing into various sized aggregates. However, materials from other locations are also brought to Leedsville for processing. Indeed, the Applicant has clearly stated that continued operation of the Leedsville facility is not dependent upon approval of the instant application for quarrying in South Amenia.
If and when operations at the Leedsville facility change, those changes are potentially subject to a separate SEQRA review and a subsequent modification of the existing permits, or perhaps even new permits. The Leedsville operations are not subject to the extensive SEQRA review sought by the OVA in connection with the present application.
There is no adjudicable issue raised regarding the Applicant's operations at its Leedsville plant and processing facility.
Ruling on Party Status
Pursuant to 6 NYCRR 624.5(a), the Applicant and the assigned Department Staff are automatically full parties to the proceeding. The OVA, Mr. Reese, the Cafiero's and Ms. Quinn have applied for full party status to participate in any adjudicatory hearing which may be held in this matter. Making it clear that the potential cost of full participation in any adjudicatory hearing was a significant factor in its determination, the Town of Amenia applied for amicus status.
Pursuant to 6 NYCRR 624.5(d), the ALJ's ruling on entitlement to full party status will be based on: (i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs 624.5(b)(1) and (2); (ii) 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 (iii) a demonstration of adequate environmental interest. The ALJ's ruling on entitlement to amicus status must be based upon: (i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs 624.5(b)(1) and (3); (ii) a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and (iii) a finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.
In conjunction with the above rulings, I am granting full party status for any future adjudicatory hearing to the Oblong Valley Association.
While recognizing the Town of Amenia's fiscal constraints, I am mindful of the importance of visual impacts of the proposed Project to the Town. Therefore, I am granting the Town its requested amicus status in any adjudicatory hearing which may be held in this matter. However, specifically with respect to the visual impact issue, I am also granting the Town limited full party status. This will allow the Town, at its discretion, to appear and participate, present relevant evidence, cross-examine witnesses, initiate motions, submit briefs and exercise all the other rights of a full party, although only with respect to the visual impact issue.
While Mr. Reese demonstrated an adequate interest in the instant matter, he gave no indication of what his participation would be in any adjudicatory hearing, nor how his participation would assist in developing the record upon which the Commissioner must rely in making a Decision in this case. Furthermore, Mr. Reese presented no grounds for opposition or support for the proposed Project. Therefore, Mr. Reese's application for full party status in this matter is denied.
The Cafiero's, as nearby neighbors of the proposed Project, have expressed an adequate interest in this case. However, the Cafiero's proposed participation as full parties relies on anecdotal information and is based on speculation regarding potential impacts primarily relating to the noise and wildlife/endangered species issues, both of which have been ruled as not adjudicable. Therefore, Mr. and Mrs. Cafiero's application for full party status in this matter is denied.
Ms. Quinn has based her request for full party status in the instant matter on her support for the Applicant and its beneficial economic impact in the area, and her firm commitment to insure the availability of local and economical sources of aggregate for use in highway and building construction in the greater Dutchess County-Western Connecticut area. However, Ms. Quinn did not indicate at all what sort of participation she would undertake in any adjudicatory hearing, nor demonstrate how her participation as a full party would assist in developing the record upon which the Commissioner will have to rely in making a Decision in this case. There fore, Ms. Quinn's application for full party status in this matter is denied.
Further Information and Analysis Required
The principal function of an adjudicatory hearing is to resolve disputed issues of fact. The above rulings on proposed issues have identified several potential disputed issues of fact. However, as noted for each of these issues, it is premature at this point to order an adjudicatory hearing.
This case is unusual in that information in the DEIS regarding these issues is either outdated or insufficient to determine the necessity for adjudication. To some extent this is the result of the age of the bulk of the information and analysis in the DEIS, dating back to at least 1990. I am, therefore, directing the Applicant to provide the supplemental information sought for the respective issues identified above. The supplemental information and analyses should be compiled by issue area in a report which shall be considered as an addendum to the DEIS.
Upon receipt and evaluation of such supplemental information, it may then be appropriate to order an adjudicatory hearing to consider those aspects of the Applicant's proposal for which disputed issues of fact remain. The scope of any such hearing will be strictly limited to those portions of the issues which remain in dispute.
Timing of the review of the supplemental information will depend largely on the Applicant's ability to respond to the identified issues. Therefore, upon the distribution of the requested supplemental information to the parties identified above, i.e. - the Applicant, Department Staff, Town of Amenia and Oblong Valley Association, and to the ALJ, I will establish a timetable for review of the material and for a supplemental briefing period for the parties, to be followed by a supplemental ruling on the need for an adjudicatory hearing.
Pursuant to 6 NYCRR 624.6(e) and 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within ten days of receipt of the Rulings. At the Applicant's request, I am extending the time period for appeals and responses.
Any appeals must be received at the office of Acting Commissioner John P. Cahill (NYSDEC, Room 608, 50 Wolf Road, Albany, New York 12233-1010) no later than the close of business on July 21, 1997. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than the close of business on August 11, 1997.
The appeals and responses sent to the Commissioner's Office must include an original and two copies. Additionally, one copy of all appeal and reply papers must be sent to me and to all others on the enclosed Service List at the same time and in the same manner as to the Commissioner. Please note that transmission of appeal and reply papers by facsimile (fax) is not authorized.
For the New York State Department
of Environmental Conservation
By: ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE
Dated: Albany, New York
June 16, 1997
To: Service List (enclosed)