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Amenia Sand and Gravel, Inc. - Ruling 3, August 10, 2000

Ruling 3, August 10, 2000

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")

SUPPLEMENTAL RULINGS

OF THE

ADMINISTRATIVE LAW JUDGE

ON ISSUES

DEC Project No.

3-1320-00030/2

Background

Amenia Sand and Gravel Inc. (the "Applicant" or "AS&G") has applied to the New York State Department of Environmental Conservation (the "DEC" or "Staff") 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.

A portion of 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. Operations on the site of the proposed quarry would include blasting and initial crushing of the excavated rock. The rock would then be transported by truck 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.

Following an issues conference on October 9 and 24, 1996 and subsequent written submissions, I issued my Rulings on Party Status and Issues on June 16, 1997. Following an appeal by the Oblong Valley Association ("OVA"), in an August 27, 1997 Interim Decision, then Deputy Commissioner David Sterman affirmed my Rulings, specifically noting that I had called for supplementation of the record of the issues conference regarding several issues related to the proposed Project for which the existing information was either outdated or insufficient to determine the necessity for adjudication.

Segmentation

6 NYCRR §617.2(ag) "Segmentation means the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance."

6 NYCRR §617.3(g)(1) "Considering only a part or segment of an action is contrary to the intent of SEQR."

In its submissions, the OVA has repeatedly alleged that the Applicant has submitted to the Department incremental portions of an overall plan to ultimately mine/quarry all of its holdings in the area of the site of the instant proposal, thereby engaging in the segmentation of what is, in essence, a single overall project into several various projects, contrary to the State Environmental Quality Review Act, ECL Article 8 and 6 NYCRR Part 617.

The Department Staff, on June 3, 1999, also expressed the concern that with at least two pending mining applications for apparently overlapping projects involving essentially the same or nearby lands, together with an existing mining permit, the Applicant may be segmenting the projects to avoid the comprehensive scrutiny and cumulative impact analysis review required by SEQRA. However, other than providing the service list with a procedural update on the status of the pending new application for sand and gravel mining on an additional 13 acres contiguous to the existing sand and gravel mine, noting that the application is the subject of two outstanding Notices of Incomplete Application and list of additional information required from the Applicant, the Staff has not elaborated on the potential segmentation issue in their submissions for this Supplemental Ruling.

These concerns are at least partially resolved by the affidavit of John A. Segalla, President of Amenia Sand & Gravel, Inc., submitted by the Applicant in its response papers in December 1999. Mr. Segalla makes clear in his affidavit that the application pending before the Department's Region 3 Staff to mine additional sand and gravel resources from "Bank E" in South Amenia is a stop-gap measure, only to ensure that the firm has the mineral resources available to keep operating, pending a determination regarding the instant proposal for a hard rock quarry. If the instant application is approved and a permit is granted for the quarry, the Applicant would cease all sand and gravel mining on its South Amenia property upon commencement of quarrying operations. Under these circumstances, there would be no cumulative impacts from sand and gravel mining and hard rock quarrying occurring simultaneously.

The Department's "The SEQR Handbook," Chapter 2, Section D, Paragraph 4, suggests that: "Proposals should be considered one whole action if they cannot or will not proceed unless the other proposals or parts of proposals are implemented with them or are interdependent parts of a larger proposal and depend on the larger proposal as their justification or for their implementation." Noting that the "Bank E" application is not pending before me, based upon the limited information provided above, I conclude that while there are obviously some interrelationships between the existing sand and gravel mining operation, the pending quarry proposal and the new pending application to extend the sand and gravel mining operation, there is no interdependency of any one action on the others, i.e. - each proposal could stand alone. Therefore, it is my determination that there is no segmentation, as defined in the SEQRA regulations, involved in the independent review of the quarry proposal and the Applicant's new proposal to mine unconsolidated materials from an area south of Dutchess County Route 3.

It remains the responsibility of the Department's Region 3 Staff to continue processing the application for expansion of the sand and gravel mining operations.

Rulings on Potential Issues

These Supplemental Rulings on Issues consider the supplemental submissions received in July 1999 from the Applicant, along with the November/December 1999 comments of the Department Staff, the Dutchess County Commissioner of Public Works ("County"), the Town of Amenia ("Town") and the OVA concerning the issues remaining unresolved following the issues conference, i.e. - Visual Impacts, Traffic, Air Quality and Water Quality, as well as the late December 1999 responding submissions from the Applicant and OVA.

Visual Impacts

My June 16, 1997 ruling on visual impacts highlighted several shortcomings in the Applicant's initial visual impact analysis which had been identified by the Town and OVA intervenors. In response, the Applicant submitted for consideration a comprehensive Visual Impact Assessment ("VIA"), dated June 10, 1999, "to identify the resources in the vicinity of the site, determine the viewer groups likely to observe the potential impact, determine the potential visual impacts associated with the mining operations and to assess the effectiveness of the mitigation proposed to address the potential impacts."

The Applicant's VIA was prepared by Landscape Architectural Design Associates, P.C., a firm with many years of experience in assessing visual impacts, preparing environmental impact statements and providing site planning services in the area of New York State surrounding the proposed Project. The VIA describes how the assessment is based upon a variety of generally accepted study techniques and details how the viewshed analysis was developed. The VIA incorporates numerous suggestions which were previously submitted as criticisms of the original visual impact information provided in the DEIS and addresses many of the inadequacies of the previous information regarding the visual impacts of the proposed Project.

By combining factors regarding landscape components, use criteria and site specific features, and guidance drawn from established and accepted professional sources, the VIA presents a rationale for assessing the visual sensitivity of the proposed Project from selected locations within the viewshed. "Landscape Units" were defined by a combination of the factors of: Observer position, View composition, Site position in view and Site orientation. A numerical scoring system was developed for the various factors employed in the analysis and ultimately a score was calculated for each of the key selected views of the Project site. In order to rank in this system as having a high visual sensitivity, the view from any given location required a numerical score of 10 or higher; medium visual sensitivity scores ranged from 5 - 9; low visual sensitivity scores were less than 5.

The aggregate scores for the views selected as representative of the various "Landscape Units" surrounding the Project site all fell within the medium visual sensitivity category, with scores from 6 to 9. Landscape Unit "B", which includes the view of the North Quarry portion of the proposed Project from the Oblong Valley along Dutchess County Route 2 to the northwest of the site and which contains the highest number of users in an area from South Amenia to just south of Amenia Union, a designated scenic vista and the closest view of the site, was the highest ranking of the Landscape Units with a score of 9.

While the VIA determined that there are no scenic areas of statewide significance within the overall viewshed of the proposed Project, it did find that the scenic resources within the viewshed are of local importance. With regard to visual sensitivity, the VIA concludes, "Therefore, the project should be considered to have potential local significance and will require mitigation." The potential visual impacts to be mitigated are listed as:

North Quarry

  1. Loss of vegetation due to mining activities resulting in changes to the skyline, change in color on the hillside and exposure of existing rock face.
  2. Removal of overburden resulting in exposure of more rock face which causes a change in color and character of the hillside.
    • Quarrying will create an exposed man-made rock face which is different from the surrounding hillside.
    • Removal of rock and creation of benches will result in the reduction of the mass of the hillside.
    • The processing area will be visible from residential uses within ½ mile."

South Quarry

  1. Removal of vegetation will result in changes in the color and texture of the existing hillside.
  2. A rock face will be visible from the north where a hill exists currently."

In order to achieve the mitigation necessary to meet the requirements established in the VIA for lands of local importance, the VIA suggests that the original mitigation proposed in the DEIS is inadequate and recommends that a series of additional plantings, berms and barrier screens be established to create a dense vegetative screens around and in front of the quarried/excavated rock faces to return the visual characteristics of the site as close as possible to and relatively consistent with the existing conditions. These efforts would also seek to screen adjacent residential uses and minimize long term views of the man-made alterations to the terrain. The plantings are proposed to occur sequentially and concurrently, such that the higher benches are planted as quarrying progresses to lower elevations as previously described in the DEIS. It is noted that DEIS page 2-14 states, "Reclamation of a specific bench will begin upon completion of mining at that level." Therefore, in accordance with the planting schedule on page 48 of the VIA, reclamation planting would not begin at the upper most level of the North Quarry until 30 to 35 years after commencement of quarry operations, with planting at the South Quarry to begin some 25 to 40 years after the beginning of operations there.

The VIA concludes that, with the additional proposed mitigation measures, the visual impact of the proposed Project from various locations within the overall viewshed will be minimized to a degree consistent with the category defined in the document as lands of local importance.

The Town of Amenia's comments note that the proposed Project conflicts with the Town's Master Plan and will cause "irrevocable visual scarring of the bucolic Oblong Valley and the Town's visual landscape. . .". While the relationship of the Project site's zoning to the Town's Master Plan is outside the Department's jurisdiction and, therefore, not a matter for consideration in the instant proceeding, the Town's concern for the preservation of its scenic resources is the primary reason for my granting limited full party status to the Town on the issue of visual impacts. As it did during the earlier issues conference process, the Town hired David C. Young, principal of the landscape architecture consulting firm Young Associates, to critique the Applicant's VIA.

The Town contends that the VIA does not take into account "the historic or cultural significance of the local landscape/setting or its uniqueness." The Town's Master Plan credits the topography of the area, the pattern of hills and valleys and particularly, ridgelines, as the most important factor in shaping the character of the Town. The visual impact of mining activities is a subject of special emphasis in the Town's Master Plan. The Town claims that the VIA does not acknowledge the importance the Town places on maintaining the present scenic views and vistas.

With respect to the site of the proposed Project, the VIA does not indicate that the Town's Master Plan Future Land Use Plan designates the area of the North Quarry as "Land Conservation" in order to preserve its steep slopes and views.

In ranking available viewpoints, the VIA placed highways and roads at the bottom of the listing. The Town contends that local roads and highways may, in some instances, be more important than locally designated public lands, as such roadways regularly have many more users than such lands. These viewpoints may be especially important to tourists or those transiting the area on local roads.

With regard to specific criticisms, the Town takes issue with several of the rankings presented in the VIA, indicating that in some instances, if the ranking of only two factors was reversed, the end rating for a "Landscape Unit" would have bumped into the next higher category. The VIA illustrates key views with a "before" photograph and then, with "after" photographic simulations of the scenes without and with mitigation at the end of the mining, some 100 to 150 years hence. The Town believes that, since the proposed life of mine is so lengthy, the VIA should have run simulations of views of the quarry operations without and with mitigation at various intervals during the mining. The fact that mitigation might be in place in 125 years is meaningless to the several generations of viewers of the Project over the next century-plus. The Town takes issue with the VIA's procedures for scaling the dimensions of the project and the proposed mitigation in the photographic simulations, and in several instances, contends that the scale and/or location presented the viewer is inaccurate. The Town points to other potential inaccuracies in color, light and tone in the simulations presented in the VIA.

The Town notes that the system for evaluating visual impacts used in the VIA is taken from a U.S. Forest Service landscape management system. The VIA has modified the Forest Service system to fit its own purposes, establishing a classification termed "modification," which the Town believes is unjustified, especially since the Town has classified the North Quarry area of the site as having unique visual characteristics, deserving of preservation for future viewing. The Town contends that the creation of a highly visible scar on the ridge and side of one of the Town's most important scenic resources has not been adequately mitigated, and that the rural landscape character of the Town will suffer accordingly.

The OVA retained Matthew D. Rudikoff, principal of Matthew D. Rudikoff Associates, Inc., to review the Applicant's VIA. As part of its submission to supplement the issues conference record, the OVA also submitted a model of the proposed Project site, constructed by David B. Reagon, to illustrate what it believes will be some of the visual impacts resulting from the quarry proposal. Mr. Reagon also submitted a series of photographs of the proposed quarry site and the surrounding area to assist in the analysis of the visual impacts associated with the proposed Project.

The OVA contends that the photographic simulations of the effects of quarrying and mitigation are distorted and "grossly minimize the potential visual impacts of the Project." The OVA contends that several of the definitions used as indicators for visual sensitivity resulted in arbitrary and biased ranking results, and further that critical viewpoints were omitted from evaluation and analysis in the VIA. The OVA insists that the VIA employs an incorrect ratings system and omits any quantification of the numbers of persons who would view the Project site, contrary to established standards of review. Furthermore, the OVA contends the mitigation measures proposed by the Applicant are inadequate and unrealistic.

The OVA contends the end result of the Project would be an alteration to the Town of Amenia landscape which is not able to be adequately mitigated and which will cause irreparable harm to the visual characteristics which the Town has declared to be so important to its character in its Master Plan.

The Applicant, in response, submitted rebuttal comments to the concerns raised by the Town and the OVA. In essence, these comments suggested that the issues raised by the Town and OVA have already been addressed adequately in the VIA and that neither the VIA nor the methodology employed to produce the VIA have been shown to be invalid.

Ruling: The Visual Impact Assessment performed by the Applicant has been beneficial in supplementing the record of the issues conference. The analysis performed in the VIA has answered numerous questions which stemmed from the Applicant's previous cursory treatment of this issue. While Town and the OVA have criticized the methodologies employed in creating the VIA, I find the document to be a reasonable effort, as there is no single specific formulaic process for assessing visual impacts of a project. By utilizing a variety of accepted techniques and customizing a rating system to consider the visual impacts of the proposed Project from selected key locations in the viewshed, the Applicant has presented a document which evaluates the views of the site from these locations and assesses the relative impact of the site's disturbance on those views. This sort of analysis was clearly lacking in the Applicant's prior submissions concerning visual impacts in the DEIS.

However, at the same time, the VIA raises questions. A common theme in the comments received from the Town and OVA is that the VIA does not adequately consider the importance to the Town of Amenia and its residents of the scenic resources of the Town. This factor is especially important in the context of the Town's Master Plan which devotes an entire section to scenic resources. It is noted that the Town has not specifically designated the proposed Project site as a "Conservation Area" or "Critical Environmental Area," but, rather, has suggested that larger areas of the Town might be deserving of such a designation. The Town has drafted legislation for a local law to create a "Ridgeline Overlay Zoning District" which would stringently regulate development on these significant landforms.

In my judgment, the VIA does not ascribe the same level of importance to the maintenance of scenic resources within the community as does the Town government, although it is noted that the VIA predates the Town's proposed Ridgeline Protection local law. The VIA concludes that the mitigation proposed for the Project will minimize visual impacts consistent with what the document defines as lands of local importance. In this instance, the Town of Amenia has overtly declared that its scenic views and resources are the cornerstone of its community character. The Project will alter the views of the ridgelines in the areas of both the South and the North Quarry. Mitigation measures will not even begin on the site for a period of many years, leaving a significant alteration to the landscape in South Amenia which will significantly diminish the public enjoyment and appreciation of the qualities of the scenic views and vistas in this area of the Town. The level of visual impacts associated with the proposed Project will likely adversely alter the public's perception of the visual and scenic character of the Town of Amenia.

Over an extended period of time, many tens of years, the mitigation proposed, if successful, may provide some degree of relief to the visual scar on the landscape which would be caused by the Project. However, in the meantime, the visual impacts of the Project will be unmitigated, and ultimately, the extent to which the proposed mitigation can achieve its intended purpose is debatable. In view of the Commissioner's June 26, 1998 Decision In the Matter of Lane Construction Company, it is my determination that the issue of visual impacts and the resulting likely diminution of community character in the Town of Amenia is a subject requiring adjudication at a formal administrative permit hearing.

Traffic Impacts

In my June 16, 1997 Ruling, I pointed out areas of the Applicant's DEIS traffic analysis which required supplementation. Updates of the Applicant's data regarding traffic counts was requested, as well as the Applicant's response to concerns raised by the Dutchess County Department of Public Works concerning the potential deterioration of the County's roadways and bridges by overweight trucks transiting from the Project site.

The Applicant retained The Chazen Companies to provide the requested responses regarding potential traffic impacts of the proposed Project. The Chazen Companies produced a Traffic Impact Study ("TIS") for the Applicant, dated October 29, 1997. The TIS is predicated on the proposed Project development occurring in 2002; thus, 2002 is used as the design year for purposes of traffic analysis. To update the traffic data from the original DEIS, traffic counts in the area were performed in October 1997, using the hours of 7 A.M. to 9 A.M. as peak hours. An annual growth rate of 3.0% was used to bring these volumes forward to the design year of 2002. Roadway capacity was examined and factored into the TIS findings.

The Applicant currently generates a daily average of 18 (varying from 0 - 35) tri-axle dumptruck loads of material from its presently permitted sand and gravel mine at the proposed Project site which travel over a short distance (less than a mile) of County Route 3 and then via County Route 2 for approximately five miles to the Applicant's Leedsville main processing plant. The average number of trips per day is not expected to change significantly if the quarry operations are approved, since, as noted above, the sand and gravel mining operations will cease at such time as quarrying operations begin. Thus, the trucks would be hauling a different commodity, rock rather than sand and gravel, but would make approximately the same number of trips for quarry operations as they do now for the sand and gravel operations.

The quarry Project is proposed to operate during the March to November timeframe, normally from 7 A.M. to 4 P.M., Monday through Friday, although extended hours and Saturday operations could be employed occasionally in order to meet delivery schedules for large orders of product required on short notice. Truck traffic from the quarry is predicted to interact with the morning peak traffic hours, but due to the proposed hours of the quarry operation, interaction with the afternoon peak traffic is not anticipated.

The TIS analyzed the two intersections through which the truck traffic from the site passes County Route 3 at County Route 2 in South Amenia and County Route 2 at Amenia Union Road (Connecticut State Route 41) in Amenia Union. The TIS used the 1995 Highway Capacity Manual methodology for this analysis. The TIS concluded that the change from sand and gravel hauling to rock hauling would not cause any "significant deterioration of operating conditions at either of the studied intersections." Both intersections are predicted to operate at "level-of-service A," which means there is virtually no delay or congestion within the intersection.

In summary, the TIS concluded that the proposed Project "will not have any significant impact on the operational characteristics of the adjacent roadway network."

In 1990, the Dutchess County Department of Public Works expressed concerns regarding weight limitations on three bridges and the operation of overweight vehicles on four County roads in the locale of the proposed Project. Following a January 22, 1998 letter from the Applicant's principal consultant to the County presenting updated information regarding the three noted bridges and the four County roads, the County on February 6, 1998 confirmed that the three bridges for which it had expressed concern in 1990 were all capable of carrying the legal weight limit without restriction, but that overweight vehicles or "R" permit vehicles were prohibited from using these structures. The County further stated that no vehicle exceeding 80,000 pounds is permitted to operate on the County road system, and that sustained usage of the rural County road system at or even somewhat below this weight will produce rapid deterioration. The Applicant stated it does not operate overweight vehicles, and noted that, as a safety precaution, it generally loads trucks to within a 75,000 to 77,000 pound range.

In a December 7, 1999 letter, the County, through Paul L. Cassillo, P.E., Commissioner of Public Works, again expressed concern regarding the use of heavy vehicles and a consequent reduction in the service life of the involved rural County roads. Further comments relate to a potential increase in the truck traffic from the site, an issue resolved by the Applicant's commitment to cease sand and gravel mining at such time as the quarry begins operating. Additionally, the County noted that the TIS did not consider an no-action alternative, i.e. - when sand and gravel resources on the site are depleted, ceasing operations from the South Amenia site altogether, thus removing the truck traffic from the roads. The County also commented that the TIS did not quantify the number of mining operations which might contribute to the truck traffic on County Routes 3 and 2. Lastly, the County noted that the Applicant's driveways onto County Route 3 from its current sand and gravel operations do not meet the specifications for commercial entrances onto County roads. The County asserted that if the proposed Project is ultimately permitted, said permit must be conditioned to require the existing entrances at both the mining and processing sites, i.e. - South Amenia and Leedsville, be upgraded to County standards.

The OVA, through David J. Crawford, P.E., founder and sole proprietor of Crawford & Associates, commented that the TIS does not adequately consider existing/background conditions; that it fails to consider the cumulative impacts of truck traffic from a sand and gravel mining operation at the Applicant's site, in addition to the truck traffic from the proposed quarry operations; that the TIS possibly used the wrong peak hours; that there is no information regarding typical timing of truck trips during the day; that the TIS failed to consider weekend traffic conditions; that the TIS improperly limited the study area and failed to consider other areas which might be impacted by traffic from the Project site; that the TIS failed to consider all intersections between the Project site and the processing plant; that the TIS improperly limits the study area and does not consider use of roadways other than Dutchess County Routes 3 and 2; that the TIS fails to analyze a worst case; that the TIS failed to use up-to-date methodologies; that the TIS fails to address the concerns forwarded by the Dutchess County Department of Public Works; and that the TIS is inconsistent within itself and with the DEIS.

As part of the OVA's submission, a compilation of photographs taken by David B. Reagon was included. These photographs were submitted to depict the deteriorated condition of the pavement and a bridge with spalled and missing concrete, both on County Route 2, and to show examples of the trucks currently hauling materials from the Applicant's South Amenia sand and gravel mine. The truck photographs show vehicles exiting the mine site onto County Route 3, raising dust, trucks crossing the solid double line into the opposite highway lane, trucks encroaching onto the road shoulder and trucks with uncovered loads.

In response to these concerns, the Applicant submitted a rebuttal by The Chazen Companies. These response comments address the OVA concerns on an item by item basis, asserting the validity of the TIS and the methodology behind it.

Ruling: I do not find the subject of traffic to be an issue for adjudication in any future hearing on the proposed Project. The information submitted by the Applicant in the TIS and responding comments is sufficient to satisfy the requirements of SEQRA. One of the keys to this determination is the fact that the Applicant will not operate both the sand and gravel mine and the hard rock quarry at the simultaneously. When quarrying begins, mining of the unconsolidated materials at the South Amenia site will cease. Therefore, there will be no cumulative traffic impact of trucks from both operations running at the same time. The Applicant anticipates approximately the same quantity of materials to be produced at the quarry as is currently produced at the mine. The Applicant anticipates approximately the same number of trucks to haul the quarried rock to the Leedsville processing facility as currently haul sand and gravel from the South Amenia site. Weekend operations and extended operating hours beyond 4 P.M. are anticipated to be rare, but will occasionally occur, as they do now. Given the Applicant's commitment to cease one operation as the other begins, with respect to traffic impacts, the change from hauling sand and gravel from South Amenia to Leedsville to hauling quarried rock from South Amenia to Leedsville will likely be imperceptible.

With respect to the photographs submitted by Mr. Reagon, the photos show a variety of conditions which signal a need for more enforcement of currently applicable laws, regulations and permit conditions. For example, it appears that the Applicant needs to be more attentive to dust control on the site and in the area where its trucks enter onto County Route 3. This a situation which could be addressed by more frequent inspections and/or spot checks by the Department Staff. With respect to the uncovered loads and crossing a solid double line into the opposite traffic lane, again the Applicant must instruct its employees to ensure that the Vehicle and Traffic Laws are complied with. Periodic checks of the haul route by the appropriate law enforcement personnel might lead to better compliance.

Regarding the concerns expressed by the Dutchess County Department of Public Works, the record developed in this matter does not indicate that there are presently any restrictions to the use of County Routes 3 and 2, including the deteriorating bridge shown in Mr. Reagon's photographs, between South Amenia and Leedsville by vehicles weighing 80,000 pounds or less. It would seem that if the County could document premature reduction of the service life of the County road system as the result of heavyweight, but not overweight, vehicles, the County could then post various roads with reduced weight limits. The Applicant briefly discussed the no-action alternative in the DEIS, but the Applicant is not required by SEQRA to address the impacts of the no-action alternative on the service life of the County road system, nor is the Applicant required, in this instance, to analyze the number or projected remaining life span of other mining operations using the County road system.

Lastly, the draft permit for the South Amenia quarry proposed by the Department's Region 3 Staff includes a standard condition, contained in all such Department permits, which requires that: "The permittee is responsible for obtaining any other permits, approvals, lands, easements and rights-of-way that may be required to carry out the activities that are authorized by this permit." While the Department normally seeks to cooperate with other jurisdictions, the Department of Environmental Conservation has no legal authority to enforce the regulatory measures sought by or imposed by another jurisdictional body. Here, the Applicant's current sand and gravel operations in South Amenia are the subject of an existing permit, and as I noted in my earlier Rulings, the Applicant's Leedsville operations off of County Route 2 are the subject of a separate DEC permit and are not being considered in the instant proceeding. In this instance, if the County deems the Applicant's existing driveways onto County Route 3, as well as those onto County Route 2 in Leedsville, to be substandard with respect to the specifications for commercial entrances onto County roads, then the County should independently require the Applicant to upgrade any driveway entrances currently being used for its operations.

Thus, the act of issuing a DEC permit for the proposed quarry is not necessary for the County, as the jurisdiction with control over the County road system, to require that the Applicant satisfy the County's commercial driveway standards in any location where the Applicant's operations have entrances onto County roads. Nevertheless, as a condition of approval of any permits which may be issued to the Applicant for a hard rock quarry operation in South Amenia, the County's specifications for commercial entrances onto County roads shall be incorporated into the mining and reclamation plans for the proposed Project site, and a special condition shall be included to require that the Applicant must maintain any/all such driveways in conformance with the County's specifications for as long as the Applicant is using the facilities.

Air Quality Impacts

In my June 16, 1997 Rulings, I identified the shortcomings of the Applicant's analysis of air quality/dust deposition. I then laid out a "roadmap" for the Applicant, clearly indicating what was necessary in the way of supplemental information to bring the original air quality analysis up to date and to provide the information which I needed to determine if adjudication might be necessary regarding this issue.

The Applicant, through Brian W. Doyle, PhD., P.E., Doyle Engineering Inc., prepared a report on "Air Emission Impacts" ("AEI Report") to respond to the concerns regarding potential impacts of the Project on air quality which had been raised during the initial issues conference process. Using the Environmental Protection Agency ("EPA") SCREEN3 model to analyze the impacts on air quality from the quarrying and initial rock processing operations in the North Quarry area of the proposed site, the AEI Report concluded that impacts would be "limited to small increases in ambient particulate (dust) levels," but that, "In no case will ambient particulate levels approach the NY State ambient standards."

The Applicant chose not to follow the explicit guidelines which I had laid out, instead choosing to use a screening model for analyzing potential air quality impacts, rather than EPA's ISC3 model which I referenced in the Rulings. The bulk of the criticism of the Applicant's AEI Report centers on the use of the SCREEN3 model and the inputs to that model. The OVA, through Mr. Crawford, indicated various deficiencies in the AEI Report, including: that it failed to properly consider background concentrations of air pollutants in the analysis, that the study area is improperly limited, that the worst case scenario was not considered, that the state of the art model for air quality impact analysis was not used, that numerous assumptions were utilized in the analysis, that there are inconsistencies between information in the AEI Report and in the DEIS, that errors were made in using improper emission factors and that fugitive emissions and complex terrain were not considered.

The Applicant submitted a rebuttal by Dr. Doyle to address these concerns. In this response, the Applicant claims that use of the SCREEN3 model, incorporating the selected inputs, results in the calculation of much higher (more conservative) predicted ambient particulate levels, than would be calculated using the more refined and detailed model, ISC3.

Ruling: Emission dispersion modeling for air quality analysis is a very complex subject area which is generally not well understood by persons who have not had specific training in such modeling and who do not practice in this subject area on a regular basis. Even professionals who may be very qualified in numerous other engineering and environmental areas may fail to fully grasp the numerous intricacies and complexities involved in air quality analysis and modeling.

Having said that, I must note that while Mr. Crawford, on behalf of the OVA, appears to be well qualified in the areas of civil and mechanical engineering. However, in the materials which Mr. Crawford submitted, there is no mention of any claimed expertise in the field of emission dispersion modeling and air quality analysis. It is one thing to read a report concerning the potential air quality impacts of a project and to point out what seem to be very valid concerns, based upon interpretations of excerpts from selected EPA guidance documents. It is a very different matter to fully understand how such excerpts

relate to the guidance documents in their entirety and how various EPA guidance documents and modeling regimes interrelate. Nevertheless, several of the concerns raised by OVA related to the various inputs and appropriateness of the model are legitimate and deserve further analysis.

In this regard, the Department has on its Staff, in the Division of Air Resources, numerous extremely well qualified engineers, researchers and scientists, some of whom have national and/or international credentials in the field of air quality analysis and emission dispersion modeling. It is truly unfortunate that the comments on Air Quality from the Department Staff in the instant matter consisted of one sentence, "The additional information adequately responds to the requests contained in the ALJ's 1997 ruling." It would have been very helpful if the Staff had provided even a modicum of substantive commentary on the Applicant's AEI Report, even if only that the use of the SCREEN3 model is an acceptable substitute for the ISC3 model in this instance.

So, here I am left with a dilemma. There is no dispute in the record of this proceeding that the use of the EPA ISC3 model is the accepted 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 (see text of discussion preceding initial Ruling on Air Quality/Dust). It was specifically designed to accommodate multiple sources of emissions and complex terrain and is recommended for modeling fugitive emissions that can be quantified from an industrial source complex, such as a mine site. It has been successfully used to do so in previous mine/quarry administrative permit hearings conducted by the Department (and by this ALJ).

However, while the Applicant does not dispute this fact, and even discusses "The more accurate ISC model" in its response submission, the Applicant did not perform any modeling of potential emissions from the proposed quarry operations using the ISC3 model. The Applicant relies on the use of the SCREEN model as "accepted procedure for 'screening' purposes to determine if more sophisticated modeling is required." The SCREEN model is designed to estimate single source emissions over short time periods. The Applicant contends that the SCREEN model overestimates ambient air impacts because it computes the worst case for every source, and when the predicted emissions from those sources are summed, the total estimated "ambient dust (particulate) concentrations are much higher than would result from using a more detailed model." The Applicant thus dismisses the need to use the ISC3 model since, "There is no point in running the ISC model which would only show a lower impact than indicated by the SCREEN results."

There exists, then, a disputed issue of fact regarding the air quality analysis. While acknowledging the benefits of the SCREEN3 model for "screening" purposes, is it not appropriate for the record of this proceeding to be as accurate as possible in predicting the anticipated impacts to the South Amenia community over the course of a proposed 150 year Project, thus necessitating an analysis of air quality impacts using "The more accurate ISC3 model"? Further, there are disputed issues regarding the inputs to the SCREEN

model used by the Applicant, with the potential for the suggested alternative inputs to increase the projected emissions from the quarry operation, such that exceedances of the standards might occur. It is my determination that these issues should be addressed in an adjudicatory hearing.

Water Quality Impacts

In my June 16, 1997 Ruling, I noted several areas in which the Applicant's DEIS analysis of potential water quality impacts were deficient. These areas included potential impacts of the quarry operations on residential water wells, potential particulate deposition on the Webatuck Creek and freshwater wetland AM-22 along the banks of the Webatuck Creek near the North Quarry and the potential need for a General Stormwater SPDES Permit for Construction Activity based upon the areal extent of the disturbed areas on the site.

The Applicant responded with information believed to be attributed to Roy T. Budnick, PhD., the Applicant's principal consultant in the instant case. Dr. Budnick is "a certified professional geologist and president of Roy T. Budnick & Associates, Inc., geologic and environmental consultants, a firm specializing in hydrogeology and the analysis of environmental impacts of, amongst other land uses, aggregate mining."

The Applicant contends that, due to the steep slopes and relatively impermeable bedrock in the North Quarry area, most precipitation results in runoff to recharge the adjacent and lower elevation surficial aquifer. The Applicant estimates that the two houses along Benson Road closest to the North Quarry (the closest of which is owned by the principal of Amenia Sand and Gravel, Inc.) draw water both from the bedrock aquifer and, through induced recharge, from the nearby sand and gravel aquifer. Since the North Quarry area is a small portion of the recharge area available to the wells at these two residences, no adverse impact on these residential wells is anticipated. The Applicant further stated that the mining at the North Quarry will not affect the quantity or quality of the water in nearby wells, citing no withdrawals of groundwater, no use of petrochemicals, other than fuels and lubricants for internal combustion engines, which will be stored in tanks meeting all applicable specifications, and the vaporization of all chemicals used in blasting.

Relying on the AEI Report (see above section), the Applicant predicts no impacts on the Webatuck Creek, suggesting that coarse particulate matter (larger than 10 microns) will settle within the mine site and not reach the creek. The Applicant also predicts that any finer, suspended particulate matter (less than 10 microns) will be dispersed at significantly lower levels than the limits provided in the State and Federal standards, further suggesting that any fine particulate matter which reaches the creek will not settle through the water column under normal flow conditions and that "airborne dust will have no effect on the water quality in the stream."

The Applicant noted that only 3.3 acres of the South Amenia site will be disturbed, thus falling under the threshold 5 acre minimum which would require a General Stormwater SPDES Permit for Construction Activities.

The Department Staff provided substantive comments regarding the water related issues. While the Staff agree with the Applicant that there should be no anticipated decrease in the recharge to the bedrock aquifer or any withdrawals from the surficial aquifer for any water for use in the quarry operations, the Staff did note that blasting could create new fractures in the bedrock which could redirect groundwater flow away from the existing fractures which supply groundwater to the residential wells, and also, that blasting could cause turbidity in residential well water.

The Staff also commented on the stormwater management provisions of the Applicant's mining and reclamation plans. The Staff noted that the calculations done by the Applicant relating to the design of the three stormwater management ponds on the site are adequate for stormwater control and protection of the Webatuck Creek from runoff.

The Staff did not comment on the potential impacts of particulate deposition on the surface of Webatuck Creek.

The Staff concurred with the Applicant that, with 3.3 acres of disturbed area on the site, the proposed Project was not required to secure a General Stormwater SPDES Permit for Construction Activities.

The OVA, again through Mr. Crawford, was critical of the Applicant's supplemental information regarding water resources. The OVA claims that the Applicant's two home study area for residential well impacts is too small and that in other instances, the Department has required a survey of residential wells within one-half mile of a proposed quarry, which in this instance would encompass approximately 30 residences. The OVA concurs with the Staff's comment that blasting could potentially alter the direction of groundwater flow. However, the Applicant has not proposed, nor has the Department Staff required, a residential well monitoring plan.

The OVA, again through Mr. Crawford, based upon its assessment of the AEI Report (see above section), asserts that the Applicant has given scant consideration to the potential for adverse impacts resulting from dustfall on the surface of the Webatuck Creek and adjacent freshwater wetlands. The OVA again cites the use of the EPA ISC3 model as being necessary to assess the true impacts of particulate deposition on surface waters adjacent to the site.

The OVA suggests that the Applicant's proposed use of 6,000 gallons of water per day from the stormwater detention pond located in the South Quarry has the potential for negatively impacting the hydrologic regime in the vicinity of the quarry, such that there might be a drawdown of the Webatuck Creek or a change in the flow of groundwater from the Creek. The OVA believes that the hydraulic connection between the stormwater detention pond and the creek needs more investigation.

In response to these concerns, the Applicant submitted a statement from Dr. Budnick rebutting the OVA comments regarding the use of daily water from the stormwater detention pond located in the South Quarry area, stating that such a small usage would have a negligible impact on the hydrogeology of the area.

The OVA submitted a statement from Mr. Crawford indicating that the Department Staff's analysis of the Project's potential water related impacts is not sufficiently critical. The OVA further states that the Applicant's use of Soil Conservation Service Technical Release 55 ("TR-55") is inappropriate for the final design of the stormwater detention ponds. The OVA contends there is not enough information provided by the Applicant to determine the potential stormwater runoff effects on the Webatuck Creek. The OVA questions whether the Applicant will need a separate mining permit for the excavation of the sand and gravel necessary to create the stormwater detention ponds in the North Quarry area and that the impacts of such excavation need to be assessed independently from the quarry related impacts. The OVA asserts that the Applicant has failed to address the swales or bermed channels which will be necessary to convey stormwater to the detention ponds.

Lastly, the OVA contends that, commencing February 7, 2000, the Federal EPA requires a discharge permit for construction sites which disturb between one and five acres. The OVA asserts that since DEC intends to implement the Federal rule as written, the Applicant will require a General Stormwater SPDES Permit for Construction Activities.

Ruling: There are disputed issues of fact concerning the potential water related impacts of the proposed Project. These issues concern: the paucity of information available in the Applicant's residential well study, both regarding extent of the study area and depth of analysis; the need for a residential well monitoring program; the design and adequacy of the Applicant's proposed stormwater management facilities in order to prevent adverse impacts to the Webatuck Creek and the hydrogeology of the area; and the potential impact of particulate deposition on surface waters (related to the air quality impacts discussed above). It is my determination that these issues should be addressed in an adjudicatory hearing.

With respect to the potential requirement for the Applicant to now apply for a General Stormwater SPDES Permit for Construction Activities, no adjudication is necessary for a determination on whether the Applicant now needs this permit. That determination is simply whether the applicable standards now require such a permit for construction sites of between one and five acres disturbed area. If the SPDES permit is required, the Applicant must apply for it. If required, the details of the application for the SPDES permit should be encompassed within the review of the other water related issues noted above.

Summary Ruling

An adjudicatory hearing in the instant matter should be scheduled to consider the issues identified above as being yet unresolved, i.e. - visual impacts, air quality impacts and impacts on water resources.

Appeals

Pursuant to 6 NYCRR §§624.6(e) and 624.8(d), these Supplemental Rulings on issues may be appealed in writing to the Commissioner within ten days of receipt of the Rulings. I am extending this time period in view of the involvement of the parties in the adjudicatory hearing.

Any appeals must be received at the office of Commissioner John P. Cahill (NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010) no later than September 1, 2000. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than September 12, 2000.

The parties shall ensure transmission of all appeal and reply papers to me and all others on the Service List at the same time and in the same manner as transmission is made to the Commissioner. Submission of any appeal or reply papers by facsimile (fax) is not authorized.

For the New York State Department
of Environmental Conservation

/s/
By: ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE

Dated: Albany, New York
August 10, 2000

To: Service List (enclosed)

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