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Dalrymple Gravel & Contracting Co., Inc. - Interim Decision, September 24, 2002

Interim Decision, September 24, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway Albany,
New York 12233-1010

In the Matter

- of -

Application for a Mined Land Reclamation Permit pursuant to Article 23, Title 27 of
the Environmental Conservation Law ("ECL"), for a proposed mine in the Town of Erwin, Steuben County

- by -

Dalrymple Gravel & Contracting Company, Inc.

Application No. 8-4642-00101/00001-0

INTERIM DECISION

September 24, 2002

Interim Decision of the Commissioner

Introduction and Background

This Interim Decision relates to appeals from the Issues Ruling ("Ruling") of Administrative Law Judge ("ALJ") Richard R. Wissler dated September 25, 2001. The ALJ's Ruling addresses various issues raised by the parties in connection with the application of Dalrymple Gravel & Contracting Company, Inc., ( "Applicant") for an environmental permit from the Department of Environmental Conservation ("Department" or "DEC") to construct and operate a mine on its property in the Town of Erwin, Steuben County.

Legislative Hearings, providing an opportunity for public comment, were held on March 27, 2001 and July 25, 2001. An Issues Conference for those interested in party status was held on July 25, 2001. The Applicant, Department staff of Region 8 ("Staff"), and a voluntary association of residents in the hamlets of Coopers Plains and Long Acres, CPLA Against Gravel Mines ("CPLA" or "Intervenor") appeared at the Issues Conference. By letter to the parties dated October 18, 2001, the ALJ extended the time by which appeals of the Ruling were to be filed until November 26, 2001 and the time by which responses to such appeals were to be filed until December 10, 2001. CPLA, Staff and the Applicant each filed timely appeals and responses.

Project Description

The Applicant proposes to mine unconsolidated sand and gravel from a 94 acre life of mine area within a portion of its 313 acre parcel in the Town of Erwin, Steuben County. The mine, which is to be known as the Scudder Sand and Gravel Pit, Smith Hill Road, would be excavated over a twenty-year period in four phases. It is anticipated that some 3,000,000 cubic yards of sand and gravel would be removed over this period of time. The excavated area of the mining site will, upon completion of mining activities, be used as a pond for recreational use, with any unaffected land to remain agricultural or forested. In this proceeding the Applicant seeks a five year mining permit to mine unconsolidated material from only 64 of the proposed 94 acre life of mine area, which is revised downward from the original proposal to mine 82.4 acres from a 111.9 life of mine area in its permit application.

SEQRA Status

On July 28, 2000, the Department, as lead agency under the State Environmental Quality Review Act ("SEQRA") ECL Article 8 and 6 NYCRR Part 617, determined that the project may have a significant environmental impact and issued a Positive Declaration requiring the preparation of a Draft Environmental Impact Statement ("DEIS"). On December 19, 2000, the Department accepted the DEIS offered for filing by Applicant and issued a Notice of Complete Application.

Permits Required

A Mined Land Reclamation Permit pursuant to Article 23, Title 27 of the ECL is the only permit required for the project. On July 31, 2001, the United States Army Corps of Engineers ("ACOE") made a determination indicating the ACOE has no jurisdiction over the proposed project and that an ACOE permit is not required.

Standards for Adjudication

An issue is adjudicable if it is raised by a potential party and is both substantive and significant. 6 NYCRR § 624.4 (c)(iii). 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. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. 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)(2),(3).

In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR § 624.4(c)(4).

Prior Department decisions establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.

Rulings of the ALJ

The ALJ advanced two issues for adjudication: the noise generated by the proposed project and the sufficiency of the site alternatives analysis provided by the Applicant. Based upon the issues advanced, the ALJ also ruled that CPLA met the requirements for raising an adjudicable issue and was accordingly granted full party status.

Noise Issues

In Ruling 1, the ALJ determined that the Intervenor raised issues with respect to noise impacts that were both substantive and significant. The ALJ found that an issue of fact existed with respect to the appropriateness of the location of the sound receptors utilized by the Applicant in conducting its noise impact analysis. The Intervenor had argued that the Applicant placed the receptors in locations with atypically high levels of ambient noise, thus reducing the differential between the ambient noise level and the anticipated noise level experienced with the mine in operation. Additionally, the placement was claimed to be in violation of the Department Policy and Guidance Memorandum(1) (" Noise Memorandum") since Department protocols called for placement of the receptors at the boundary of the Applicant's property or at the point of use of contiguous property owners, neither of which were present in the placement of the receptors by the Applicant.

The Intervenors argued, and the ALJ agreed, that the placement of the receptors could significantly impact the ambient noise level which provides the baseline for judging whether the maximum noise level of 62 dBA which was projected by the Applicant to occur from mining or clearing operations would clearly exceed the standard provided for in the Department's Noise Memorandum.(2) Accordingly, the ALJ found that the ambient noise level had not been sufficiently established. The ALJ also determined that the impacts of noise from truck traffic was not adequately accounted for in the Applicant's DEIS. The cumulative impact of truck traffic from the Applicant's mine and a neighboring existing sand and gravel mine also called into question the appropriateness of the ambient noise level utilized by the Applicant in its noise analysis. Finally, the ALJ determined that the noise analysis did not sufficiently address the potential for the existing topography surrounding the mining site to produce an amphitheater effect, accentuating and focusing noise impacts from the proposed mine. The ALJ concluded that the lack of reliable ambient noise level determinations, made it impossible to ascertain whether the mitigation measures proposed by the Applicant were appropriate to the circumstances.

I concur with the ALJ that the Intervenor has raised an issue with respect to noise that is both substantive and significant. The appropriate placement of the receptors could impact the relevant ambient noise levels and with that, the sufficiency of the Applicant's mitigation of noise impacts. Clearly these are proper issues for adjudication given the requirements for minimizing noise impacts in the mining laws, regulations and the Department's noise policy, as well as SEQRA, and the potential for the denial of the permit sought based upon a failure to comply with such requirements.

In making this ruling, I am mindful of the assertion of the Applicant that the Intervenor's witness, Mr. Hayes, is not a "noise" engineer. Nevertheless, the ALJ concluded, preliminarily, that Mr. Hayes was qualified to perform the numerical analysis of noise levels sufficient to make the required showing that, based on the Applicant's own data, it would be unlikely that the Applicant could comply with the standards of Department's Memorandum if the sound receptors were placed in more appropriate locations and to raise questions with respect to the impact on the mitigation proposed by the Applicant. As the ALJ found the testimony of Mr. Hayes to be persuasive in raising the need to inquire further on this issue and based upon the record before me, I see no reason to disturb that finding. I conclude that the Intervenor has met its burden, and the issue is joined for adjudication.

However, I agree with the Applicant and Staff that the ALJ's determination with respect to truck traffic and the "amphitheater effect" of the topography of the site should not be adjudicated as independent issues. The amphitheater effect and the impacts of traffic on ambient noise will be accounted for in the adjudication of the proper ambient levels as directed above. Based upon the offer of proof presented, there is no reason to separately review these issues in a hearing.

Alternative Site Analysis

The ALJ ruled that the Draft Environmental Impact Statement ("DEIS") provided by the Applicant was inadequate in that it failed to provide a description and evaluation of reasonable alternative sites for the proposed sand and gravel mine. 6 NYCRR § 617.9(b)(5)(v) requires that the DEIS contain "a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed."

It was found here that the Applicant was the owner of the proposed site in the Town of Erwin and also had acquired a purchase option for a potential site in the Town of Campbell. As the ALJ observed in his ruling, 6 NYCRR § 617.9(b)(5)(v)('g') authorizes a limitation of the comparative assessment to sites owned by or under purchase option by the Applicant.

The ALJ has searched the record of these proceedings, including the DEIS, for a description and evaluation of the Town of Erwin site and the site under option in the Town of Campbell and found only cursory and inadequate references to the optioned site. References to the Town of Campbell site are found in the DEIS and in various correspondence from the Applicant to Staff (Exhibits 9, 10 and 12). However, such references are dismissive of the development of the Town of Campbell site as being "speculative" and lacked the necessary 'description' and 'evaluation' to permit a comparative assessment of the alternatives discussed. Accordingly, these references fail to satisfy the requirements of 6 NYCRR § 617.9(b)(5)(v).

As the ALJ suggests, there is no reason to doubt that the Applicant has the experience and expertise to properly evaluate the two sites as required by SEQRA; but having such ability is clearly no substitute for providing the required analysis. Contrary to the suggestion of the Applicant, moreover, the burden of performing such analysis or identifying any impacts that might be avoided by mining a different site cannot be shifted to the Intervenor. (Applicant Appeal Brief, p. 20). Finally, the Applicant's argument that, because of the consumptive nature of mining, it regards the Town of Campbell site as an "additional" site not an "alternative" site, is unavailing. 6 NYCRR § 617.9(b)(5)(v) does not excuse the requirement of the comparative assessment of two or more sites because a project sponsor is considering projects at both sites.

While Staff is technically correct in its contention that SEQRA does not mandate an analysis of alternative sites, SEQRA does mandate that the EIS "evaluate all reasonable alternatives."6 NYCRR § 617.9(b)(1). I determine that site consideration of the Elmer Smith property, which is located within two miles of the project site and under purchase option by the Applicant, is a reasonable alternative. Without consideration of this alternative site, I could not possibly make the required certification under 6 NYCRR § 617.11(d)(5). In making such determination, I have considered and rejected Staff's contention that an alternative analysis is not required in this case because of consumptive nature of mining. I find no support for such an exception in the SEQRA regulations or in any of the cases decided under SEQRA. Furthermore, the projected life of the mine is twenty years and so whatever impacts the project may create will not be transitory. Finally, Staff's reliance on Matter of Dutchess Quarry and Supply Co., Inc., Interim Decision of the Commissioner, August 13, 1992, is misplaced. In Dutchess Quarry the SEQRA analysis issue under consideration was segmentation; not alternative analysis. Also, the potential alternative analysis site in Dutchess Quarry was adjacent to the project site. An alternative site analysis is less significant where the sites under comparison are adjacent to each other.

Typically, an evaluation of all reasonable alternatives must be part of the SEQRA record, not necessarily just an analysis of alternative sites. Under 6 NYCRR § 617.9(b)(5)(v) "sites" is one of several listed appropriate alternatives. The Applicant, like any other project sponsor, is charged with the responsibility under SEQRA of describing and evaluating the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the Applicant. Thus, under normal circumstances, Ruling 2 would be too narrow to the extent that it implies that the Applicant would be excused from considering other alternatives such as technology, scale or magnitude. Here, however, the Intervenor has only put into issue the lack of analysis of a alternative site and has not been heard to take issue with the lack of consideration of other alternatives. Accordingly, a description of "reasonable alternatives" shall, in the instant case, be limited to a comparison of the project site with the Elmer Smith property as an alternative site.

In the paragraph of his Ruling immediately preceding Ruling 2, the ALJ suggests that the Applicant must provide a written analysis of various factors the Applicant takes into consideration in evaluating a site for a potential sand and gravel mine. The factors cited by the ALJ for inclusion in the analysis appear to be limited to the economic or business aspects of operating a mine. Such analysis would also be too narrow. Without intending to provide guidance to the Applicant as to what factors might be reasonable to take into consideration in providing a comparative analysis of the two sites, any such analysis would be almost certainly inadequate if it failed, for example, to include a comparative assessment of noise impacts at each site.

Accordingly, the ALJ's ruling that the Applicant failed to provide an adequate description and evaluation of reasonable alternatives, as modified by this decision, is upheld and the matter is advanced for adjudication.

Other Issues

The ALJ rejected for adjudication issues proposed by the Intervenor dealing with the presence of unmapped "jurisdictional" wetlands on the site; the possible presence of endangered, threatened or rare species; the location of the project within a 100 year flood plain; the possible presence of prehistoric sites in the area of the project; traffic; the threats to a nearby principal aquifer and segmentation. The Intervenor appealed three of these rulings: the presence of jurisdictional wetlands, the presence of endangered or threatened species and the segmentation issue. Neither Applicant nor Staff appealed any of these rulings.

With respect to the allegation of the presence of a wetland of jurisdictional size located within the vicinity of the proposed mine, the ALJ was satisfied with the unequivocal representation by Staff that the closest wetland boundary to the project site was located more than 100 feet from the perimeter of the life of mine area. I determine that the ALJ's reliance on this representation by Staff was justified. See, In the Matter of Stissing Valley Farms, Inc., Interim Decision of the Deputy Commissioner, January 7, 1997, in which it was stated that "The determination of jurisdictional wetlands is properly the prerogative of Staff, and not potential intervenors."

On the issue of endangered, threatened or rare species, the ALJ accepted the conclusion of Applicant's expert, Grand Canyon Ecological Services, that none of these were found on the project site. Moreover, Staff's Senior Wildlife Biologist, James Fodge, maintained that no part of the ravine that might harbor whitetail deer was located within the area of the proposed mine. Furthermore, Fodge discounted the likelihood of the use of the Applicant's property as habitat by the yellow throated warbler, the bald eagle or the eastern massasauga rattlesnake.

The offer of proof here on the presence of endangered or threatened species consists of the anecdotal evidence presented at the legislative hearing by a Ms. Sherrie Robinson who stated that there are timber rattlesnakes and eastern diamond back rattlesnakes on the property.(3) However, Ms. Robinson did not indicate that there are rattlesnake dens on the property or, for that matter, whether she had personally observed either species of rattlesnake on the property or the source of her information. Likewise, information was provided regarding the presence of rattlesnakes and a "nest of timber rattlers" at the site. This information comes into the record second hand from CPLA's attorney and environmental consultant and is based on statements made to them from two men who did not wish to speak and whose identities are unrevealed or unknown.(4) Reports of bald eagles being "on the river" are also unconvincing. These reports, taken with the conjecture about rattlesnakes, hardly provide a basis for discrediting the observations and conclusions of Applicant's expert and of James Fodge, DEC Senior Wildlife Biologist, who has been familiar with the area and this particular site for a number of years.

I find that the Applicant properly distinguished the facts in State of New York v. Sour Mountain Realty, Inc., 276 A.D.2d 8, a case cited by the Intervenor, from the facts here. In Sour Mountain there was a known timber rattlesnake nest approximately 260 feet from the applicant's property line. The applicant there was seeking a mining permit and had constructed a four foot high snake proof fence to keep rattlesnakes off its property. The court in Sour Mountain held that the fence would interfere with the migration of timber rattlesnakes so close to a den and therefore constituted a "taking" under New York State Endangered Species Act (ECL §11-0535 [2]). The ruling did not deal with the impacts to rattlesnakes caused by the mining operations itself. In fact in The Matter of Sour Mountain Realty, Inc., Interim Decision of the Commissioner, July 18, 1996, it was held that the issue of quarrying in proximity of the known timber rattlesnake den was not adjudicable.

The Intervenor claims that the environmental review of this project has been compromised by what it considers to be the segmented consideration of the mining project with the speculated future operation by the Applicant on the site of an asphalt or cement plant. Assuming arguendo that it was demonstrated that the Applicant had a plan to operate either such plant on the project site, such plan would most likely require consideration of the project as a whole.

6 NYCRR § 617.3(g)(1) provides:

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

However, the Applicant has denied that it had any plans to site an asphalt or cement plant on its property (Applicant's Reply Brief, pp. 14,16), and the record here is replete with affirmative statements by Applicant that the subject of this proceeding does not include a concrete plant, a cement plant, an asphalt plant or an asphalt paving plant. The Intervenor has parsed the exact wording of such statements and regards them as equivocal. It also cites a claim by Pauline Passmore, a CPLA member, that Mr. Dalrymple, a principal of the Applicant, stated "on occasion" that the Applicant intended to develop the site with concrete and asphalt plants.(5) The Intervenor maintains that the Applicant has a duty to pledge affirmatively not to engage in any of these additional activities and to accept permit conditions prohibiting such activities.

SEQRA does not impose any such duties on a project sponsor, and, absent evidence of fraud or misrepresentation, the Department, as lead agency, will not look beyond the formal, repeated representations of the Applicant. In this case the sole basis for raising the issue of misrepresentation by the Applicant is the statement of Pauline Passmore that on one occasion she overheard Mr. Dalrymple making a statement concerning the Applicant's plans for the property. This uncorroborated statement is apparently undenied.(6) While Mr. Dalrymple denies having plans to engage in such other activities, he does not, on this record, deny making the statement.

It would be unreasonable to construe the reported statement as a declaration of intent. Moreover, even if such statement was made by Dalrymple, it would be less relevant than whether the Applicant actually had concrete plans for such additional activities. Where a project sponsor had acknowledged a desire to expand its project to include other activities, segmentation was not necessarily an issue. In Re Dutchess Quarry & Supply Co., Inc., (1992). There a mining project sponsor had acquired a parcel adjacent to the project site and had indicated a desire to mine such parcel at such future time. The EIS did not examine the potential environmental impacts of mining the adjacent parcel. The Commissioner held that there was no impermissible segmentation where the sponsor neither had the capability nor had taken any concrete steps to mine in the adjacent area. See, also Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 149 A.D. 2d 266, 155 A.D. 2d 521, 545 N.Y.S. 2d 297 which held that an EIS is not required until a "specific project is proposed."

The ALJ held that any future action contemplated by the Applicant is so tentative and speculative at this time so as to not require an environmental review of the possible additional activities. I concur with the ALJ in his holdings on segmentation, wetlands and the possible presence of endangered or threatened species on the project site and see no reason to disturb his rulings on these points.

Other Matters

I have reviewed the remaining appeals to the ALJ's Rulings not specifically addressed here and find no reason to overturn the ALJ's findings on these other matters.

Conclusion

For the reasons stated above, I remand this matter to the ALJ for further proceedings consistent with this Interim Decision.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
September 24, 2002

1. DEC Program Policy: Assessing and Mitigating Noise Impacts; Issued October 6, 2000; Revised February 2, 2001.

2. The Applicant's noise analysis, based on its proposed receptor location, indicated that ambient noise levels in the area would be between 60 and 69 dBA. Ruling, p. 6. The Intervenor's noise analysis, utilizing different receptors, indicates ambient noise levels would be less than 50dBA. Id., p. 7.

3. Legislative Hearing, March 27, 2001; pp. 38, 39.

4. Issues Conference, July 25, 2001; pp. 130, 131.

5. This alleged statement is brought into the record at the Issues Conference by the Intervenor's attorney, Mr. Ruppar, as follows: "While Mr. Bracci was talking one of the citizens came up to me and asked me, would it matter if I heard Mr. Dalrymple answer a question at a Town Board meeting regarding his intentions for an asphalt plant? 'I (sic; probably should read "he") said I wouldn't rule it out to the Town Board.' " Issues Conference, July 25, 2001 , p. 272, line 15.

6. Contrary to the assertion by Staff that Exhibit 15 contains a "specific denial of the statements attributable to Mr. Dalrymple...." (Staff Reply Brief, p. 14),. Exhibit 15, states, inter alia, that "Dalrymple has never stated at any public hearing that such a plant would be sited at the Smith Hill Road Site." There has been no denial, however, of the specific statement attributed to Mr. Dalrymple by Mr. Ruppar quoted in footnote 2, supra.

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