Dalrymple Gravel & Contracting Co., Inc. - Issues Ruling, September 25, 2001
Issues Ruling, September 25, 2001
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of DALRYMPLE GRAVEL & CONTRACTING COMPANY, INC.,
for a Mined Land Reclamation Permit for a proposed mine in the Town of Erwin, County of Steuben,
pursuant to Article 23, Title 27 of the Environmental Conservation Law
September 25, 2001
RULING ON ISSUES AND PARTY STATUS
DEC Application No. 8-4642-00101/00001-0
Summary of Rulings
This ruling identifies the parties and the issues for adjudication in the hearing on Dalrymple Gravel & Contracting Company's application for a mined land reclamation permit for sand and gravel mining to be conducted in the Town of Erwin, Steuben County. The parties to the hearing are the Applicant, the Department Staff, and CPLA Against Gravel Mines ("CPLA"), a voluntary association of residents of the hamlets of Coopers Plains and Long Acres. The issues identified for adjudication in the hearing are noise impacts and the adequacy of the alternative site analysis. Proposed issues which will not be adjudicated include wetlands, traffic, endangered and threatened species, flood plain and surface waters, the adequacy of the archeological investigation, excavation into a primary aquifer, visual impacts and segmentation.
Project Description and Location
Dalrymple Gravel and Contracting Company, Incorporated, (the "Applicant") proposes to mine unconsolidated sand and gravel from a 94 acre life of mine area within a 313 acre parcel in the Town of Erwin, Steuben County, to be known as the Scudder Sand and Gravel Pit, Smith Hill Road, over a period of twenty years resulting in the removal of approximately 3,000,000 cubic yards of sand and gravel. The mining would occur in four phases. At the conclusion of all mining activity, the excavated area will become a pond for recreational use with the unaffected land remaining agricultural or forested. In the instant proceeding, the Applicant seeks a five year mining permit to mine unconsolidated material from a 64 acre permit term area within the aforementioned 94 acre life of mine area.
By application dated January 19, 2000, the Applicant applied for a mined land reclamation permit pursuant to Environmental Conservation Law ("ECL") Article 23, Title 27, and Parts 420 through 425 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Parts 420 through 425"). This application proposed a life of mine area of 111.9 acres with 82.4 acres to be mined during the five year term of the permit. On July 11, 2001, the application was revised to reflect a reduced proposed life of mine area of 94 acres with 64 acres to be mined during the five year term of the permit.
SEQRA Status and Determination of Completeness
The Department of Environmental Conservation (the "Department") is the lead agency for the review of the project under the State Environmental Quality Review Act ("SEQRA," ECL Article 8 and 6 NYCRR Part 617). On July 28, 2000, the Department determined that the project may have a significant environmental impact and issued a SEQR Positive Declaration requiring the preparation of a draft Environmental Impact Statement ("DEIS"). On December 19, 2000, the Department accepted the DEIS prepared by the Applicant and issued a Notice of Complete Application. Pursuant to that Notice, the public was invited to submit comments on the application and DEIS through January 31, 2001.
Legislative Public Hearings
Hearing of March 27, 2001
A Notice of Legislative Hearing, dated February 21, 2001, was published in the Environmental Notice Bulletin ("ENB") and as a legal notice in the Star-Gazette and The Leader on February 28, 2001, each being a newspaper of general circulation in the area of the Town of Erwin. The Notice provided that a legislative hearing, pursuant to 6 NYCRR Parts 617 and 621, would be convened at 7:00 P.M., on March 27, 2001, at the Holiday Inn, 304 South Hamilton Street, Painted Post, New York, to receive unsworn statements from the public concerning the permit application and the DEIS.
The hearing went forward as announced on March 27, 2001, with a member of the Department's Region 8 Staff serving as hearing officer. A total of 24 persons spoke. All but one speaker expressed opposition to the proposed project. The issues of primary concern raised at the hearing focused on increased truck traffic, noise impacts, dust and air pollution, and impacts to the community's water supply. Other issues raised included impacts to wetlands, wildlife species and their habitat, the need for the project, the availability of alternative sites for the proposed activity and the overall effect of the project on the quality of life enjoyed by the community. As provided in the Notice of February 21, 2001, the filing of written comments was permitted until ten days after the hearing which was April 6, 2001. A total of 15 letters and e-mails were received expressing the same concerns raised during the hearing of March 27th.
Hearing of July 25, 2001
A Notice of Supplemental Legislative Public Hearing and Notice of Issues Conference, dated June 8, 2001, was published in the ENB on June 13, 2001, and as a legal notice in the Star-Gazette on June 19, 2001, and The Leader on June 17, 2001. The Notice provided that a supplemental legislative hearing, pursuant to 6 NYCRR Parts 617, 621 and 624, would be convened at 10:00 A.M., July 25, 2001, at the Holiday Inn, 304 South Hamilton Street, Painted Post, New York, to receive additional oral or written unsworn statements from the public on the application and DEIS. The Notice further provided that the proceedings of the legislative public hearing held on March 27, 2001, and all written comments submitted thereto through April 6, 2001, would be adopted and made part of the record of the supplemental legislative public hearing of July 25th.
The hearing went forward on July 25, 2001, and was presided over by Administrative Law Judge Richard R. Wissler, the undersigned. A total of 24 persons attended the hearing. Six individuals spoke and one submitted a written comment. The concerns expressed focused primarily on traffic and noise impacts and the effect of the project on the character of the community.
Pursuant to the above published Notice of June 8, 2001, a pre-adjudicatory hearing issues conference was held at 2:00 P.M. on July 25, 2001, at the aforementioned Holiday Inn to determine what issues, if any, within the scope of the Department's regulatory purview required adjudication and to consider all timely filed applications for party status to participate in any adjudicatory hearing which might be convened in this matter. The participants at the conference were the Applicant, Department Staff and CPLA.
The Applicant was represented by Kevin M. Bernstein, Esq., of the law firm of Bond, Schoeneck & King, LLP, One Lincoln Center, Syracuse, New York 13202-1355, as well as Robert Dalrymple. Also attending on behalf of the Applicant was William Roe, P.E., a highway designer and traffic consultant.
The Department Staff was represented by Leo J. Bracci, Esq., Assistant Regional Attorney, in the Department's Region 8 Office, 6274 East Avon-Lima Road, Avon, New York 14414-9519. Other members of Department Staff also attending the issues conference were Department Mining Program Supervisor Steven Army, Regional Flood Control Engineer Scott Foti, wildlife biologist Jim Fodge and Mining Program specialist Linda Collart.
CPLA was represented by Peter G. Ruppar, Esq., of the law firm of Duke, Holzman, Yaeger & Photiadis LLP, 2500 Main Place Tower, Buffalo, New York 14202. Also attending on behalf of CPLA were wetlands specialist Donald G. Wilson of Wilson Environmental Technologies, Inc.; traffic consultant Dean Collins of FRA Engineering, P.C.; William L. Heitzenrater, a biologist and President of AFI Environmental, Inc.; Albert Benton, an archaeologist also with AFI Environmental, Inc.; and James C. Hayes, a mechanical engineer and member of CPLA.
The issues conference began with the identification of the various documents constituting the application and the draft permit, including certain documents referenced as special conditions in the proposed permit.
In accordance with the Notice of June 8, 2001, petitions requesting full party or amicus status pursuant to 6 NYCRR 624.5(b) were to be filed by July 11, 2001. Only one petition for full party status was received, being that of CPLA on July 11, 2001. No other petitions were received. The mandatory parties, the Applicant and Department Staff, were asked to indicate what, if any, objection they had as to the standing of CPLA as a party to the instant proceeding. The Applicant indicated that it had no objection with respect to CPLA's environmental interest in the matter and agreed that CPLA's petition comported with the requirements of 6 NYCRR 624.5(b)(1). Department Staff also had no objection with respect to the standing of CPLA.
Thereafter, the conference focused on the various issues asserted by CPLA to be both substantive and significant and therefore appropriate for adjudication pursuant to 6 NYCRR 624.4(c). These issues are articulated in Paragraph 17 of the CPLA petition and address the following matters: wetlands, noise, alternative site analysis, traffic, endangered and threatened species, deer wintering area, excavation into primary aquifer, visual impacts, segmentation, adequacy of archaeological investigation, floodplain and surface water.
The issues conference concluded at 8:23 P.M.
During the issues conference on July 25, 2001, it was determined that the property in question contained freshwater wetlands not currently designated or mapped by the Department. While the Department Staff indicated that it had not delineated the entire area of the unmapped wetland, it had ascertained that border of the wetland closest to the proposed life of mine area. A map of the entire property entitled "Mining Plan" and depicting the life of mine limit was identified at the issues conference as Exhibit 6. At the close of the conference on July 25th, I directed that Department Staff delineate, on a copy of Exhibit 6, the borders of the aforementioned unmapped wetland that are closest to the proposed mine area. This was done and received by me on August 6, 2001, with copies provided to all parties. This map is designated Exhibit 6A.
Moreover, at the issues conference, it was asserted by the Applicant that the U.S. Army Corps of Engineers ("ACOE") would be making a Determination of No Jurisdiction with respect to certain federal wetlands alleged to be on the subject property. I directed that I be provided with a copy of such determination immediately upon its availability. On August 7, 2001, I received a copy of a letter dated July 31, 2001, from the Regulatory Branch of the Buffalo District of the ACOE to Robert H. Dalrymple indicating that the ACOE has determined that they have no jurisdiction over the mining proposal and that a permit from them is not required. This letter is designated Exhibit 21.
Rulings on Party Status
The Applicant and the Department Staff are automatically full parties to the proceeding pursuant to 6 NYCRR 624.5(a).
With respect to the petitioner CPLA, as provided in 6 NYCRR 624.5(d) and as applicable to this matter, to be entitled to full party status a determination must be made that they have
- Filed an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (2);
- Raised a substantive and significant issue; and
- Demonstrated an adequate environmental interest.
CPLA is a voluntary association of residents of the hamlets of Coopers Plains and Long Acres in the Town of Erwin, Steuben County. Almost all of Coopers Plains is within one-half mile of the proposed mine site and some residents, who are CPLA members, live within 1000 feet of the site. Several Coopers Plains residents have a clear view of the site from their homes. Long Acres is southeast of Coopers Plains and within approximately one mile of the site. The Applicant proposes to use some of the streets and highways within Coopers Plains for the ingress and egress of trucks from the proposed mine site. CPLA's environmental interest, it asserts, are related to visual impacts, community character, traffic, noise, dust and dirt, loss of wildlife habitat, loss of wetlands, and impacts to groundwater and surface water bodies. At the issues conference, the Applicant indicated it had no opposition to CPLA's statement of environmental interest and Department Staff had no objection to CPLA's standing in this matter.
As will be discussed hereinafter, CPLA has raised two substantive and significant issues for adjudication and provided adequate offers of proof with respect thereto as to noise impacts and the adequacy of the alternative site analysis provided by the Applicant in the DEIS and other documents subsequently submitted by the Applicant.
Upon the record, I find that CPLA has met the requirements of 6 NYCRR 624.5(d) in that it has filed a petition that comports with the requirements of 6 NYCRR 624.5(b)(1) and (2), raised issues that are both substantive and significant, and demonstrated an adequate environmental interest. Accordingly, CPLA is granted full party status in this proceeding.
Standards for Adjudicable Issues
In accordance with the standards articulated in 6 NYCRR 624.4(c), an issue is adjudicable only if it relates to a dispute between the Department Staff and the Applicant over a substantial term or condition of a proposed draft permit, relates to a matter cited by the Department Staff as a basis to deny the proposed permit and such matter is contested by the Applicant, or is proposed by a potential party and 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 proposed project, such that a reasonable person would require further inquiry. In determining whether such sufficient doubt exists, the ALJ will consider the issue in light of the permit application and related documents, such as the DEIS and exhibits annexed thereto, the proposed 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.
Pursuant to 6 NYCRR 624.4(c)(4), where the Department Staff has reviewed a permit application and finds that the Applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party proposing any issue related to the project to demonstrate that that issue is both substantive and significant. This burden of persuasion is met by an appropriate offer of proof. As stated by the Commissioner, "the offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." (In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner dated April 2, 1982).
Moreover, with respect to SEQRA issues, as provided in 6 NYCRR 624.4(c)(6), where the Department, as lead agency, has required the preparation of a DEIS and a potential party has raised an issue concerning the sufficiency of the DEIS or the Department's ability to make the findings required pursuant to 6 NYCRR 617.9 regarding such issue, the determination to adjudicate the issue will be made in accordance with the standards set forth above. For the purpose of this proceeding, this means that the issue must be raised by CPLA and be both substantive and significant.
In the instant proceeding, the Department Staff has determined that, in light of the special conditions contained therein, there are no statutory or regulatory prohibitions or restrictions which would preclude issuance of the requested Mined Land Reclamation permit to the Applicant and that appropriate SEQRA findings could be made. It is CPLA's burden to demonstrate that the issues they have raised are adjudicable.
Issues Requiring Adjudication
Issues for adjudication have been raised with respect to noise that would be generated by the proposed project operations and the adequacy of the alternative site analysis provided by the Applicant.
Volume H of the DEIS prepared by the Applicant, contained in Exhibit 5B, consists of a noise impact assessment prepared by Hunt Engineering of Corning, New York. This assessment was revised by Hunt and submitted as part of Exhibit 12 at the issues conference. According to the revised assessment, to establish ambient sound levels, the following four receptor locations were selected:
Location 1: Intersection of Main Street and State Route 415
Location 2: Smith Hill Road along west side of Town Park
Location 3: Main Street along north side of Town Park
Location 4: On the railroad track east of Cohocton River
Existing ambient noise levels were measured at these locations with the following values of equivalent sound level (LEQ) observed:
Location 1: 64.1 dBA
Location 2: 69.0 dBA
Location 3: 64.0 dBA
Location 4: 60.3 dBA
Thereafter, the revised assessment provides an analysis of noise impacts associated with pit operation concluding that maximum noise levels experienced at receptors from mining or clearing operations would be 62 dBA and from crushing and screening operations would be 50 dBA. In apparent reliance on an assertion contained in a Department Program Policy and Guidance Memorandum entitled "Assessing and Mitigating Noise Impacts", DEP-00-1, rev. 2/2/01, at page 14, that "the addition of any noise source, in a non-industrial setting, should not raise the ambient noise level above a maximum of 65 dBA", the Hunt study concludes that in both cases, the pit operation associated noise impacts are less than this Department recommended maximum limit and less than the measured existing ambient noise levels.
CPLA advanced several arguments challenging the noise impact analysis provided by the Applicant which are discussed in its petition. The first of these arguments asserted that the Applicant would not be able to comply with the Town of Erwin noise ordinance. This local law, Section 130-82 of the Town of Erwin Zoning Law, prohibits sound levels across a noise producer's lot line that are more than seven decibels above ambient levels for more than six minutes in any sixty minute period. This local law perhaps presents an additional regulatory requirement the Applicant will have to meet, but is beyond the scope of the instant inquiry. It is, however, relevant to our discussion here to the extent that it provides some insight into community sentiment regarding the impact of noise on the quality of life enjoyed by the residents of the Town of Erwin.
The CPLA petition also asserts that the Applicant's noise impact analysis is inadequate because it does not consider noise impacts associated with truck traffic. The Mining Plan Narrative, Part IV of Volume D, DEIS Book 1, Exhibit 5A, indicates, and discussion at the conference disclosed, that there is an existing operating sand and gravel mine just to the north of the proposed site. Trucks going to and from this mining operation are currently utilizing the same roads that trucks going to and from the Applicant's site will use. Such increased truck use could have a cumulative and measurable impact on ambient noise levels.
Moreover, as the Mining Plan Narrative also points out, the proposed site is currently flat agricultural land consisting of corn, pasture and fallow fields. It is bounded on the east by the Cohocton River and the hamlet of Coopers Plains. To the south and west it is bounded by a very steep and wooded hillside which rises some 700 feet above the proposed mine site. At the site visit conducted in this matter on July 25, 2001, just prior to the issues conference, the noise from trucks entering and exiting the mining operation to the north could be heard and it was apparent that the topography of the site had an amphitheater effect, accentuating and focusing these noise impacts.
CPLA member James Hayes also spoke at the issues conference. Mr. Hayes is a mechanical engineer with a degree from the Rochester Institute of Technology who was with Corning Incorporated for 35 years where he attained the position of Senior Project Engineer in the Company's Materials Engineering Department. He provided a copy of a study he had done challenging the revised noise analysis of Hunt Engineers. His study was received as Exhibit 18. Essentially, it argues, inter alia, that the receptor sites chosen by Hunt to establish ambient noise levels are inappropriate because they are noisy locations that do not accurately reflect ambient noise levels in Coopers Plains, in fact, suggesting falsely high levels. Moreover, the receptor sites selected are not at the boundary of the Applicant's property nor at the point of use of contiguous property owners and, therefore, do not comport with the protocols suggested in the aforementioned Department Program Policy and Guidance Memorandum. For his analysis, Hayes selected three receptor sites along the north property line of the Applicant's property. The Hayes study suggests that had the receptors in the Hunt study been located along the Applicant's property line, ambient noise levels of less than 50 dBA would have been observed. If this is indeed the case, then in accordance with the Department Program Policy and Guidance Memorandum, ambient noise at the receptors should not exceed 56 dBA, for as the Program Policy indicates, "In non-industrial settings the SPL [sound pressure level] should probably not exceed ambient noise by more than 6dB(A) at the receptor."
In delineating the general functions, powers and duties of the Department and the Commissioner, Section 3-0301(1)(i) of the Environmental Conservation Law (ECL) states that the Commissioner shall have the power to provide for prevention and abatement of all water, land and air pollution including that related to noise. Moreover, 6 NYCRR Part 422, which discusses the elements of a mined land-use plan, contains certain provisions which address noise control. Generally, 6 NYCRR 422.2(a) requires that the mining plan include a description of "the applicant's proposed method of mining including proposals for minimizing the effect of mining on the environment and on the property, health, safety and general welfare of the people of the State." This would clearly include noise control. More specifically, 6 NYCRR 422.2(c)(4)(i) provides that noise control may in part be accomplished "through the utilization of equipment which is adequately muffled to prevent excessive noise and vibration; and through the use of screening for control of dust and/or noise." With regard to screening, 6 NYCRR 422.2(c)(4)(iii) states that it "may consist of either artificial or natural barriers such as berms, fences, shrubs, trees or any combination of these which have the ... effect of reducing noise levels...." Finally, the Department has issued the above mentioned Program Policy and Guidance Memorandum entitled "Assessing and Mitigating Noise Impacts", DEP-00-1, rev. 2/2/01, which presents noise impact assessment methods, examines the circumstances under which sound creates significant noise impacts, and identifies avoidance and mitigative measures to reduce or eliminate noise impacts.
With respect to SEQR, findings must be made pursuant to 6 NYCRR 617.11(d) that, inter alia, consider the relevant environmental impacts, facts and conclusions disclosed in the final EIS and certify that the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable. Since 6 NYCRR 617.2(l) defines "environment" as the physical conditions that will be affected by a proposed action including noise, this mandate would necessarily include a consideration of noise impacts.
The Applicant has suggested certain mitigation measures which it argues will reduce or eliminate noise impacts. These include conduct of mining operations at distances from neighboring properties sufficient to allow for adequate noise drop-off, the noise shielding effect of the woods along the Cohocton River, the construction of berms, the use of mufflers on diesel equipment and self-adjusting backup alarms on mobile equipment.
However, the record makes clear that there is an issue of fact as to the appropriateness of the location of the sound receptors relied upon by the Applicant in its noise impact analysis. This is of critical importance because it is from the readings obtained from appropriately placed receptors that the ambient sound level is determined. And it is this ambient sound level which is the baseline against which the effects of additional noise impacts are judged. Since the actual ambient sound level has not been adequately determined, it is impossible at this time to ascertain whether or not the mitigation measures proposed by the Applicant are appropriate to the circumstances.
Ruling No. 1: Inasmuch as the appropriate ambient noise level has not been reasonably established, the impacts of truck noise from the current and proposed mining operations not accounted for, and the effects of site topography on noise levels not considered, noise impacts are an issue that is both substantive and significant and therefore adjudicable.
Alternative Site Analysis
CPLA argues that the DEIS prepared by the Applicant is inadequate on its face in that it fails to provide a description and evaluation of reasonable alternative sites for the proposed sand and gravel mine, in contravention of the requirements of 6 NYCRR 617.9(b)(5)(v). In support of its argument, CPLA points out that the DEIS at Book 1, Volume C, Exhibit 5A, limits discussion of possible alternative sites to a single sentence: "No other sites in the Town of Erwin have been identified which contain a similar gravel deposit located with greater buffer from populated areas." In addition, CPLA points out in its petition that at the time the DEIS was being prepared, the Applicant had an option to purchase on a 220 acre parcel in the Town of Campbell, known as the Elmer Smith property. This option to purchase was obtained on April 18, 2000, and the DEIS was accepted by the Department on December 19, 2000, some seven months later. Moreover, the DEIS at Book 2, Volume E, Exhibit 5B, contains a copy of a letter dated June 20,2000, from Department Staff to a Jim Weaver of Grand Canyon Ecological Services, a consultant to the Applicant, wherein a New York State Natural Heritage Review of two potential mining sites in the Towns of Campbell and Erwin are discussed.
In subsequent submissions the Applicant offered additional comments regarding the alternative analysis. Exhibit 9 is a letter dated February 12, 2001, from the Applicant to the Department consisting of responses to issues raised during the public comment period on the DEIS. In addressing the alternatives analysis contained in Volume C, Exhibit 5A, the Applicant commented, "The Alternatives Analysis prepared by the Applicant, an operator of other sand and gravel facilities in New York State, bases its conclusions on its experience and expertise in the field." Noting that 6 NYCRR 617.9(b)(1) states that EISs need not be encyclopedic, the Applicant asserts that the requirements of SEQR are satisfied by the DEIS as submitted.
Exhibit 10 is a letter dated April 26, 2001, from the Applicant to Department Staff containing comments on issues raised at the March 27, 2001, legislative hearing. A section of the letter discusses alternative sites from a general mining industry perspective. These include the general practice of acquiring options on potential sites as they become available; the time consumed in a consideration of the variables at a site such as quantity and quality of reserves, transportation routes and the likelihood of obtaining permits; and State Department of Transportation requirements. The letter also points out that the Applicant has spent considerable time and money in evaluating the present site and has determined that this site has high quality reserves meeting its requirements. "At this stage," the letter states, "the suitability of other potential sites is purely speculative."
Exhibit 12 is a letter dated June 21, 2001, from the Applicant to Department Staff responding to a Department request for further information. At page 3 of this letter is a further discussion of alternative sites which essentially reiterates the comments of the letter of April 10, 2001, Exhibit 10. It does not contain an analysis of the Elmer Smith property but merely repeats the statement of the previous letter that "at this stage, the suitability of other potential sites is purely speculative." In reference to this bare assertion, it concludes with the following paragraph:
"The applicant has no other options or ownership of gravel lands in the Town of Erwin. The applicant does have an option on the Elmer Smith farm in the Town of Campbell. This farm is bounded on the North and East by the Cohocton River, on the South by the Curtis Hollow Road, and on the West by Interstate Route 86. However, as noted above, whether this site could be permitted and whether this site could provide useable reserves is speculative at this time. Even if it could be permitted, there is a current need for high quality reserves such as those found on the Scudder farm."
At the issues conference these same arguments were put forth by the Applicant with the assertion that the record was adequate for any findings to be made under the SEQR regulations. Department Staff concurred in this position.
While the format of a DEIS is flexible and need not be encyclopedic, certain elements must be included within it, among them an adequate discussion of alternative sites for the proposed activity. As 6 NYCRR 617.9(b)(5)(v) mandates, the DEIS must 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." In accordance with 6 NYCRR 617.9(b)(5)(v)('g'), for a private project sponsor such as the Applicant, such site alternatives can be limited to parcels owned by or under option to the Applicant.
As is indicated in the record, the Applicant has extensive expertise in sand and gravel mining operations, has been in the sand and gravel business for many years and has other sand and gravel operations within the State including an operation in Chemung County which it used for comparative purposes in preparing its noise impact assessment for the DEIS. In addition, it has an option to purchase on a 220 acre parcel in the Town of Campbell which was acquired in April 2000 and which may be appropriate for a sand and gravel operation. The Applicant has indicated that various factors must be considered in evaluating a site for a potential sand and gravel mine. These include a consideration and assessment of the quantity and quality of the reserves at the site, transportation routes to and from the site and the costs associated therewith, State Department of Transportation requirements and local construction and building requirements. The analysis of these factors with respect to any other property owned by or under option to the Applicant, and particularly the Elmer Smith farm, was not provided in this matter. Such a requirement for the instant DEIS is not unreasonable considering the objectives and capabilities of the Applicant. Without this alternative site analysis, the comparative assessment required under 6 NYCRR 617.9(b)(5)(v) cannot be made nor any finding pursuant to 6 NYCRR 617.11(d).
Ruling No. 2: The failure of the DEIS to provide a description and evaluation of reasonable alternative sites for the proposed sand and gravel mine, particularly the Elmer Smith farm parcel, to a level of detail sufficient to permit a comparative assessment of the alternative site with the proposed site is an issue that is both substantive and significant and therefore adjudicable.
Issues not Requiring Adjudication
The existence and extent of both State and federal freshwater wetlands at the site was raised by CPLA. Its expert, Wilson Environmental Technologies, Inc., stated that based upon its examination of aerial photographs and other documentation, as well as its investigation of the site, unmapped State wetlands exceeding 12.4 acres in area were present at the site and in proximity to the proposed mine operation. Moreover, they asserted that a drainage ditch at the north end of the site was a federal wetland requiring a permit from the U.S. Army Corps of Engineers ("ACOE").
The Applicant argued that any wetlands at the site had been accurately delineated. Acknowledging that the drainage ditch could come under federal wetlands jurisdiction, the Applicant indicated that the mining plan had been changed to avoid any State or federal wetlands. The Applicant also asserted that the ACOE would be issuing a Determination of No Jurisdiction in the matter within a few days. I directed that I be provided with a copy of this letter immediately upon its availability and that it would be part of the record of the issues conference. The ACOE letter was received by me on August 7, 2001, and entered in the record as Exhibit 21.
Department Staff acknowledged that the site contained unmapped wetlands in excess of 12.4 acres in area and indicated that they would in the future be commencing freshwater wetlands map amendment proceeding pursuant to 6 NYCRR 664.7. However, while they had not as yet determined the entire perimeter of the unmapped wetland, they had determined that part of the perimeter closest to the Applicant's proposed life of mine area and could state unequivocally that the perimeter of the life of mine area was at all points more than 100 feet from the perimeter of the unmapped wetland. I directed that this known section of the perimeter be delineated on a copy of Exhibit 6 which depicts the proposed life of mine area. This was done and received by me on August 6, 2001, made part of the record of the issues conference and designated Exhibit 6A. A visual examination of Exhibit 6A reveals that the perimeter of the unmapped wetland is at all points more than 100 feet from the proposed life of mine perimeter. With respect to federal wetlands, Staff pointed out that either obtaining the No Jurisdiction determination or obtaining the appropriate ACOE permit and water quality certification from the Department was a special condition of the draft permit, Special Condition 14, which would have to be complied with before any mining activity could commence.
Ruling No. 3: There are no adjudicable issues raised with respect to wetlands. The proposed mining project does not impact State wetlands and the ACOE has made a Determination of No Jurisdiction as to the proposed project.
Various concerns were raised by CPLA with respect to traffic impacts resulting from the proposed project, primarily challenging the scope and sufficiency of the Traffic Impact Assessment submitted by the Applicant as part of the DEIS, contained in Book 4, Volume N, Exhibit 5D.
CPLA argued that the Assessment assumed a truck traffic volume level of 10 round trips or 20 one way trips per hour, 10 trips into the site per hour and 10 trips out of the site per hour. Referencing the Air Quality Analysis, DEIS Book 2, Volume I, Exhibit 5B, CPLA pointed out that this analysis assumed a plant output of 400 tons per hour. Further, CPLA argued, assuming the use of trucks each with a load capacity of 20 tons, 40 one way truck trips per hour would be required to move this 400 ton per hour output, 20 trips into the site per hour and 20 trips out of the site per hour. Concluding, CPLA asserted that since for the air impacts assessment portion of the DEIS the Applicant had assumed a truck traffic volume level of 40 one way trips per hour, the same volume of 40 one way trips per hour should be assumed for any traffic impact analysis. Department Staff, however, pointed out that Special Condition 1 of the draft permit incorporates by reference the Environmental Assessment Form (EAF) dated January 19, 2000, with revised acreage totals on Pages 2 and 3 received July 13, 2001, Exhibit 2 and Exhibit 5A. Section B(1)(g) of the EAF indicates that upon completion of the project the maximum number of vehicular trips to be generated per hour will be 10. As is apparent from the DEIS, this means 10 round trips per hour, 10 trips into the site per hour and 10 trips out of the site per hour for a total of 20 one way trips per hour. With this understanding, CPLA conceded that the matter of truck trips per hour was academic. However, in order to avoid any confusion in the future and in accordance with the EAF, I would suggest that Staff include in the permit a specific special condition clearly indicating that the total number of one way truck trips, both to and from the site, not exceed 20 trips per hour.
CPLA also raised concerns over the road geometry of the project affected highways and intersections. Through its expert, FRA Engineering, P.C., CPLA criticized the DEIS for failing to provide sufficient information about existing road conditions including pavement widths, shoulders, horizontal or vertical alignment, intersection angles, road grades, curves and sight distance restrictions. These observations, as well as those that follow, are contained in its letter of March 26, 2001, and annexed to the CPLA petition. In addition, the DEIS was criticized for failing to provide any information as to the existing condition of the subject roadways. Field observations by FRA Engineering indicated that some of the roadways were not in good condition with alligator cracking suggesting poor subsurface drainage. Such deterioration, they argued, would only be accelerated by the increased truck traffic occasioned by the new mine. With regard to the Level of Service calculations provided by Hunt Engineers in the DEIS, FRA Engineering conceded that they were performed in accordance accepted methodologies. Their only criticism was with regard to the Peak Hour Factor ("PHF") selected by Hunt. The PHF, according to FRA, is a numerical term that accounts for traffic peaking tendencies within the highest hour and should normally be a decimal less than 1.00. Hunt had selected a PHF of 1.00. However, FRA concluded that in this case had the correct PHF been used the results would have had a negligible effect on the Levels of Service computed by Hunt. FRA also criticized the Hunt study for noting the relatively high number of accidents at the intersection of Route 415 and Meads Creek Road but then failing to compute the accident rate for the intersection and comparing this result with the statewide accident rate for similar intersections.
Counsel for the Applicant pointed out that the Traffic Impact Assessment in the DEIS had been forwarded to the State Department of Transportation ("DOT") for their review. By letter dated February 15, 2001, Gary Funk, a Regional Traffic Engineer with DOT, advised Department Staff that "The accuracy of the traffic report is acceptable. The traffic generated by the proposed pit will have a very insignificant impact on the existing traffic system. The consultant points out that there is a pattern of right-angle accidents at the intersection of State Route 415 and Meads Creek Road. We are aware of this pattern and will be installing a flashing signal at this intersection this year to address the problem." This letter was introduced at the issues conference as part of Exhibit 10. The DOT letter also indicates that copies of it were sent to David G. Blackstone of the Town of Erwin Planning Board and Rita McCarthy, the Town of Erwin Manager.
Counsel for the Applicant further pointed out that there had been other correspondence with Town and County officials regarding the traffic impacts of the proposed mine and that this had been included in the Traffic Impact Assessment in the DEIS. In particular, this correspondence includes a memorandum dated January 31, 2000, from Howard J. Houghtaling, Town of Erwin Superintendent of Highways to the Town of Erwin Planning Board stating "I have reviewed the proposed traffic plan for the entrance/exit off Smith Hill Road for the above-referenced plan and find the ingress/egress, curb cuts and circulation to be adequate." The memo goes on to suggest the Applicant pave certain areas along Smith Hill Road and install appropriate signage on both Curtis and Smith Hill Roads. Also included in the aforementioned correspondence is a memorandum dated March 2, 2000, from S. Catherman, P.E., Department of Public Works Engineer for Steuben County to Vincent Spagnoletti, Commissioner of the Department of Public Works of Steuben County, reporting on the condition of the Smith Hill Road bridge over the Cohocton River in the Town of Erwin. In addition a memorandum dated February 29, 2000, is included from Greg Hefner, Planning Director for Steuben County to the Town of Erwin Planning Board stating, "I have concluded that there are no countywide impactsof the proposed facility" and suggesting the Town request the installation of a truck wash at the site and insure that appropriate measures are taken to prevent "erosion and sedimentation from the site."
On behalf of the Applicant, William Roe, P.E., a highway designer, provided further comment in support of the Hunt Engineers traffic impact study which comprises the major part of the Traffic Impact Assessment in the DEIS. Roe pointed out that the proposed truck route to and from the Applicant's site was already being used as a route for trucks to and from the active gravel mining operation to the north of the Applicant's site and had been so used for more than four years. Roe was asked to address the Level of Service ("LOS") calculations provided in the Hunt study. As the study states, LOS is a measure of how well traffic is moving through an intersection and is a function of the amount of time each vehicle is delayed in traveling through an intersection. The various levels of LOS are denominated A through F. The highest LOS , A, would entail a delay of less than 10 seconds while the lowest LOS, F, would entail a delay of more than 50 seconds. An LOS rated B entails a delay greater than 10 seconds but less than 15 seconds while an LOS rated C entails a delay greater than 15 seconds but less than 25 seconds. An LOS of C is generally considered to be an acceptable operating condition for peak hour traffic volumes. Upon an examination of the proposed truck route and the intersections contained therein, the Hunt study determined the LOS to be at level B, assuming an increase in truck traffic generated by the mining operation of 10 inbound and 10 outbound trips per hour. Roe was specifically asked what the LOS would be if an increase in truck traffic generated by the mining operation of 20 inbound and 20 outbound trips were assumed. Given such a scenario, he suggested that the LOS would probably be at most a high B, and without having gone through the analysis, would not expect an LOS even meeting the acceptable LOS C threshold.
As to traffic impacts, Department Staff reiterated the points already made with respect to the permit condition regulating and restricting the level of truck traffic to and from the proposed site as well as the review opportunities previously afforded the various State, county and local agencies with jurisdiction in the matter and their several responses or lack thereof.
Ruling No. 4: There are no adjudicable issues raised with respect to traffic impacts. Although it needs to be articulated with greater clarity, a special condition in the draft permit regulates and restricts the level of truck traffic to and from the proposed site. Moreover, the LOS for the proposed truck route to and from the site is within acceptable parameters. Finally, the various agencies of State, county and local government with jurisdiction in the matter have had ample opportunity to review the traffic impacts analysis provided in the DEIS and have either commented favorably or refrained from comment.
Endangered and Threatened Species and Deer Wintering Area
In its petition, CPLA identified the great blue heron, timber rattlesnake and bald eagle as threatened or endangered species and the yellow-throated warbler as a protected species observed on the Applicant's property and argued that no analysis had been done with respect to the detrimental effect the proposed mining operation would have on the habitat of these fauna. During the issues conference it was also suggested that the eastern massasauga rattlesnake, an endangered species, might also be present on the site. Moreover, CPLA argued that white-tail deer utilize the steep hillside on the Applicant's property as a wintering area and forage for food in the adjacent fields, at times crossing them for access to the Cohocton River as a source of water.
CPLA challenged various findings in the environmental impact study prepared by Grand Canyon Ecological Services of Wellsboro, Pennsylvania, with respect to fauna and existing habitats on the site. The Grand Canyon study is contained in the DEIS, Book 2, Volume E, Exhibit 5B. The study identifies two habitats at the site, a terrestrial habitat and a wetland habitat. This was objected to by CPLA's expert, William Heitzenrater of AFI Environmental, who asserted that there is a floodplain habitat at the site. No further discussion of the possible implications of this type of habitat was raised at the conference, however.
Referring to a letter of June 20, 2000, from Department Staff to Grand Canyon concerning a review of the Natural Heritage Program for New York State which arrives at the same conclusion, the Grand Canyon study concludes that "There were no documented flora or fauna on this site that would be considered endangered, threatened, or rare. No significant habitats were identified during this review." Heitzenrater objected to this in the first instance arguing that the yellow-throated warbler was a species on the New York State list of special concern and that the habitat at the sight was of the type favored by the species. Later, he clarified this assertion by noting that the bird was on the New York Natural Heritage Program list with a Global Rank of G5 and a State Rank of S1. Second, with respect to rattlesnakes, he noted that while he had never heard of a reported observation of the eastern massasauga, an endangered species, as far south as the Applicant's property, he did know of reported observations of timber rattlesnakes, a threatened species, in the State game forest area, the Erwin Wildlife Management Area, immediately to the south of the site.
With respect to deer wintering, Heitzenreiter discussed the tendency of deer to "yard up", generally on south facing slopes, to protect themselves with the available cover and expose themselves to the greatest amount of heat. If the deer are forced out of their yard area, they will not return until the following winter. In the meantime, loss of the wintering area could result in the deprivation of food causing the deer to experience the loss of body weight and possible death. The Grand Canyon study does not address these concerns, he argued.
Department Staff Senior Wildlife Biologist Jim Fodge spoke to the concerns raised by CPLA, first addressing the issue of a deer wintering area at the site. Initially, he noted that he had worked with the Departments's Deer Management Program for 29 years and that during the late 1970's a heightened concern for deer wintering, based upon certain studies in the Adirondacks and more northern climates, had led to a survey and subsequent field visits to various deer wintering areas in Steuben and other surrounding counties in western and central New York. During that survey, a deer wintering area was identified in a ravine of hemlock trees located partially on the Applicant's property and partially on the Erwin Wildlife Management Area. This hemlock cover resulted in lower snow depths in winter providing an area for deer to rest. Fodge and others visited the area in the winter of 1980-81 and confirmed that it was being used by deer as winter habitat. The area was mapped at the time and determined to be confined to the steep hillside to the south and east of the Applicant's property and did not extend into the agricultural land at the base of the hillside, the site of the proposed mining operation. Subsequent observations of deer wintering behavior, including radio telemetry research, Fodge said, have shown the areas originally surveyed in western and central New York are less significant as deer wintering areas than originally thought. Indeed, Fodge could not say whether or not deer at this time utilize the hemlock ravine as winter habitat. However, he did reiterate that this area, even if still utilized by deer for winter habitat, did not touch any area of the proposed mining operation.
With regard to endangered or threatened species, Fodge pointed out that neither the great blue heron nor the yellow-throated warbler are on the list of endangered or threatened species or species of special concern enumerated by the Department at 6 NYCRR 182.6. The great blue heron is common throughout New York State, he said, and he was unaware of any indication that it nests in the vicinity of the Applicant's property. Citing two generally accepted ornithological treatises, Breeding Bird Atlas and Bull's Birds of New York, Fodge stated that although the yellow-throated warbler has been expanding its habitat northward for a number of years, it is rarely sighted and very rarely nests in New York. Only three possible breeding sites have been identified for the species, one in Alleghany State Park, one near the Hudson River, and the last in the Adirondacks. Bald eagles are a threatened species pursuant to 6 NYCRR 182.6(b)(6) and have been sighted in the area, particularly along the Canisteo and Chemung Rivers and in the Corning area, but, Fodge said, there is no evidence that it nests in the area of the Applicant's property.
Fodge was not aware of any rattlesnake dens on the proposed site nor in close proximity to it. The closest dens, he asserted, were near the Village of Painted Post and in the Canisteo Valley, each a number of miles away from the Applicant's property. With particular reference to the eastern massasauga rattlesnake, both Fodge and Heitzenrater agreed that the subject property was too far south for the species and that the only New York locations they knew for it were in Burgen Swamp in Genesee County and Cicero Swamp in Onondaga County.
In response, the Applicant reiterated the findings of the Grand Canyon study and asserted that CPLA had failed to meet its burden to establish either threatened and endangered species or deer wintering area as an issue for adjudication.
Ruling No. 5: There are no adjudicable issues raised with respect to endangered or threatened species or with respect to deer wintering area. Of the various species cited by CPLA as endangered or threatened or of special concern, none have been shown to use or require Applicant's property for habitat. With respect to deer wintering, any area of the proposed site, if so used by deer at this time, does not intersect with any area impacted by the proposed mining activity.
Floodplain and Surface Waters
CPLA expressed concern regarding the Applicant's proposed conduct of mining activity within the 100 year floodplain of the Cohocton River and the possible location of structures within the floodway. In particular, CPLA challenged the accuracy with which the floodway was depicted on plans for the site and the adequacy with which the floodway would actually be delineated in the field prior to the commencement of any mining activity. In addition, CPLA expressed concern over the elevation of proposed mining related structures with respect to FEMA requirements. Moreover, given the topography of the site, CPLA argued that the proposed mining activity required a SPDES general permit for storm water discharges generated off the property but flowing across the property notwithstanding the assertion by the Applicant that on site storm water discharges would be contained on the property. Following discussions between the parties these issues were resolved by the amendment of certain special conditions in the draft permit which were agreed to by the Applicant.
With respect to floodway issues raised, Special Condition 7 of the draft permit which read, "The regulatory floodway, as defined by the appropriate Flood Insurance Rate Map issued by the National Flood Insurance Program, that is displayed on project plans shall be located in the field. ", was amended to read, "Prior to engaging in any regulated activity under this Permit, the regulatory floodway, as defined by the appropriate Flood Insurance Rate Map issued by the National Flood Insurance Program, that is displayed on project plans and maps shall be located in the field." (Emphasis supplied.)
With respect to FEMA mandated elevations for new construction in the floodplain, Special Condition 10 of the draft permit which read, "Construction of buildings and other structures, as well as the bulk storage of petroleum products, which occurs beyond the floodway but within the regulatory floodplain, should be at least two feet above the base flood elevation (BFE).", was amended to read, "Construction of buildings and other structures as defined in FEMA regulations, as well as the bulk storage of petroleum products, which occurs beyond the floodway but within the regulatory floodplain, should be at least two feet above the base flood elevation (BFE)." (Emphasis supplied.)
With respect to storm water issues, CPLA agreed that Special Condition 17 of the draft permit adequately addressed their concerns. This condition provides as follows: "Prior to engaging in any regulated activity under this permit, the permittee shall complete all steps required to qualify for coverage under the 'SPDES General Permit for Storm Water Discharges Associated with Industrial Activity except Construction Activity' (GP-98-03)."
Ruling No. 6: There are no adjudicable issues raised with respect to floodplain and surface waters. Each concern raised by CPLA has been adequately resolved by an appropriate special condition in the permit.
Adequacy of Archaeological Investigation
CPLA challenged the adequacy of the archaeological investigation conducted by R. J. Murphy & Associates of Lowville, New York, on behalf of the Applicant, comprising Volume L of Book 2 of the DEIS, Exhibit 5B. Through its expert, Albert Benton, an archaeologist with AFI Environmental, CPLA argued that the Murphy survey concludes that characteristics of the proposed site suggest a high probability of prehistoric sites. This is an apparent reference to a statement in the Murphy study at page 10 which provides, "The physiographic characteristics of the proposed site suggests a high probability of prehistoric occupation." Indeed, the Murphy study points out that other archaeological surveys of the area had concluded there were six prehistoric and historic sites within one mile of the proposed mine, with two prehistoric sites located within 1000 feet of the Applicant's property. As a result, Murphy field personnel established a transect grid on the Applicant's property using a 50 foot interval. Test pits 20 inches wide and 3 feet deep were then dug at 50 foot intervals along the transects and the excavated material screened and examined. Given the archaeological sensitivity of the area, CPLA argued that a 50 foot interval was too large. Moreover, they argued that the area excavated was along the present course of the Cohocton River and did not adequately allow for the historic meandering of the river, implying that other areas on the site should have been excavated as well.
The Applicant argued that the Murphy survey was conducted in accordance with the established standards and methodologies propounded by the New York Archaeological Council and adopted by the New York State Office of Parks, Recreation and Historic Preservation (OPRHP). Moreover, the Applicant pointed out that the Murphy survey was submitted to the OPRHP for its review and by letter dated November 22, 2000, that office concluded, "Based upon this review, it is OPRHP's opinion that your project will have No Impact upon cultural resources in or eligible for inclusion in the State and National Registers of Historic Places." This letter is included in DEIS Volume L, supra.
Department Staff noted its obligation to comply with Section 14.09 of the Parks, Recreation and Historic Preservation Law (PRHPL) and that pursuant thereto the Murphy survey has provided to the OPRHP for their review with the conclusion reached as pointed out by the Applicant.
Ruling No. 7: There are no adjudicable issues raised with respect to the adequacy of the archaeological investigation conducted in this matter. The Murphy survey was conducted in accordance with accepted protocols and methodologies and was reviewed by the OPRHP in accordance with PRHPL Sec. 14.09. The OPRHP concluded that the proposed mining project would have "No Impact upon cultural resources in or eligible for inclusion in the State and National Registers of Historic Places."
Excavation Into Primary Aquifer
CPLA argued that the DEIS was insufficient in that it failed to adequately assess the impact of the proposed mine on groundwater quality or quantity in the surrounding area. The mine, they noted, was over a primary aquifer and proposed mining activities would entail excavation directly into this water bearing stratum. This, they argued, could adversely impact drinking water wells in Coopers Plains as well as the approximately 20,000 people downstream of the Cohocton River who rely on this aquifer for their drinking water. Moreover, given the nature of the industrial processes associated with mining and the types of machinery that would be used and maintained, the threat existed that the aquifer could be contaminated by petroleum spills, sewage releases and turbidity.
In support of CPLA's position, William Heitzenrater of AFI Environmental noted that the DEIS failed to contain an accurate survey of the residents in close proximity to the proposed project who utilized wells for drinking water. He also expressed concern for petroleum spills that could contaminate the aquifer resulting from parked employee vehicles, refueling of equipment, leaking hydraulic equipment and the storage of petroleum products on the site.
The parties were asked to address the hydrogeologic connection between the area on the east side of the Cohocton River, where the community of Coopers Plains is located, and the area on the west side of the Cohocton, where the proposed mine is located. The Applicant pointed to the Addendum to the hydrogeologic evaluation of the site provided by its expert, Moody and Associates of Meadville, Pennsylvania, and found in Volume F of DEIS Book 2, Exhibit 5B. This study asserts that local groundwater flows through the proposed site and through the hamlet of Coopers Plains on the other side of the Cohocton are both to the south and east and parallel to the River. The Cohocton River itself, however, forms a hydrologic boundary between the east and west sides of the River. This position was concurred in by Department Staff members Linda Collart, a Mined Land Specialist, and Steven Army, a Mining Program Supervisor. They pointed out that this was a discharge-recharge area along the Cohocton River for the aquifer, with the River itself serving as a boundary between the east and west sides of the River. During periods of discharge, groundwater flows would be from land areas on the east and west sides of the River toward and into the River and, during periods of recharge, groundwater flows would be from the River toward the land areas on the east and west sides of the river. There is no communication back and forth between groundwater flows on the east side of the Cohocton with groundwater flows on the west side of the Cohocton. Accordingly, if groundwater was contaminated on the Applicant's property it could not reach and contaminate the groundwater of Coopers Plains. Moreover, there are no wells downgradient from the Applicant's property and on its side of the Cohocton River. CPLA offered no proof to challenge the assertion that the Cohocton forms a hydrogeologic boundary in the area other than to reiterate its position that the DEIS evaluation of groundwater flows was inadequate.
With regard to potential petroleum spills, the Applicant noted that in accordance with federal and State regulations, its mining plan sets forth what in essence is a Spill Prevention Countermeasure Control ("SPCC") plan. With respect to the repair and maintenance of hydraulic equipment, motor vehicles and motorized equipment at the site, referring to Exhibit 10, a letter from the Applicant dated April 26, 2001, to Department Staff, the Applicant pointed out that there would be no discharge from any shop facility at the site. Major repairs will be made at the Applicant's central shop facility in Elmira and no vehicles will be washed at the proposed site. As to any issue with respect to sewage generated at the site, the Applicant noted that it will be purchasing the home of the former owner of the property and that employees will utilize the septic facilities at this premises until other facilities are appropriately permitted and built.
Department Staff noted that the Applicant will be required to comply with the requirements of 40 CFR Part 112 and provide an approved SPCC plan. In addition, with respect to the storage and use of petroleum at the site, the Applicant will be required to comply with the provisions of 6 NYCRR Parts 612 through 614 regarding, inter alia, the construction, installation and secondary containment of petroleum bulk storage facilities.
Regarding the issue of the excavation into a primary aquifer, Staff pointed out that in a study authored by the Department's Division of Water in 1987, entitled Update New York Groundwater Management Program, it was concluded that there was no evidence that mines are actually causing significant water quality or quantity problems in the State. A similar conclusion was expressed by Thomas G. Kump, P.E., the Director of Environmental Health Services for the Chemung County Health Department in a letter dated March 2, 2000, to Chemung County Executive G. Thomas Tranter, Jr., and part of Exhibit 10. In this letter, Kump notes that after a review of County records with respect to mining generally and the Applicant's operations in particular in Chemung County, that "no documentation exists to support that either has had a negative impact on the groundwater."
On the issue of turbidity, Department Staff asserted that even if some fines created as a result of mining operations found their way to groundwater, given the 100 foot buffer between any proposed mining activity and the Cohocton River, they would settle out in pore spaces or unconsolidated deposits before reaching the River.
Department Staff also asserted that the proposed mining operation would not have an adverse impact on well levels in the area. For this to occur, there would have to be dewatering of the area as a result of the mining activity. However, this is not the case here in view of the fact that the Applicant proposes to employ a closed loop processing system where water used in processing material is stored in a retention pond for reuse and, in effect, returned to the aquifer.
Ruling No. 8: There are no adjudicable issues raised with respect to excavation into a primary aquifer. The Cohocton River forms a hydrogeologic boundary between the proposed mining site and the residents of Coopers Plains. Groundwater flows on one side of the River do not communicate with groundwater flows on the other, precluding the possibility of the contamination of Coopers Plains groundwater by groundwater flows from the Applicant's property. Petroleum use, storage and potential spills on the site have been adequately addressed by the spill prevention plan provided in the mining plan, the maintenance facilities proposed and through the restrictions and mandates imposed by various federal and State regulatory provisions. Septic wastes generated at the site will be appropriately disposed. Well levels in the area will not be effected inasmuch as the proposed mining operation utilizes a closed loop system for any water used in processing material. Turbidity caused by mining activity will be obviated by the lack of any off-site discharge from mining operations and by the existence of a 100 foot buffer between proposed mining operations and the Cohocton River.
CPLA argued that the Visual Impact Assessment prepared by Hunt Engineers comprising Volume J of Book 2 of the DEIS, Exhibit 5B, was inadequate in failing to fully discuss the visual impacts of the project on the residents of Coopers Plains who live along Route 415, and in failing to propose adequate mitigation measures for those impacts. This residential section of Coopers Plains is situated along a hillside approximately 40 feet above the valley floor where the proposed mining activity will take place. As is noted from the View Shed Map annexed to Volume J, supra, the sight distance to the proposed mine area along this section of Route 415 varies from approximately 1200 feet in the north and west to 2400 feet in the north and east. The View Shed Map indicates four view points along this section of Route 415 that were included in the study. These are designated "View Points 'D'" on the Map and are discussed in the Hunt study as "Viewshed D". The Hunt study further indicates that the view of the proposed site from Route 415 "is generally blocked by a tree and brushline that runs east to west south of the houses that face onto Route 415." CPLA argued that this vegetative screening is only effective during the warmer months when the trees and other brush are in leaf and that during the winter and spring residents along Route 415 will "have a clear view" of the site.
The Applicant addressed CPLA's concerns by discussing the Hunt assessment provided in the DEIS and noted that it had been prepared in accordance with Department policies and program guidance, an apparent reference to the Department Program Policy and Guidance Memorandum entitled "Assessing and Mitigating Visual Impacts", DEP-00-2, dated 7/31/00. Mitigation had been incorporated into the project plan, they asserted, to ensure that any visual and aesthetic impacts from the project would be minimized to the maximum extent practicable. In addition, the Hunt study was in fact done during a time of the year when the trees and other vegetation were devoid of leaves. Indeed, this is readily seen in the photographs annexed to the Hunt assessment. Moreover, CPLA's comments on the record, the Applicant argued, did not amount to an offer of proof.
CPLA further argued that in order not to block the floodway, the Applicant had agreed to remove part of a proposed berm at the northeast corner of the site. This would remove some visual screening originally called for in the mitigation plan. The Applicant, however, pointed out that at this location there are mature trees and a railroad bridge which would continue to provide a visual barrier notwithstanding the removal of part of the berm.
Department Staff noted that in their view the visual impacts assessment was adequate, comported with Department policy and employed reasonable mitigation measures.
Ruling No. 9: There are no adjudicable issues raised with respect to visual impacts. The assessment provided in the DEIS complies with Department policy and guidance. A mitigation plan has been provided which minimizes the visual impacts of the project to the maximum extent practicable and thus comports with the requirements of 6 NYCRR 617.11(d)(5).
CPLA argued that since the Applicant has never unequivocally stated that it will never seek to operate an asphalt or cement plant at the proposed site in addition to the proposed sand and gravel mine, it must be assumed it intends to do so and, accordingly, such additional activities must be considered at this time as part of the SEQR review process. The failure to do so, asserted CPLA, gives rise to impermissible segmentation of the instant environmental review. In support of its position, CPLA points to various letters received as exhibits during the issues conference in which the Applicant addresses the issue of segmentation, Exhibit 10, a letter from the Applicant to Department Staff, dated April 26, 2001; Exhibit 20, a letter from the Applicant's attorney to Department Staff, dated April 13, 2001; and Exhibit 15, a letter from the Applicant to Department Staff, dated July 11, 2001. Each of these documents contains language which asserts that this permit application for the sand and gravel operation currently under review and the subject of this proceeding "does not include a concrete plant, a cement plant, an asphalt plant or an asphalt paving materials plant." This language, CPLA argues, is equivocal inasmuch as it does not flatly deny the prospect of such other future activities. That being the case, such future activities must be assumed and the appropriate SEQR review conducted as part of this proceeding. As legal authority for its position, CPLA cited Farrington Close Condominium Board of Managers v. Incorporated Village of Southampton, 205 A.D.2d 623, 613 N.Y.S.2d 257 (N.Y.A.D. 2 Dept. June 13, 1994), as well as In the Matter of the Application of Falke's Quarry, Inc., Decision of the Commissioner dated March 12, 1991.
The Applicant asserted that there was no objective evidence in the record to support a finding that it had any other plans for the site other than the sand and gravel operation proposed and that it was not aware of the existence of any such plans. CPLA's argument, the Applicant urged, amounted to little more than conjecture and speculation. The Applicant also argued that the cases cited by CPLA were inapposite. In both Farrington and Falke's Quarry, future additional actions which, if undertaken, would require SEQR review were contemplated and announced by the respective applicants. In Farrington, the Court found the Village's future phase projects sufficiently identified to require their environmental review at the time the initial phase project was reviewed, and in Falke's Quarry, the Commissioner determined that the Applicant's future plans were tentative and need not be included in the instant review, however, noting that should the Applicant seek to implement such future actions it would be required to provide a full environmental review at that time.
Department Staff noted that their primary reason for giving the issue of segmentation somewhat special attention in this matter was because of a comment made during the public review of the DEIS by an individual who stated she had heard Robert Dalrymple state on one occasion that he intended to add concrete and asphalt plants at the site. Such comments are taken seriously by the Department, Staff said, prompting their further inquiry referred to in Exhibits 10, 15 and 20. Other than this comment, however, Department Staff was unaware of any other statement or document which would show that the Applicant has plans for the use of the site other than for the sand and gravel mine proposed. Any use of the site other than that proposed is purely speculative and hypothetical at this time, Department Staff argued, and no environmental review of such an action is required now. In support of this position, Department Staff cited 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, 303 (N.Y.A.D. 2 Dept. August 28, 1989) which holds, inter alia, that an EIS "is not required until a specific project is actually proposed."
Ruling No. 10: There are no adjudicable issues raised with respect to segmentation. Any future action contemplated by the Applicant, if such exists, is so tentative and speculative as to preclude review of its environmental impacts at this time.
As provided in 6 NYCRR 624.8(d)(2), during the course of a hearing, a ruling by the Administrative Law Judge to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis. While such appeals are to be filed with the Commissioner in writing within five days of the disputed ruling as required by 6 NYCRR 624.6(e)(1), this time frame may be modified by the ALJ, in accordance with 6 NYCRR 624.6(g), to avoid prejudice to any party.
Accordingly, any appeals in this matter must be received at the office of Commissioner Erin M. Crotty, 625 Broadway, Albany, New York 12233, no later than the close of business on Friday, October 26, 2001. Moreover, responses to the initial appeals will be allowed and such responses must be received as above no later than the close of business on Friday, November 9, 2001.
The appeals and any responses sent to the Commissioner's Office must include an original and two copies. In addition, one copy of all appeal and response papers must be sent to me and to all other persons on the enclosed Service List at the same time and in the same manner as to the Commissioner. Service of any appeal or response thereto by facsimile transmission (FAX) is not permitted and any such service will not be accepted.
Appeals and any responses thereto should address the ALJ's rulings directly, rather than merely restate a party's contentions and should include appropriate citations to the record and any exhibits introduced therein.
For the New York State Department
of Environmental Conservation
By: Richard R. Wissler
Administrative Law Judge
Dated: Albany, New York
September 25, 2001
To: Peter G. Ruppar, Esq.
Duke, Holzman, Yaeger & Photiadis, LLP
2500 Main Place Tower
Buffalo, New York 14202
Kevin M. Bernstein, Esq.
Bond, Schoeneck & King, LLP
One Lincoln Center
Syracuse, New York 13202-1355
Leo Bracci, Esq.
Assistant Regional Attorney
NYSDEC Region 8
6274 East Avon-Lima Road
Avon, New York 14414