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Gernatt Asphalt Products Inc. - Interim Decision, April 29, 1994

Interim Decision, April 29, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

Application of GERNATT ASPHALT PRODUCTS, INC. for permits to construct and operate a
surface unconsolidated sand and gravel mine in the Town of Sardinia, Erie County

DEC Project No. 9-1462-00019/00001-1

April 29, 1994

INTERIM DECISION

This Interim Decision is in relation to appeals filed to the March 3, 1994 issues rulings of Administrative Law Judge ("ALJ") Edward Buhrmaster in the captioned matter. The pending application is for a mine land use permit to operate a surface unconsolidated sand and gravel mine affecting about 350 acres in the Town of Sardinia, Erie County. Appeals have been filed by Gernatt Asphalt Products, Inc. (the "Applicant"), the Town of Sardinia (the "Town") and the Department Staff.

Appeal by the Applicant

Air Permit

The Applicant appeals the ALJ's ruling that an air permit is required for its processing plant. The Applicant relies on a memorandum of George Danskin, DEC's chief permit administrator, dated March 14, 1990. That memorandum provides that no air permits will be required for mines "where all operations are entirely wet or water conveyed and dust is not created (e.g., water-washed sand operations, operations using water as a conveyance for the mineral). Such operations are already exempt under 6 NYCRR Part 201.6(r)."

The memorandum is relied upon by the Applicant and Department Staff, who agreed that the plant was exempt, and did not request a permit application. However, the memorandum's interpretation of 6 NYCRR 201.6(r) is inconsistent with the regulation itself, and as noted by the ALJ, no exemption is authorized under the regulation as written. Therefore, the Applicant will need to file an air permit application.

Groundwater Quantity

The Applicant appeals the ALJ's ruling that an issue exists about project impacts upon groundwater quantity, including impacts to neighboring wells and surface water bodies. I affirm the ALJ's ruling since it is based on application of the "substantive and significant" standard, noting competing offers of proof and the potential for the issue to affect the permitting decision.

The Applicant notes in its appeal that it is willing to accept a contingency plan like the one proposed by the Commissioner in a prior mining decision to resolve a similar issue (In the Matter of Empire Bricks, Inc., Interim Decision of the Commissioner, August 1, 1990) so long as this would remove groundwater quantity as a hearing issue. Such a condition would require the Applicant to provide potable water to adjacent landowners whenever the quantity of water in the wells of such landowners is insufficient unless and until the Applicant can demonstrate to the satisfaction of the Department that its mining operation is not a contributing cause to such a problem.

As argued by the Town and noted by the ALJ, the question of whether mining will lower or draw down the water table also affects surface water resources near the project site which are alleged to depend on groundwater. These resources include a regulated wetland (AR-13), springs, Paradise Lake, and Hosmer Brook, a trout-spawning stream. The contingency plan which the Applicant expressed a willingness to accept would address impacts to neighboring wells but would not address impacts to surface water resources.

While it is possible that the monitoring condition in the proposed draft permit is adequate to address any potential surface water impacts, this conclusion can not be drawn at this point. The record does not demonstrate that monitoring alone provides reasonable assurances that there will be the opportunity to mitigate or avoid any adverse impacts that may occur. Information should be developed concerning the likelihood and severity of adverse impacts, the degree to which monitoring can be expected to provide advance warning of any such impacts, and what mitigation measures could be taken and their likely effectiveness.

If the Applicant accepts the contingency plan discussed above, a permit condition implementing it shall be drafted and submitted to the ALJ and the parties. In this case, the adjudication of this issue shall be limited to surface water impacts. If not, it shall also cover impacts to nearby wells.

Slope Stability

The Applicant appeals the ALJ's ruling treating as a hearing issue the structural stability and integrity of a proposed residual embankment along the south and west mine boundaries. This ruling is affirmed since it is based upon competing offers of expert testimony.

In its appeal the Applicant incorrectly states that the ALJ has determined that the permit conditions proposed by DEC Staff are insufficient to meet the relevant regulatory requirements. Actually, this is precisely the issue reserved for hearing. If an inadequate design is employed, there may well be no satisfactory remedy after the fact. Therefore, this issue must be resolved prior to project approval.

Dust Impacts

The Applicant appeals the ALJ's ruling that the impacts of fugitive dust is an issue for adjudication. The Town has no independent analysis of dust impacts that contradicts the Applicant's but instead it argues that the Applicant has not provided an adequate analysis.

Fugitive dust is a perennial concern of unconsolidated surface mining. However, the establishment of dust control measures has been traditionally based on best management practices rather than on site-specific analyses of the severity of the unmitigated impact. Although an attempt can be made to quantify this impact, the Town has not demonstrated that the additional analysis will provide useful information to the permit decision. No additional study is required and no issue is raised for adjudication.

Groundwater Quantity

The Applicant appeals the ALJ's ruling that an issue exists about project impacts upon groundwater quantity, including impacts to neighboring wells and surface water bodies. I affirm the ALJ's ruling since it is based on application of the "substantive and significant" standard, noting competing offers of proof and the potential for the issue to affect the permitting decision.

The Applicant notes in its appeal that it is willing to accept a contingency plan like the one proposed by the Commissioner in a prior mining decision to resolve a similar issue (In the Matter of Empire Bricks, Inc., Interim Decision of the Commissioner, August 1, 1990) so long as this would remove groundwater quantity as a hearing issue. Such a condition would require the Applicant to provide potable water to adjacent landowners whenever the quantity of water in the wells of such landowners is insufficient unless and until the Applicant can demonstrate to the satisfaction of the Department that its mining operation is not a contributing cause to such a problem.

As argued by the Town and noted by the ALJ, the question of whether mining will lower or draw down the water table also affects surface water resources near the project site which are alleged to depend on groundwater. These resources include a regulated wetland (AR-13), springs, Paradise Lake, and Hosmer Brook, a trout-spawning stream. The contingency plan which the Applicant expressed a willingness to accept would address impacts to neighboring wells but would not address impacts to surface water resources.

While it is possible that the monitoring condition in the proposed draft permit is adequate to address any potential surface water impacts, this conclusion can not be drawn at this point. The record does not demonstrate that monitoring alone provides reasonable assurances that there will be the opportunity to mitigate or avoid any adverse impacts that may occur. Information should be developed concerning the likelihood and severity of adverse impacts, the degree to which monitoring can be expected to provide advance warning of any such impacts, and what mitigation measures could be taken and their likely effectiveness.

If the Applicant accepts the contingency plan discussed above, a permit condition implementing it shall be drafted and submitted to the ALJ and the parties. In this case, the adjudication of this issue shall be limited to surface water impacts. If not, it shall also cover impacts to nearby wells.

Slope Stability

The Applicant appeals the ALJ's ruling treating as a hearing issue the structural stability and integrity of a proposed residual embankment along the south and west mine boundaries. This ruling is affirmed since it is based upon competing offers of expert testimony.

In its appeal the Applicant incorrectly states that the ALJ has determined that the permit conditions proposed by DEC Staff are insufficient to meet the relevant regulatory requirements. Actually, this is precisely the issue reserved for hearing. If an inadequate design is employed, there may well be no satisfactory remedy after the fact. Therefore, this issue must be resolved prior to project approval.

Dust Impacts

The Applicant appeals the ALJ's ruling that the impacts of fugitive dust is an issue for adjudication. The Town has no independent analysis of dust impacts that contradicts the Applicant's but instead it argues that the Applicant has not provided an adequate analysis.

Fugitive dust is a perennial concern of unconsolidated surface mining. However, the establishment of dust control measures has been traditionally based on best management practices rather than on site-specific analyses of the severity of the unmitigated impact. Although an attempt can be made to quantify this impact, the Town has not demonstrated that the additional analysis will provide useful information to the permit decision. No additional study is required and no issue is raised for adjudication.

Appeal by the Applicant and Staff

Archeological Impacts

Joined by Department Staff, the Applicant appeals the ALJ's ruling that Staff furnish him with documentation it has which results from the execution last year of a court-ordered search warrant upon the Applicant's offices. According to the Town, the warrant sought evidence relative to the preparation of the mining application, including archeological data. The ALJ reserved ruling on archeological impacts as a hearing issue, at least until he could review the documentation in camera.

The Applicant claims that the ALJ lacks authority for his ruling. Staff asserts that the ruling is contrary to law and, if complied with, could compromise DEC's ability to procure court-authorized search warrants in the future.

Rather than address the parties' appeals directly, I hereby direct another disclosure procedure, superseding the one proposed by the ALJ. As a party to this proceeding, the Town is hereby allowed to make a request of the Applicant for all documentation in its possession which relates to archeological resources at the Gabel/Thomas site. If the Applicant objects to this disclosure, it may move for a protective order and its objections will be addressed by the ALJ. Assuming materials are disclosed, an opportunity shall be provided for the Town to supplement its issues filing, and the ALJ shall make rulings based on the Town's offer of proof.

This procedure removes the issue of the search warrant from discussion. Also, it conforms to established discovery mechanisms in the Department's hearing regulations (6 NYCRR Part 624), as supplemented by the Civil Practice Law and Rules.

Appeal by the Town

Noise Impacts

The Town appeals the ALJ's exclusion of off-site noise impacts as a hearing issue. The ALJ ruled that, with the mitigation afforded by project design and draft permit conditions, there was no showing that noise impacts would be significant. This was a proper standard against which to weigh the Town's offer.

On appeal, the Town reiterates its concern about noise from back-up alarms on loading equipment. The draft permit allows material to be loaded for sale starting at 6:30 a.m. on weekdays, although the Town prefers no operations before 7 a.m. The ALJ has ruled that the hours of operation do not present a hearing issue, and except as discussed below, that ruling has not been appealed.

For loading operations prior to 7 a.m., the noise from back-up alarms is unavoidable since the alarms are required by federal regulation. But as the Applicant points out, the alarms only sound when equipment is being operated in reverse gear, which is an infrequent occurrence. The Applicant now notes that it is committed to using control technology which incorporates a radar system to activate a vehicle's back-up alarm only when an object is behind it. As this commitment is apparently not yet embodied in the draft permit, it shall be added as a permit condition.

The Town's concern about back-up alarms is not accompanied by additional proposals to mitigate their particular noise impacts. Therefore, I affirm the ALJ's ruling on noise impacts, subject only to the permit modification set out in the preceding paragraph.

Hours of Operation

In its appeal, the Town argues that an issue exists regarding night-time, Sunday and holiday hours of operation unless the draft permit is amended either to (1) delete allowance for operations outside of the hours specified in the permit, or (2) define what exceptional circumstances would authorize these operations.

As noted by the Town, the allowance for operations outside of normally permitted hours was discussed at the issues conference, upon questioning by the ALJ. The Applicant and Department Staff agreed that such operations would only be authorized in the event of an emergency governmental need occasioned, for example, by a bridge wash-out or a winter storm exhausting salt supplies for sanding.

Given that this is the intent of the existing provision, it is appropriate that the explicit reference for allowances for operations outside of the operating hours specified in the permit be deleted completely. Provision already exists pursuant to 6 NYCRR 621.12 for addressing the need for permit authorizations that arise out of emergency situations. Rather than create a separate process in the context of individual permits, the process that is available generally should be followed. This amendment disposes of the Town's concern and averts any need for further adjudication.

Groundwater Quality Impacts

The Town appeals the ALJ's ruling eliminating impacts on groundwater quality as a hearing issue. Its appeal is basically a repetition of the offer it made to the ALJ and which the ALJ rejected as inadequate. The ALJ wrote that while the Town said mining presents a compliance risk for 6 NYCRR Part 703 dissolved iron standards, the Town made no offer as to existing iron levels, or the degree to which they would rise if the project is approved. Without such an offer from the Town, there was nothing for the Applicant to rebut, and no issue was joined.

Regarding mineralization effects, the Town referred to two studies, one by Turay (which was never produced at the issues conference, and is therefore beyond discussion) and the other by Wrobel. The ALJ discounted the Wrobel study in reliance upon Staff's review of it, which distinguished the situation studied by Wrobel from the one presented here. Especially as the Town did not respond to Staff's review, this was a proper exercise of the ALJ's authority. Therefore, his ruling is affirmed.

Tree Planting

Finally, the Town appeals the ALJ's ruling not to adjudicate the use of tree plantings on berms as a mine screening device. As the ALJ notes in his ruling, the efficacy of a tree planting plan was adjudicated in another mining case, In the Matter of the Application of Peckham Materials (Decision of the Commissioner, January 28, 1994). In that case adjudication was warranted because the tree plantings were considered essential to mitigating visual impacts from a nationally registered historic landmark. This case is not comparable in terms of significance of visual impacts. Therefore, the ALJ's ruling, which found no hearing issue, is affirmed.

Summary

Except as modified above, the ALJ's rulings are affirmed. This matter is remanded to ALJ Buhrmaster for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 29th day of April, 1994.

_____________/s/_____________

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
LANGDON MARSH, ACTING COMMISSIONER

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