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Gernatt Asphalt Products Inc. - Supplemental Ruling, October 5, 1994

Supplemental Ruling, October 5, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the 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)

SUPPLEMENTAL ISSUES RULINGS

Background

Gernatt Asphalt Products, Inc. ("the Applicant") seeks permits to construct and operate a sand and gravel mine in the Town of Sardinia, Erie County. The mine would be on a land parcel known as the Gabel/Thomas site, which is generally west of New York State Route 16, north of Genesee Road and south of Allen Road. The project includes a wet processing plant to wash, crush and size the sand and gravel.

In rulings dated March 3, 1994, I identified certain issues for adjudication. Appeals to these rulings were decided by the Commissioner in an interim decision dated April 29, 1994. My rulings and the Commissioner's decision directed certain action by the parties and reserved deciding whether certain potential issues, as proposed by the Town of Sardinia, would require adjudication.

I reconvened the issues conference on July 11 and August 19, 1994. The claims raised by the Town at that conference are addressed in these supplemental issues rulings. The Town made submittals dated June 30 and August 2, 1994. The Applicant and DEC Staff responded orally at the issues conference.

Archeological Impacts

In his interim decision, the Commissioner authorized release to the Town of all documentation in the Applicant's possession which relates to archeological resources at the Gabel/Thomas site. This documentation has since been produced by the Applicant, except for public documents already available to the Town and materials protected by attorney-client privilege, according to Craig Slater, the Applicant's corporate attorney.

The Commissioner wrote that if materials were disclosed, the Town would be able to supplement its issues filing, and the ALJ would make rulings based on the Town's offer of proof. The Town's written submittal criticizes the Applicant's archeological studies and recommends that certain field work be re-done.

By way of background, the Applicant's archeologist, Stephen Oberon, performed a stage I cultural resources survey which located Native American cultural remains at four site locations. The Applicant has chosen to avoid mining in three of the sites, and the fourth (known as the "Thomas 2" site) was investigated as part of a stage II survey, which Mr. Oberon also performed.

In his stage II report, Mr. Oberon writes that the "Thomas 2" site appears to represent the remains of a very small, briefly occupied Native American stone tool maintenance area. According to Oberon, the site has little archeological value because "any cultural features and/or structural remains which might have been present seem to have been obliterated by repeated plowing and other cultivation activities" during the last 150 years.

Mr. Oberon's stage I and II reports were reviewed and accepted by DEC Staff and the state Office of Parks, Recreation and Historic Preservation (OPRHP). OPRHP became involved pursuant to Parks, Recreation and Historic Preservation Law (PRHPL) Section 14.09. This section requires that state agencies consult with OPRHP if it appears any aspect of a project subject to agency approval "may or will cause any change, beneficial or adverse, in the quality of any historic, architectural, archeological, or cultural property" that is listed on the state or national registers of historic places, or is determined by OPRHP to be eligible for listing on the state register.

Having reviewed Oberon's stage I and II reports, OPRHP wrote DEC a letter dated November 4, 1992, which said that the "Thomas 2" site did not meet criteria for inclusion in the state and national registers of historic places, and that the three other sites would be avoided if the project went forward according to the Applicant's mining plan. Therefore, OPRHP determined that no additional archeological activity was recommended for this project. OPRHP reaffirmed this position in a second letter dated July 15, 1993, which added that the "Thomas 2" site merited no protection, avoidance, or mitigation measures. At the request of DEC Staff, Mr. Oberon's work was evaluated by a second archeologist, Karen S. Hartgen. She wrote a letter dated October 5, 1993, which confirmed that the type and amount of field work conducted by Mr. Oberon was appropriate and adequate to determine that the "Thomas 2" site was not eligible for register listing.

In its July 15, 1993 letter, OPRHP questioned why the project site was surveyed twice for the Applicant - - once in 1990 by Eric Hansen, and again in 1992 by Mr. Oberon - - and why Mr. Oberon's reports do not refer to the Hansen survey. In its issues filing, the Town questions whether Oberon plagiarized Hansen's work, while in the OPRHP letter, the issue is framed in terms of "ethical standards in archeological reporting."

According to the Town, the Applicant needs to establish the credibility of Oberon's work or perform new stage II studies. This view is not shared by the Applicant, DEC Staff, or OPRHP. At Staff's request, Mr. Oberon's work has already been subject to peer review. Also, OPRHP's ethical concerns did not affect its finding that no further archeological studies are warranted.

Requiring more work now would be wasteful, especially since the Town does not point to any resource that may have been overlooked. Also, the Town's filing lacks an offer of expert testimony, and does not cite any law or regulation which is alleged to have been violated. It is apparent from OPRHP's own letters that DEC has fulfilled its duties under PRHPL Section 14.09 to consult with that agency on archeological matters.

For these reasons, no further archeological study is directed. Also, no issue is raised for adjudication.

Historic Resources

PRHPL Section 14.09 requires that DEC consult with OPRHP on impacts to historic as well as archeological properties that are eligible for listing on the state register.

In my earlier issues rulings I noted OPRHP's concern that three historic properties - - two homesteads and a cemetery - - might be affected by the mine. Since these rulings were issued OPRHP has told Staff that one of the homesteads (known as the Olga Howell House) meets criteria for inclusion in the state register, but the other two properties do not. OPRHP is concerned about visual impacts the mine might have from the rear of the house, which is on Route 16 at the eastern edge of the project site.

To address OPRHP's concern, the Applicant proposed planting two staggered rows of white pine along the screening berm that separates the mine site from the Olga Howell property. This plan was approved by OPRHP and later modified by a new special permit condition composed by Staff and accepted by the Applicant. In relevant part, the new condition provides that site landscaping "shall include planting and maintaining at least 3 rows of coniferous trees and shrubs on the perimeter berms where they are parallel to and within 200 feet of NYS Route 16, and sufficient to screen the Olga Howell House from mining operations. The preferred planting scheme is one row of Autumn Olive shrubs planted on the top of the berm, spaced 4 to 8 feet apart, and at least one row of mixed conifers, predominantly Norway Spruce and White Pine, on each of the berm slopes parallel with and about 10 feet from the Autumn Olive shrubs, spaced 10 feet apart."

In a letter of August 12, 1994, OPRHP wrote to DEC Staff that it accepted as appropriate "the plantings plan submitted for the Gabel-Thomas mine." As noted by the Town, this leaves some ambiguity as to what OPRHP is accepting - - the plan first proposed by the Applicant, or the plan subsequently incorporated by permit condition. To allay the Town's concern, I requested that Staff get clarification from OPRHP, but none has yet been provided.

It would be better to get this clarified, but it is not essential since Staff has already fulfilled its duties under PRHPL Section 14.09. These duties are to consult with OPRHP and "to the fullest extent practicable, consistent with other provisions of law, to avoid or to mitigate adverse impacts to registered property or property deemed eligible for listing on the state register." Staff's permit requirement - - that the Olga Howell House be screened from the mining operation - - fully avoids any adverse visual impact to this property. How this screening occurs is a matter within the expertise of DEC, not OPRHP. Also, the law does not require OPRHP's approval of the planting plan.

The Town also draws attention to the word "preferred" in describing the planting scheme. Staff says the condition was written as it was to afford the Applicant flexibility so long as its plantings meet the stated goal of screening the Olga Howell House from the mining operations. The Town responds that if DEC intends its preferred planting scheme to be implemented, the special condition should say so.

I agree that the condition, as now written, does not bind the Applicant to the planting scheme preferred by DEC Staff. As this scheme was apparently devised because it would afford adequate screening and would be feasible to carry out, it should be mandated, not suggested. Otherwise, there's no reason to include it in the condition, as it is not an enforceable requirement.

The Town has not suggested that the planting plan cannot be accomplished or would otherwise be ineffective. Therefore, no issue exists to adjudicate. However, my acceptance of special condition No. 30 is premised on its being revised to substitute the word "required" for "preferred" in relation to the planting scheme. This will bind the Applicant to a plan and not merely a result, and will fix expectations not only about what must be achieved, but how it will be accomplished.

Noise Impacts

The Commissioner's interim decision directed that the draft permit be amended to require the Applicant's use of a radar system to activate vehicles' back-up alarms only when objects are behind the vehicles. Staff's new special condition No. 29 states: "All on-site equipment which is required to have an audible backup alarm system shall be equipped with an appropriate sensing device to activate the audible alarm system only when necessary for safety purposes."

Staff's condition does not require radar, but only an "appropriate sensing device." The Town says this calls into question whether radar will actually be used and, if not, whether the "appropriate sensing device" will result in more frequent sounding of backup alarms and therefore greater disturbance to mine site neighbors. The Applicant claims it is still committed to radar, but prefers Staff's permit condition language so that if radar is eventually supplanted by some new technology, that new technology can be used without there having to be a permit modification. Staff believes its language fulfills the basic intent of the Commissioner, even though it departs from his specific direction.

Having compared Staff's and the Commissioner's language, I find that the Commissioner's is preferable. It clearly reflects a commitment which the Applicant has made. It eliminates possible questions about what is an "appropriate" sensing device. Should radar be replaced by some new technology, Staff or the Applicant should be able to modify the permit without a break in the mining operation.

Finally, the Commissioner's language removes any question about when alarms are "necessary" for safety purposes. According to Staff, alarms are necessary only when equipment is operated in reverse gear. This shall be clarified in the draft special permit condition (No. 29), which shall read as follows:

"To control noise from vehicle back-up alarms, radar shall be used to activate the alarms only when an object is behind the vehicle."

Air Permit

As directed in my rulings and the Commissioner's interim decision, the Applicant has applied for an air permit pursuant to 6 NYCRR Part 201. Staff's draft permit commits the Applicant to use of electrical power for gravel crushing. If the Applicant later decides to use some other form of power, it will require a permit amendment.

The Town is concerned whether the Applicant can demonstrate the feasibility of installing electrically-powered processing equipment. To allay this concern, the Applicant presented a memorandum from New York State Electric and Gas ("NYSEG") stating that NYSEG has the system capacity to serve the Applicant's needs at the Gabel/Thomas site. NYSEG writes that it is willing and able to provide service via a local 34.5 kv distribution system.

At the conference the Town accepted NYSEG's memorandum as providing needed assurance that power needs can be met. This alleviated the Town's concern that the Applicant might have to use something other than electrical power, which might entail additional, as of yet unaddressed air emissions.

As no other issues were proposed, the air permit does not require adjudication.

Dust Impacts

The town contends that open material stockpiles are a source of air contamination and should be addressed as such by Staff. This claim has already been addressed in the Commissioner's interim decision, which said no additional study of fugitive dust is required. Also, the town's new assertions are based on air guide documents which were not identified in its submittal, and therefore cannot be evaluated. No further consideration is required.

Traffic Impacts

In my prior rulings I deferred consideration of traffic impacts until the Applicant provided additional information. This information was provided in May, and the Town's subsequent submittal offered various criticisms of the Applicant's traffic studies. The Town is especially concerned that new truck traffic on Route 16, a state highway, will be a safety risk to motorists. The Applicant denies this, citing the studies of its traffic engineer, James Napoleon, who spoke at the issues conference.

Pursuing the Town's claims is precluded both by past Department precedent and by the Town's failure to back its claims with a competent offer of proof.

Route 16 is state highway and as such is regulated by the New York State Department of Transportation (DOT). DOT has granted a permit opening access to Route 16 from the mining site. As lead agency, DEC coordinated its State Environmental Quality Review Act (SEQRA) activities with DOT. DOT was an involved agency and was provided a copy of both the Draft Environmental Impact Statement (DEIS), which includes the Applicant's traffic study, and the notice of this permit hearing.

According to an interim decision of the Commissioner, In the Matter of the Application of Wilmorite, Inc. (October 7, 1981), formal adjudication of traffic impacts is not warranted unless DOT intends that DEC's permit hearing be used for this purpose. This is because DOT has the expert authority to assess traffic impacts, and DEC does not (Wilmorite, at 4-5).

DEC's unwillingness to litigate traffic impacts is reinforced by the ALJ's rulings in another mining case, In the Matter of the Application of Dutchess Quarry and Supply Company, Inc. In that matter too, intervenors alleged that the Applicant had not adequately addressed traffic impacts associated with the project at intersections along a state highway. As here, DEC was lead agency under SEQRA, and had coordinated its review with DOT. DOT had issued the required highway access permit, and had received both the DEIS and the notice of DEC's permit hearing.

In finding no traffic issue, the ALJ in Dutchess Quarry wrote that "since coordinated review does not change the basic jurisdiction among agencies, if the DOT declines to impose conditions on the Access Permit, and does not contribute its expertise to the record as a party to this hearing, then it appears that the Applicant and Staff have addressed traffic impacts to such extent as is appropriate, practicable and within the authority of the Department" (ALJ's rulings, May 22, 1992, at page 16).

The ALJ's rulings quoted a Commissioner's decision, In the Matter of the Application of Bear Creek Materials Corporation (October 15, 1984). This decision states that DOT and county highway officials have legal jurisdiction over highway safety as it relates to traffic conditions (Bear Creek, at page 5).

Even assuming DEC would entertain the Town's issue, its offer of proof was inadequate. Unlike the intervenors in Dutchess Quarry, the Town has not performed its own traffic study. Its offer, such as it is, is merely the comments of its counsel, Mr. Seeger.

According to Mr. Seeger, it is logical to think there is a direct correlation between the incidence of automobile accidents and lower Level of Service (LOS) designations of intersecting roads as traffic is added. However, Mr. Napoleon said there is no such correlation; in fact, he said, adding traffic may actually make the road safer. Mr. Napoleon said that while trucks leaving the site might encounter delays, traffic passing the site on Route 16 would remain well below the road's capacity even after the mine becomes fully operational.

The Town proposes that the mining permit be conditioned to ensure consistency between the volume of truck traffic analyzed by the Applicant in its traffic study and the volumes that would actually be generated once the site begins operating. No such conditions are necessary since the Town has not shown that traffic will actually exceed what has been anticipated by the Applicant, or that Route 16 is already near capacity.

The Town also wants assurance that no truck traffic exits onto Genesee Road except on an emergency basis. The Applicant proposes to build a secondary driveway connecting with Genesee Road, which is a county highway. According to a letter from the Erie County Department of Public Works, the county's reservations about this driveway were put aside when the Applicant said the driveway would not be used by trucks. Making this assurance part of DEC's permit will make it more likely to be enforced, and is not improper since it merely confirms the county's expectation and the Applicant's promise. Therefore, a new permit condition shall be added stating that all mining trucks shall enter and exit the site via Route 16, that mining trucks shall not leave the site onto Genesee Road except in an emergency, and that the driveway connecting to Genesee Road is reserved for automobile and other light vehicle traffic only.

Agricultural Impacts

In my prior rulings I agreed with the Town that the agricultural impacts mitigation plan proposed by the Applicant and incorporated in DEC Staff's draft permit as special condition No. 18 was vague and perhaps unenforceable. I directed that Staff work with the Applicant in rewriting the condition. Staff has done so, and its new language has been accepted by the Applicant.

As revised, special permit condition No. 18 reads as follows:

"Mitigation for the loss of prime farm land as a result of mining and reclamation shall proceed on an acre-for-acre basis as prime farm land is permanently removed from production. Said mitigation shall be located in southern Erie County, south of U.S. Route 20A. Acceptable mitigation methods shall include, but not be limited to, assisting local farmers by offering grading, drainage and erosion control improvements with machinery, personnel, or funds or securing development rights and conservation easements on other properties. Completion of agricultural mitigation in accordance with this condition shall be a requirement of this permit. Acceptance of mine site reclamation shall be contingent upon completion of agricultural mitigation. Compliance with this condition shall be reviewed one year prior to each permit renewal date. The permittee shall submit a summary of mitigation projects accepted by the Erie County Soil and Water Conservation District, including locations, acreages, methods and District contact person."

The plan to mitigate agricultural impacts was initially proposed in section 5.2.2.1 of the DEIS. According to the DEIS, the plan was proposed "to offset the loss of farmland and reduce the overall impacts on the regional farming industry." The Town asserts that an enforceable plan is necessary under SEQRA to offset unavoidable mining-induced adverse impacts. The Applicant disagrees. According to the Applicant, the plan is not legally mandated, and was offered merely as a gesture of good corporate citizenship.

I have not had to rule whether a plan is required since the plan has always been part of this project. Regardless, whatever plan is adopted should be reasonably clear for the benefit of all hearing participants: for the Applicant, which would have to abide by it; for the Staff, which might have to enforce compliance; and for the Town, which wants to preserve farmland resources.

The Town contends that even as rewritten, Staff's permit condition is still ambiguous. Having explored with Staff and the Applicant the intent behind the plan, and having considered the Town's arguments, I direct the following changes to the permit condition.

- - The permit condition shall specify the acre-for-acre standard by which success of the plan will be judged. According to Staff and the Applicant, "acre-for-acre" means that for every acre permanently removed from production, another acre off-site must be benefitted or improved. It is not their intention that the acreage to be improved must be prime farmland, or that the improvement would create prime farmland out of acreage that does not already fit this description. This needs to be confirmed by the condition itself.

- - The permit condition shall specify how many off-site acres must be benefitted or improved. The existing condition equates this with the number of on-site acres that are permanently removed from production, which means only the acreage of the planned on-site lake, according to Staff and the Applicant. However, the DEIS (from which this condition was developed) states that "the scope of the Agricultural Impact Mitigation Plan encompasses the loss of the land associated with the creation of the approximately 210 acre lake as well as the above water land area around the lake perimeter . . . Only those areas that are currently not considered agricultural land (wetlands, residences) will be excluded from the Agricultural Impacts Mitigation Plan" (DEIS, Section 5.2.2.1, emphasis added).

How many acres are anticipated to be "permanently removed from production"? What does this language mean? Does the new draft condition benefit less off-site acreage than the plan initially outlined in the DEIS? These questions will be removed by fixing the number of off-site acres to be benefitted or improved.

- - The permit condition shall incorporate language verifying Staff's expectation that mitigation shall occur during the life of the project as affected acreage becomes unsuitable for agricultural use. As now written, the condition provides that compliance shall be reviewed one year prior to each five-year permit renewal. Staff anticipates that the Applicant will make a good faith effort to accomplish whatever reasonable mitigation projects that are brought to its attention during each five-year permit term. But this expectation is not confirmed by Staff's own permit language. Therefore, the condition must be revised to set some standard against which compliance shall be measured at permit renewal intervals during the 100-year life of this project.

With these amendments, the permit condition will be clearer, yet still consistent with Staff's general intent. If any party objects to these amendments, it may do so in an appeal of these rulings.

Hours of Operation

The Town questions why Staff has not drafted a new permit condition addressing hours of operation. This is not required since the Commissioner's decision merely removed one sentence from the condition Staff initially had prepared. As revised, special condition No. 18 deletes the last sentence in Staff's draft permit, which allowed for operations outside of permitted hours subject to Department approval. According to the Commissioner's decision, such operations will require emergency authorization pursuant to 6 NYCRR 621.12.

Summary Ruling

Assuming the permit is revised as directed by these rulings, there are no further issues to adjudicate, and no additional information is required. On or before October 12, 1994, Department Staff shall furnish the parties and me with a revised draft mining permit consistent with these rulings and incorporating all modifications to date. Appeals will then be allowed from these rulings.

Appeals

Pursuant to 6 NYCRR Part 624, the rulings of the ALJ setting forth the issues for hearing may be appealed in writing to the Commissioner within three days of the rulings. Allowing extra time due to the mining permit's revision, any appeals must be received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-5500) no later than October 19, 1994. Any responses to any appeals must be received by October 28, 1994. The parties shall ensure transmittal of all papers to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No submittals by telecopier will be allowed or accepted.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge
Albany, New York

Dated:October 5, 1994

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