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Gernatt Asphalt Products Inc. - Decision, May 25, 1995

Decision, May 25, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

the Application of GERNATT ASPHALT PRODUCTS, INC. for permits to construct and operation
a surface unconsolidated sand and gravel mine pursuant to Environmental Conservation Law (ECL)
Article 23, Title 27, Mineral Resources, in the Town of Sardinia, Erie County, New York.

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

DECISION OF THE COMMISSIONER

This Decision is issued in relation to the application of Gernatt Asphalt Products, Inc. (the "Applicant") for permits to construct and operate a surface unconsolidated sand and gravel mine and wet processing plant in the Town of Sardinia, Erie County (the "Town").

This Decision addresses a motion by the Town, as intervenor, for partial reconsideration of the Commissioner's Second Interim Decision, dated January 25, 1995. It also addresses the Town's appeal of the Second Supplemental Issues Ruling of Administrative Law Judge ("ALJ") Edward Buhrmaster, which found no further need for adjudication on archeological issues. For the reasons stated below, the attached supplemental hearing report of ALJ Buhrmaster addressing the partial reconsideration motion is adopted as my Decision.

Motion for Reconsideration

The Town has moved for reconsideration of that part of the Commissioner's Second Interim Decision which accepted the ALJ's conclusions about the stability and integrity of a planned residual embankment. The embankment will confine a 200 acre lake. According to the Town, the ALJ's prior hearing report issued with the Second Interim Decision did not resolve the issue of whether the embankment could be eroded or overtopped in a storm event.

The ALJ has now written a supplemental hearing report addressing that and other claims presented in the Town's motion. Having reviewed that report and the one which preceded it, I adopt them together as my decision on the embankment issue. I am satisfied that the embankment as designed will adequately impound the proposed lake and not be eroded or overtopped. Furthermore, the draft permit provides for the identification and correction of unanticipated conditions affecting the embankment's stability and integrity.

Appeal of Issues Ruling

The Town has appealed the ALJ's March 22, 1995 issues ruling that adjudication of archeological resources is not warranted and that no further archeological studies are required. I find that the ALJ properly applied the standard for raising a hearing issue and therefore affirm the ALJ's ruling.

The Town's basic contentions are that the Applicant's archaeologist, Stephen Oberon, plagiarized the work of another archaeologist, Eric Hansen, and misrepresented it as his own. According to the Town, this casts doubt upon other work claimed by Mr. Oberon, and requires an adjudicatory hearing to ascertain that work's genuineness and reliability.

The ALJ found that adjudicating the genuineness of Oberon's reports would be pointless since the Town did not demonstrate that doing so might affect the permitting decision. This showing is absent from the appeal as well. The Town does not challenge the accuracy or reliability of the so-called plagiarized information, only how it should have been credited.

As noted by the ALJ, correspondence from the Office of Parks, Recreation, and Historic Preservation ("OPRHP") confirms that the Department has fulfilled its duties under Parks, Recreation, and Historic Preservation Law ("PRHPL") Section 14.09 to consult with that agency on archeological matters.

Like the Town, OPRHP questioned why a Hansen survey was not referred to in Oberon's reports, which it said raised questions of "ethical standards in archeological reporting." Nonetheless, OPRHP found that the one known on-site location of Native American cultural remains to be affected by mining - - the so-called "Thomas 2" site - - did not meet criteria for listing in the state and national registers of historic places, and did not merit any protection, avoidance, or mitigation measures. Also, OPRHP found that the survey of the remainder of the project site was sufficient to indicate that no further archeological survey activities were warranted.

Again as noted by the ALJ, the Town has not pointed to any archeological resource that may have been overlooked, and has not backed its contentions with an offer of expert testimony that would call the Applicant's studies into question.

In its appeal, the Town challenges the ALJ's determination not to entertain on the merits certain points made by the Town which did not expressly rely upon any of the documents it obtained during the recent discovery process. I agree with the ALJ's ruling in this regard. The Second Interim Decision was clearly intended to allow for revised offers of proof only to the extent they were based on documents not previously available to the Town. It was not intended that other points not expressly rooted in new documentation be advanced or entertained.

SEQRA

The ALJ's Supplemental Hearing Report and the prior ALJ report attached to the Commissioner's Second Interim Decision, the ALJ's Second Supplemental Issues Ruling of March 22, 1995, and the other materials referenced at the end of the hearing report attached to the Second Interim Decision, are accepted as the Final Environmental Impact Statement ("FEIS") for this action, in which the Department is the lead agency pursuant to the State Environmental Quality Review Act ("SEQRA").

The FEIS affords an adequate basis for rendering the SEQRA findings which are necessary for the project to be approved. Based upon my review, I find that the requirements of ECL 8-0109 and 6 NYCRR Part 617 have been met. Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the action hereby approved is one which minimizes or avoids adverse environmental impacts to the maximum extent practicable, including the effects disclosed in the FEIS. To the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which are identified in the draft permits prepared by Department Staff, including the mining permit which is attached as Appendix "A" to the ALJ's prior hearing report.

Pursuant to 6 NYCRR 617.9(a), I direct that this Decision be effective 10 days after this date and that, as soon as possible thereafter, Department Staff shall issue the necessary permits for this Project consistent with this Decision.

IN WITNESS WHEREOF, the New York State Department of Environmental Conservation has caused this 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 day of May, 1995.

_____________/s/_____________
By: DEPARTMENT OF ENVIRONMENTAL CONSERVATION
MICHAEL D. ZAGATA, COMMISSIONER

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

SUPPLEMENTAL HEARING REPORT

This hearing report addresses the Town of Sardinia's motion for partial reconsideration of the Second Interim Decision in this matter.

The Applicant, Gernatt Asphalt Products, Inc., requests permits to construct and operate a surface unconsolidated sand and gravel mine in Sardinia, Erie County. As an opponent of this project, the Town was granted party status to adjudicate two issues bearing on permit issuance. Those issues were: (1) mining impacts upon surface water resources adjacent to the project site; and (2) the structural stability and integrity of a proposed residual embankment.

In my prior hearing report, I found that the mining would not have significant adverse impacts on surface water resources consisting of the DEC-regulated AR-13 wetland, Paradise Lake, Hosmer Brook, and nearby springs. Also, I found that conditions potentially undermining the stability and integrity of the embankment were unlikely to occur, and that should they occur, Department Staff's draft permit assured they would be identified and corrected prior to the completion of site reclamation.

In his second interim decision, dated January 25, 1995, the Commissioner basically adopted my conclusions, although he remanded the matter on a separate issue pertaining to archeological resources. By papers dated March 6, 1995, the Town moved for reconsideration of that part of the decision which accepted my hearing report on the residual embankment issue. Also, the Town requested that the Commissioner direct procedures reasonably necessary to achieve what the Town described as final determination of "adjudicated but undecided" portions of that issue.

By a letter of March 23, 1995, Gary L. Spielmann, executive deputy commissioner, agreed to entertain the Town's motion. Deadlines were set for responses by the Applicant and Department Staff. Staff submitted a letter dated March 30, 1995, and the Applicant submitted a memorandum of law, also dated March 30, 1995. In accordance with Mr. Spielmann's directives, I have reviewed the motion and the responses, and make the following report.

POSITIONS OF THE PARTIES

- - The Town of Sardinia

The Town asserts that the hearing record contains compelling yet unaddressed evidence that the residual embankment will fail. According to the Town, 1994 groundwater measurements which are part of the hearing record suggest that the lake will have a higher elevation than predicted by the Applicant. The Town reasons that this higher elevation will reduce the amount of freeboard between the lake surface and the crest of the embankment, and make it highly likely that the lake will overtop the embankment, especially given the effects of wave-induced erosion.

The Town proposes that this issue be addressed in one of three ways:

  • Denial of the project application, without prejudice to the Applicant resubmitting an appropriate embankment redesign;
  • Remand to the ALJ for the purpose of reopening the hearing; or
  • Remand to the ALJ to render a supplemental hearing report based upon the existing record.

- - The Applicant

The Applicant contends there is no basis to reconsider the Commissioner's prior decision that conditions potentially undermining the stability and integrity of the residual embankment are unlikely to occur. According to the Applicant, the Town's motion raises no questions that have not been fully litigated and decided. The Applicant also says the motion relies upon evidence that was discredited at the adjudicatory hearing and in my hearing report, since that report concluded that the final lake level would be as predicted by the Applicant's expert, and that the Town's assertions about slope stability were unfounded.

- - Department Staff

Staff agrees with the Applicant that there is no basis to reconsider the Commissioner's prior decision. Staff submits that the prior hearing report's failure to address claims raised in the Town's motion should not be considered inadvertent or fortuitous, but rather the result of a considered judgement that the testimony and evidence tendered on these matters lacked sufficient weight to merit explicit discussion. According to Staff, the Applicant's lake elevation calculations remain credible and undiminished by either the 1994 groundwater data or any other documentation and testimony. Moreover, Staff argues that the Town's witness on wave-induced erosion lacked both the expertise and the facts upon which to base a credible opinion on such erosion or the effect it would have upon the embankment's integrity.

DISCUSSION

In light of the Commissioner's decision that the Town's motion be entertained, I have reconsidered the issue pertaining to the residual embankment. While I find no basis to reverse the findings and conclusions in my prior hearing report, this supplement is intended to explicitly address the substantive arguments in the Town's motion, for the benefit of the Commissioner and any reviewing courts. Regardless of whether the Commissioner alters his prior decision, there is no reason to re-open the hearing record since the parties have already had an opportunity to present evidence on the disputed factual matters. The Commissioner should either adopt this report as his own or, if he accepts the Town's arguments, deny the permit application, without prejudice to the Applicant either revising its embankment design or performing more groundwater level testing to confirm its lake elevation projection.

Background

The residual embankment proposed by the Applicant is intended to impound a 200-acre lake which would be created by mining below the water table. The embankment would function as a dam separating the lake from wetland AR-13 and the Applicant's aggregate processing and manufacturing area, both of which would have surface elevations lower than the projected lake level.

The embankment issue was raised by conflicting engineering reports by Gregory Gifford, the Applicant's expert, and Jeffrey Evans, the Town's consultant. Whereas Dr. Gifford concluded that the embankment design was extremely safe and suitable as an impoundment for the lake, Dr. Evans wrote a report concluding that slope instability could be expected. Evans said if the embankment's slopes were not made flatter, progressive slope failure, also known as "sloughing", and a gradual recession of the lake shoreline would occur.

My issues ruling defined the hearing issue as "the structural stability and integrity" of the proposed embankment, adding that this issue concerned both the potential for "sloughing" due to steep excavation slopes and the potential for internal erosion (or "piping"). In the "Discussion" section of my hearing report, I wrote two separate sections - - one titled "Sloughing" and the other titled "Piping" - - to address these concerns specifically.

In its motion for reconsideration, the Town now argues that the embankment could be overtopped by storm-driven waves. As noted in my hearing report, the embankment will have a minimum 25-foot-wide crest at an elevation of 1439 feet or higher [Finding of Fact No. 38], and the final lake elevation will be about 1433 feet [Finding of Fact No. 16]. This leaves at least six feet of freeboard between the lake and the embankment's crest.

Estimated Lake Elevation

The estimated lake elevation of 1433 feet was provided by the Applicant's hydrogeological expert, Dr. Samuel Gowan. This number was derived from 1992 readings of existing groundwater elevations obtained from monitoring wells (also known as piezometers) installed on the project site. Dr. Gowan said these readings were taken in three different seasons by a geologist properly trained in collection techniques. The three rounds of sampling, he said, were beyond what is generally necessary to determine water levels.

In my report's "Discussion" section, I noted how Dr. Gowan supervised the hydrogeologic investigation of the project site, which included defining the on-site water table and determining the final lake elevation. I explained how his different calculations of final lake elevation - - 1428 feet in the draft Environmental Impact Statement (EIS) and 1433 feet in the supplemental draft EIS - - were accounted for by the reconfiguration of the lake in the supplemental draft EIS, which reduced it from 210 to 200 acres in size. Finally, I said that Dr. Gowan's testimony was "in all respects credible" and "unshaken despite often vigorous cross-examination."

The Town now claims that the final lake elevation will be significantly higher than the 1433 feet predicted by the Applicant and my hearing report. This assertion is based upon 1994 readings from the same monitoring wells studied in 1992 as part of Dr. Gowan's investigation. The 1994 readings were produced at my direction during the hearing after Dr. Gowan revealed under cross-examination that he was aware readings had been taken since 1992.

By stipulation of the parties, the 1994 readings - - transcribed onto a "post-it" note, which was maintained at the Applicant's offices - - were received as "depth to water" measurements taken by a Gernatt employee on either May 20 or 21, 1994. Comparing these readings with those taken on April 20, 1992, as part of Gowan's investigation, the Town calculates an average increase in groundwater elevation of about 3 feet in the six wells located in and adjacent to the proposed lake. According to the Town, this translates to a projected lake elevation of 1436 feet, three feet higher than estimated by the Applicant.

The 1994 readings were not credited in my report for reasons articulated by Dr. Gowan at the hearing. When questioned about the 1994 readings, which he had not authorized or previously seen, Dr. Gowan said he did not know what instrument had been used to take them or whether that instrument would give an accurate reading. He said he was not aware whether in the two intervening years any of the wells had become restricted, or had collapsed, which could lead to inaccurate readings.

Gowan indicated being unaware what protocols had been used in 1994 to prepare the wells or take the water samples. It was also unclear from the "post-it note" - - the only available documentation - - whether the 1994 readings were taken from the top of the well casings, as were the 1992 readings.

Dr. Gowan conceded that if the May 1994 data were used to calculate the final lake level, that elevation would be higher than he had predicted. But he did not say, and was not asked, how much higher. Also, he added that, as a hydrogeologist, he would not draw professional opinions from only one round of readings.

Wave Erosion and Embankment Overtopping

The Town argues that as lake elevation increases, freeboard decreases, which makes it more important to consider wave-induced erosion and the possibility that the dam could be overtopped, especially during storms. Even assuming the lake elevation would be modestly higher than calculated by the Applicant, the Town's consultant, Dr. Evans, did not make a credible presentation on this issue.

According to Dr. Gifford, the Applicant's expert, detrimental wave action will be concentrated 94 percent of the time on the eastern shores of the lake, opposite the residual embankment. This, he said, was due to the prevailing winds, which are from west to east.

Also, as noted in my hearing report [Finding of Fact No. 39], a shallow area, sloped at 10 horizontal to 1 vertical, will extend out from the lakeshore to a distance of 20 feet. Gifford said this shallow area (or shelf) would dissipate any wave energy along the embankment, lessening wave erosion.

The Town's consultant, Dr. Evans, referenced a U.S. Army Corps of Engineers publication, Design of Small Dams, which he said recommends designing for a 2.7-foot wave at a 50-mile-per-hour wind speed, and a 3-foot wave at 70 mph. These recommendations, said Evans, apply when the distance of unobstructed water (also known as "fetch") is one mile or less. (Using the Applicant's maps, the Town says the fetch of the proposed lake will be up to 4,000 feet.)

Dr. Evans said he was concerned about wave-induced erosion from unusual storm events like a "big nor'easter" with winds at 50-70 mph. But he admitted having done no investigation of wind speed or direction at the project site. While he faulted the Applicant for presenting no evidence of "calculation or design criteria" to address shoreline stability, he acknowledged offering no analysis of his own and conceded being unqualified to do design wave calculations.

Dr. Evans' acknowledgement that he had done no studies or analysis and was not qualified to do so effectively discredited his testimony about wave erosion of the residual embankment. Furthermore, Dr. Gifford, for the Applicant, credibly allayed concerns with his testimony about prevailing winds being away from the embankment and the shelf area dissipating wave energy. Finally, assuming a lake elevation of 1433 feet, there remain six feet of freeboard between the lake and the embankment crest, which protects against waves overtopping or possibly eroding out the structure.

Newly Disclosed Correspondence

As part of its motion, the Town has incorporated a December 10, 1991, letter to the Applicant from Robert LaFleur, the project manager from Dunn Corporation, which prepared the draft EIS. This letter was apparently furnished by the Applicant in response to discovery on the unrelated archeological resources issue. The letter outlines a revised scope of services, consistent with the Applicant's cost concerns, while recommending more water level monitoring than proposed in that scope, consistent with LaFleur's perception of basic Department requirements.

In an affidavit attached to its motion, John Schiener, the Town supervisor, claims this letter "illustrates the Applicant's neglect in obtaining adequate data from which to reliably calculate lake level elevations" and its "conscious decision" in this regard "to dispense with good scientific practice." I disagree since the letter offers no judgments as to what is reliable or good practice from a scientific perspective.

As noted above, Dr. Gowan, the Applicant's hydrogeologist, said that the sampling actually performed by the Applicant went beyond what is normally done for a study of that nature. The Town adduced no evidence that the sampling lacked predictive value or was inconsistent with good scientific practice. Significantly, Staff accepted the Applicant's sampling as adequate for the purpose of project review.

Special Permit Conditions

Finally, one must not overlook the special conditions in Staff's draft permit which address the residual embankment.

Special condition No. 23 requires that elevation of the water table be measured at the monitoring wells at three-month intervals and any other times demanded by the Department. Special condition No. 20 requires that the embankment be grass-covered to protect against erosion and reserves to the Department the right to require any necessary repairs to maintain the embankment's integrity. Special condition No. 19 requires that mining and reclamation in the vicinity of the western lake boundary be performed under the supervision of and monitored by a qualified geotechnical engineer. This engineer is required by permit condition to focus on identification of conditions which may compromise the integrity of the embankment, and on the need for remedial measures in the event such conditions are identified.

These permit conditions will assist the Department in identifying and correcting any problems with the embankment's stability and integrity that are not now foreseen.

CONCLUSION

I reaffirm my prior conclusions that:

(1) Conditions potentially undermining the stability and integrity of the proposed residual embankment are unlikely to occur; and

(2) Should they occur, Staff's draft permit assures they will be identified and corrected prior to the completion of site reclamation.

RECOMMENDATION

The Commissioner should issue Staff's draft permit for this project, which was attached to my prior hearing report as Appendix "A".

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