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Gernatt Asphalt Products Inc. - Ruling, March 3, 1994

Ruling, March 3, 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)

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

ON

PARTY STATUS AND ISSUES

BACKGROUND AND BRIEF PROJECT DESCRIPTION

Gernatt Asphalt Products, Inc. ("the Applicant") proposes to construct and operate a surface unconsolidated sand and gravel mine. This project would affect 350 acres of a 400-acre parcel known as the Gabel/Thomas mine site. Controlled by the Applicant, the Gabel/Thomas site is generally west of New York State Route 16 north of Genesee Road and south of Allen Road in the town of Sardinia, Erie County.

As proposed, the project includes mining below the groundwater table on up to 204 acres and the construction and operation of a wet-wash material processing plant including a crusher, screens, conveyors and a closed-loop water circulation system. Reclamation involves creation of a lake about 80 to 100 feet deep with surrounding meadow for recreation and wildlife habitat. The estimated life of the mine is 80 to 100 years. Main access to the mine would be from New York State Route 16.

To construct and operate this project, the Applicant has applied for a Mined Land Reclamation Permit pursuant to Title 27 of Environmental Conservation Law ("ECL") Article 23 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420-423.

As lead agency under the State Environmental Quality Review Act ("SEQRA", ECL Article 8), the Department of Environmental Conservation ("the Department", or "DEC") determined that the project is a Type I action and may have a significant effect on the environment. DEC issued a positive declaration on November 5, 1992, requiring the preparation of a draft Environmental Impact Statement ("EIS"). On May 12, 1993, Department Staff accepted a draft EIS as adequate for public review. A supplemental draft EIS was accepted on December 15, 1993.

LEGISLATIVE PUBLIC HEARING

A Notice of Public Hearing, dated December 24, 1993, was published in the Department'sEnvironmental Notice Bulletin on January 5, 1994. It was published as a legal notice in theBuffalo News on December 29, 1993, theSpringville Journal on December 30, 1993, and theArcade Herald on January 6, 1994.

As announced in the hearing notice, a legislative hearing for comments on the application and draft EIS was held during the afternoon and evening of January 31, 1994, at the Town of Sardinia Community Center, 12320 Savage Road, Sardinia. Fifty-three speakers were heard, and about 70 other people submitted written statements. Some statements were hand-delivered at the hearing; others were mailed to the Department.

Project advocates include many construction contractors who now do business with Gernatt at other sites it operates in western New York State. These supporters argue that existing aggregate deposits are being pushed to meet demand and that new sites must be developed as existing deposits are depleted.

According to project proponents, the Gabel/Thomas site has sand and gravel deposits meeting state specifications for highway construction. These deposits, they add, are a "deep" reserve, meaning they can provide a lot of material while minimizing the area of surface disturbance. Proponents note that the site's close proximity to the greater Buffalo area and its location on Route 16 south of the city would make it valuable for serving that region's infrastructure needs, providing low-cost, high-quality sand for concrete manufacture, and materials used by highway departments for chip sealing, blacktop paving and winter sanding.

Project opponents include the Town of Sardinia and the Erie County Legislature, which passed a resolution in February, 1993, opposing the project due to "the severe environmental, health, land use, visual, agriculture, transportation and general welfare effects" the mine would have upon the locality. Sardinia's supervisor, John Schiener, and several town councilpersons gave statements against the project. Other statements critical of the draft EIS were received from Erie County officials.

Project opponents are principally concerned about the impact this project might have upon the Sardinia aquifer. The aquifer was described as the sole drinking water source for about 900 people served by the Chaffee Water Company (which is adjacent to the site) and individual wells. The project site overlies the aquifer. Project opponents are concerned that mining as proposed will draw the water table down and contaminate the aquifer with solvents, degreasers and other petroleum products. Concern was also expressed for the water levels in Hosmer Brook and other nearby streams that are used for trout fishing.

Many Sardinia residents gave statements opposing the mine, saying it was not compatible with their rural, agricultural community. Frequent concerns were voiced about noise, visual and truck traffic impacts, and the effects they would have on property values. Setbacks from roads and neighboring property lines were described as inadequate. The reclamation goal - - creation of a large lake, with surrounding meadow - - was said not to compensate for the loss of what was described as prime farmland.

ISSUES CONFERENCE

An issues conference was held on February 1, 2 and 9, also at the Sardinia town offices. Participating at the issues conference were the Applicant, DEC Staff, and representatives of the Town of Sardinia.

The Applicant was represented by William J. Gilberti and Adam J. Schultz, Esqs., of Devorsetz, Stinziano, Gilberti & Smith, P.C., Syracuse.

DEC Staff was represented by David Stever, Esq., of the Department's Region 9 office, Buffalo.

The Town of Sardinia ("the town") was represented by David J. Seeger, Esq., of Buffalo.

The Town made a timely filing for party status which proposed certain issues for adjudication. No issues were proposed by either the Applicant or DEC Staff.

Prior to the conference DEC Staff prepared and released a draft permit with conditions for the project's construction and operation. This permit was revised during the issues conference and a copy of the permit, as finally amended, is attached to these rulings as Appendix "A". The Applicant concurs with and accepts the permit terms, and Staff is prepared to issue it.

In this context, the burden of persuasion that substantive and significant issues exist is on the town as prospective intervenor. To meet this burden, the town must raise sufficient doubt about the applicant's ability to meet all relevant statutory and regulatory standards (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988). Its offer of proof may take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application (In the Matter of Oneida County's Energy Recovery Facility, Interim Decision of the Commissioner, July 27, 1982).

A "substantive" issue is one not based on mere speculation but on facts that can be subjected to adjudication [In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3d Dept., 1982), aff'd. 58 NY2d 919 (1983)]. A "significant" issue is one whose resolution can result in permit denial or the imposition of significant conditions [In the Matter of NYC Dept. of Environmental Protection, Chelsea Pump Station, Commissioner's Third Interim Decision, October 6, 1988; and In the Matter of St. Lawrence County, Commissioner's Third Interim Decision, April 30, 1990].

PROPOSED ISSUES FOR ADJUDICATION

AIR PERMIT

The town asserts that the application is incomplete because the Applicant has not applied for an air permit pursuant to Part 201. 6 NYCRR 201.2 provides that no person shall commence construction of an air contamination source or operate one without a valid certificate to construct and operate, unless exempted pursuant to section 201.6. The draft EIS (at section 2.3.2.2.3) states that because the project will consist of below water excavation and wet processing, which will result in the saturation of material, air permits will not be required. According to the Applicant and DEC Staff, the project is exempt under section 201.6(r).

Section 201.6(r) provides an exemption for "all processing equipment at sand and gravel mines or quarries that: (1) are permanent or fixed installations with a maximum rated processing capacity of 25 tons of minerals per hour or less; or (2) are mobile (portable) installations with a maximum rated processing capacity of 150 tons of minerals per hour or less." This exemption does not apply to the wet processing plant that will wash, crush and size sand and gravel which is excavated from the Gabel/Thomas site. The maximum processing capability of this plant is estimated at about 750 tons per hour, which is above the threshold of section 201.6(r). No other exemptions are asserted; therefore, one must conclude that a permit is required.

DEC's uniform permitting procedures state that "if a project requires more than one department permit, the applicant must simultaneously submit all the necessary applications, or demonstrate to the department's satisfaction that there is good cause not do so" [6 NYCRR 621.3(a)(4)]. Therefore, the Applicant must submit an air permit application, as good cause not to has not been demonstrated.

The town asserts that this project has been illegally segmented under SEQRA because no details of the processing plant are furnished and it is treated for all intents and purposes as a zero emission facility, which is an untenable position. This is not true since the processing plant is described in the application materials, although it is treated as exempt from Part 201.

SEQRA addresses segmentation by stating that considering only a part or segment of an action is contrary to the law's intent. "If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance and any subsequent EIS the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible" [6 NYCRR 617.3(k)(1)].

Staff's positive declaration, dated November 5, 1992, describes this project as a "400 acre surface unconsolidated sand and gravel mine, with a wet wash material processing system." The plant has always been part of the project as reviewed by DEC Staff. Therefore, segmentation has not occurred.

GROUNDWATER QUANTITY

An issue is raised as to impacts this project will have upon groundwater quantity for both neighboring wells and surface water bodies.

As noted above, the Gabel/Thomas site is on top of the Sardinia aquifer. Mining is planned below the water table, resulting in a lake more than 200 acres in size and up to 80 to 100 feet deep.

In the draft EIS, the Applicant writes that creation of the proposed lake will not adversely affect the quantity of water available in the aquifer. The Applicant concludes that mining below the water table will actually add water to the aquifer since the lake will increase storage capacity and because water now lost to runoff and evapotranspiration will be captured in greater amounts than those that would be lost to evaporation from the lake surface.

The Applicant's data and conclusions have been accepted by DEC Staff as a basis for permitting this project. They are challenged, however, by the town, which has submitted its own report, dated January 26, 1994, by Stephen Smith, an engineer with GeoHydroCycle, Inc., of Newton, Mass. This report follows two sets of comments, dated June 10 and July 14, 1993, which were also written by Mr. Smith, and which address perceived deficiencies in the draft EIS. (The report and the prior comments are all part of the town's filing for party status.)

In his January 26, 1994 submission, Mr. Smith writes that the project, as now designed, presents a significant risk of curbing the quantity of available groundwater resources in the Sardinia aquifer. Using data and assumptions somewhat different from the Applicant's, he calculates a groundwater recharge loss of 4.7 inches per year, or 350 gallons per day for every acre of lake that is created.

Whether recharge would be curbed, as claimed by the town, or enhanced, as claimed by the Applicant, is the subject of conflicting expert opinion. Also in question is whether mining will lower or draw down the water table, and the effect this will have on neighboring wells and nearby surface water resources (including the AR-13 wetland, springs, Paradise Lake and Hosmer Brook) which are alleged to depend on groundwater.

According to Mr. Smith, the removal of sand and gravel from below the water table will, in effect, pump the aquifer during the life of the mine. Combining this with a net loss of water to evaporation - - as the lake surface is created - - Mr. Smith concludes that the aquifer will be drawn down 4.6 feet at 3500 feet from the mine center after 30 years of activity.

The town's drawdown estimates are premised on the so-called Hantush method, the application of which is disputed by the Applicant. Beyond that, the Applicant states that the mine cannot be simulated as a pumping well because of moveable boundary conditions and the intermittent nature of the activity.

To assess any drawdown that occurs, Staff has provided two permit special draft permit conditions (No. 22 and 23) which require life-of-project monitoring of the water table elevation. This would be done at a series of monitoring wells, including a new one to be drilled outside the mine toward the Chaffee water company well, which serves 900 local residents.

Staff considers groundwater monitoring to be an "early warning" measure should mining have adverse off-site impacts. Responding to public concerns, the Applicant has said it would agree to bear the cost for drilling a new well, deepening an existing well, or lowering the pump of an existing well for those residents who can demonstrate that the mining operation is, responsible for a groundwater loss.

The groundwater monitoring proposed by Staff and the so-called contingency plan offered by the Applicant do not effectively mitigate drawdown impacts and therefore do not resolve what must otherwise be considered a hearing issue. Staff's plan would document actual drawdown but would not, standing alone, redress resulting impacts. If a well went dry, its owner would still have to prove the mine was to blame. A civil lawsuit would be needed, which for some local residents could be prohibitively expensive.

Gernatt's contingency plan is unlike the one proposed by the Commissioner in the matter of the application of Empire Bricks, Inc., for a clay mining operation in Saugerties, New York. In that matter, too, an issue had been certified as to whether or not the mine would adversely impact the quantity of water in neighboring wells. In deciding appeals of the ALJ's issues ruling, the Commissioner said that "if the Applicant is prepared to accept a condition which will require it 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, there is no issue for adjudication" [In the Matter of Empire Bricks, Inc., Interim Decision of the Commissioner, August 1, 1990]. In the plan proposed by the Commissioner, the burden of proof was on the Applicant; here, the burden is shifted to the landowner, with no relief pending adjudication.

The impacts of mining upon groundwater quantity is an issue under SEQRA since these impacts are environmental in nature and, if significant, must be adequately mitigated or avoided [6 NYCRR 617.9]. This issue is substantive since it is based on adjudicable facts and conflicting expert opinion. The issue is significant because it could result in permit denial or the imposition of significant conditions.

The Applicant has tried to rebut this issue by extensive citations to its own studies, arguing, in essence, that they are exhaustive and more persuasive than the criticisms advanced by Mr. Smith. These arguments are not compelling since the issues conference is designed only to see what issues exist, and not to litigate them, which is the function of an adjudicatory hearing.

The Applicant has also challenged Mr. Smith's credibility, citing his work in another case, which involved Monroe County's application for the Mill Seat solid waste landfill. In that case Mr. Smith prepared a report on behalf of the intervenors, challenging the Applicant's hydrogeologic studies. In an April 14, 1993 ruling on the intervenors' motion to reopen that hearing, the Commissioner said that Mr. Smith's report "uses data selectively and utilizes unscientific methods to justify what appears to be a preordained result." According to Gernatt, the same thing is happening here: that is, Mr. Smith has biased his studies, with the goal of blocking this project.

The Applicant's use of the Monroe County ruling is inappropriate at this stage of the proceeding. The Applicant has cited it to show Mr. Smith is not credible, although credibility is an issue reserved for the adjudicatory hearing. At the issues conference stage, it should be enough that the witness is competent and willing to testify. Neither party questioned Mr. Smith's credentials, and even Staff, which disagreed with Mr. Smith's analysis, acknowledged it was credible, "though not necessarily superior" to the Applicant's.

GROUNDWATER QUALITY

Aside from impacts to groundwater quantity, the town is concerned with impacts to groundwater quality. This proposed issue has two components: (1) projected increases in groundwater mineralization and nutrients; and (2) risk of spill-related groundwater contamination.

(1) Projected Increases in Groundwater Mineralization and Nutrients

In his January 26, 1994 report, Mr. Smith writes that it is reasonable to assume that significant increases in mineralization and nutrients in groundwater could result from quarrying below the water table and its result: creation of a lake exposing the underlying aquifer.

According to Mr. Smith, minerals in groundwater, such as iron, can discolor water, impart a metallic taste, and diminish well performance as screens become encrusted. The Applicant's failure to provide a mineralization impacts analysis violates 6 NYCRR 422.2(c)(4), according to the town. In relevant part, that section requires that the mining plan contain a description of the Applicant's proposed method for preventing pollution when and to the extent necessary to achieve compliance with DEC water quality regulations.

The Applicant's mining plan (at Section 2.3.3) states that all applicable state regulations concerning water and water quality will be met, and that the excavation will not deteriorate the quality of groundwater. The town submits that mining presents a compliance risk for Part 703 dissolved iron standards. However, no offer has been made either as to existing iron levels, or the degree to which they would rise if this project is approved.

Regarding mineralization effects, one of the town's offers is a 1985 college thesis by A.Q. Turay, titled Mineralization of Groundwater in Small Watersheds with Particular Emphasis on the Evolution of Iron in Shallow Aquifers. A copy of this thesis has not been supplied and therefore its relevance is not established. The town offered no correlation between the situation studied by Turay and this mining project except to say that both involve the removal of vegetation and topsoil, which was apparently related in the Turay study to an increase in mineralization and nutrients. This correlation is too weak to establish a basis for further inquiry.

The town's other offer is a 1980 study by J.P. Wrobel, addressing groundwater impacts from gravel lakes near Munich, Germany. A copy of this study, translated from the German, has been provided by the town, but there is no connection established to activities proposed at the Gabel/Thomas site. Staff's review of the study suggests an important distinction: that the lakes in the German study were sealed, preventing groundwater movement through them and creating conditions unlike what would happen here. The town did not respond to this distinction, which weakened its offer of proof and ultimately negated this issue.

As no showing was made how the project would violate any DEC water quality standard in Part 703 or elsewhere, the Applicant is not obliged to address mineralization as a pollution threat pursuant to 6 NYCRR 422.2(c)(4). No issue is raised as to this or any other Department requirements, including those under SEQRA.

(2) Spill-Related Groundwater Contamination

The town is concerned that as the lake is created, there will be an increased threat of spill-related groundwater contamination. This threat is perceived from the use of on-site petroleum storage tanks, the fueling of vehicles from pickup-mounted fuel tanks, and the use of trucks, backhoes and other heavy equipment.

Like the one preceding it, this proposed issue is framed in relation to 6 NYCRR 422.2(c)(4), which requires the Applicant to describe, as part of its mining plan, how pollution will be prevented. The Applicant has fully addressed the issue of spills in its mining plan (see particularly Section 2.2.2.4, Maintenance Facilities) and also under the heading of "Spill Prevention" (Section 5.1.2.1.2.) in the draft EIS. The draft EIS contains five procedures to prevent fuel, lubricant or hydraulic fluid spills, which are incorporated as permit requirements pursuant to Special Condition No. 7. According to this condition, all refueling and equipment maintenance other than emergency repairs must be done on a bermed concrete or other impermeable surface equipped with an oil collection facility.

The town's filing fails to recognize or account for the draft permit conditions or to otherwise support its claim that prevention and remediation methods already proposed are not sufficient to minimize water quality impacts. Also, sections 422.2(b)(4) and 422.2(c)(3)(vi) do not provide authority for the contentions asserted by Mr. Smith in his January 26, 1994 submission. Therefore, no issue exists on spill prevention.

OTHER GROUNDWATER MATTERS

  • The town asserts that the Applicant's EIS analysis of the hyrdologic budget before and after mining, which shows an increase in recharge, is incorrect, in violation of 6 NYCRR 422.3(d)(2)(iii). Actually, 6 NYCRR 422.3(d)(2)(iii) requires that in developing a reclamation plan, every reasonable effort shall be made to minimize the disturbance of the prevailing hydrologic balance at and adjacent to the mine. The town's citation is inappropriate, and therefore no issue is raised. However, the parties' respective assertions regarding the hydrologic budget are key to the issue of groundwater quantity impacts, which shall be adjudicated and on which the Applicant has the burden of proof.
  • The town asserts that the existing groundwater table map presented as part of the supplemental draft EIS is erroneous and does not satisfy the regulatory requirements of 6 NYCRR 422.1(c)(5) and 617.14(f)(2). Again, the citations are inappropriate. Section 422.1(c)(5) seeks a map as part of the mining plan which locates the groundwater table, but does not address disputes other parties may have about that water table's depiction. Section 617.14(f)(2) states that the body of a draft EIS shall contain a concise description of the environmental setting of the areas to be affected, sufficient to understand the effects of the proposed action and alternatives. That is contained in section 3.0 of the draft EIS. Needless to say, water tables before and after mining are relevant to the issue of groundwater quantity impacts, and will be considered in that context.
  • The town asserts that the methods presented in the final lake elevation and groundwater gradient analyses which are part of the supplemental draft EIS remain inconsistent with accepted hydrogeologic practices, in violation of 6 NYCRR 422.3(d)(2)(iii) and 617.14(f)(3). Section 422.3(d)(2)(iii) is set out above; again, it has been used inappropriately. Section 617.14(f)(3) states that the body of a draft EIS shall contain a statement and evaluation of the impacts of a proposed action. That is contained in section 4.0 of the draft EIS.

SLOPE STABILITY

The town has raised a hearing issue concerning the structural stability and integrity of a proposed residual embankment along the south and west boundaries of the mine. This embankment would function as a dam or impoundment separating the lake from wetland AR-13 and the aggregate processing and manufacturing area, which would have surface elevations lower than the projected lake level.

The Applicant's supplemental draft EIS contains what is identified as a "slope stability investigation" prepared by Gregory Gifford of Gifford Engineering in Schenectady, New York. Mr. Gifford performed a subsurface analysis, placing nine test pits along the projected lake boundary. Based on stability and water seepage analyses, Mr. Gifford concludes that the embankment design is extremely safe and suitable as an impoundment for the proposed lake.

Staff has adopted the Gifford analysis, but the town has not, providing its own report, dated January 25, 1994, by Jeffrey Evans, a consulting engineer in Lewisburg, Pa. Assessing such factors as steepness of slopes, soil composition and patterns of groundwater flow, Mr. Evans concludes that slope instability can be expected. To increase the safety factor to an acceptable level under what he considers the realistic assumption that seepage will occur, Mr. Evans contends that below-water excavation slopes must be redesigned, flattening slopes that now are proposed at a 1.5 H to 1.0 V grade. If the slopes are not redesigned, Evans predicts progressive slope failure, otherwise known as "sloughing", and a gradual recession of the lake shoreline.

The Evans analysis raises as a hearing issue the structural stability and integrity of the proposed residual embankment. This issue concerns both the potential for "sloughing" due to steep excavation slopes and the potential for internal erosion (or "piping") which is addressed by the Gifford report and Staff's draft permit. Mr. Gifford does not foresee piping occurring due to a projected low hydraulic gradient. Nonetheless, he notes that it could result from unforeseen conditions "such as a thin permeable layer confined by sandy clayey silt within the zone of seepage."

The structural stability and integrity of the embankment to be created are key to the ultimate success of the Applicant's reclamation objectives. The Commissioner has noted that in order to permit a project, "there must be a reasonable basis to conclude that the design objectives are achievable. Where such assurances have not been demonstrated to exist, approval risks failure which may force difficult decisions to delay construction or even to abandon the project. For these reasons it should be clear that the agency should only approve a project where all of its necessary components can be judged feasible and in accordance with regulatory requirements." [In the Matter of the Application of CECOS International, Inc., Decision of the Commissioner, March 13, 1990.]

Relevant regulatory requirements here include 6 NYCRR 422.3(d)(2)(iv)(b) ["All water impoundments shall be designed and constructed in accordance with acceptable engineering practice"] and 422.3(d)(2)(v) ["All mines faces shall be treated in such a manner as to leave them in a condition which minimizes the possibility of. . . slope failure and collapse"].

Staff has addressed this issue with several special draft permit conditions. One (No. 20) reserves to DEC the right to require any necessary repairs to maintain the integrity of the embankment. Another (No. 19) requires that mining and reclamation in the affected area be performed under the supervision of and monitored by a state-licensed qualified geotechnical engineer. This engineer would identify conditions which might compromise the integrity of the embankment, particularly by seepage and piping, and assess the need for remedial measures in the event such conditions are identified. Remedial measures would then be recommended to the Department; upon Department approval, completion of these measures would be required prior to acceptance of the western mine boundary reclamation (special draft permit condition No. 28).

Staff apparently assumes that any conditions potentially compromising the embankment can be identified and corrected before actual damage occurs, and that reclamation as proposed can be achieved. This needs to be demonstrated as part of the hearing process; otherwise, approval risks creating a design that cannot be realized or will not be successful.

NOISE IMPACTS

The town proposes as a hearing issue off-site impacts from noise associated with the mining operation. All the parties agree there is no relevant noise standard within the Mined Land Reclamation Law or its implementing regulations. Instead, the town proposes this issue under SEQRA, claiming that all practicable measures to mitigate noise impacts have not been implemented.

The town's filing includes a report, dated January 27, 1994, by John Earshen of Angevine Acoustical Consultants, Inc., of East Aurora, New York. This report (the "Earshen" report) responds to a noise analysis, dated November 1993, which is part of the draft supplemental EIS.

The draft EIS contains a section (5.2.6.2) addressing measures that have been taken in the mining plan to minimize noise and reduce off-site impacts. These measures have been incorporated to the draft permit pursuant to special condition No. 1b, and have been amplified by other permit conditions referenced below.

Basically, noise mitigation is anticipated by a number of means which are part of the project design. A continuous screening berm no less than 25 feet higher than the floor of the processing plant will be constructed at the western and southern edges of the aggregate processing area (special draft permit condition No. 4). Another berm between 8 and 10 feet tall will screen the north, south and east perimeters of the mining site (special draft permit condition No. 10). Natural berms will be created by the active mine faces, which will act to reduce noise levels when equipment is operating. Equipment is to be muffled to meet standards set by the Mine Safety Health Administration, and employees will be instructed in the operation of equipment to reduce noise.

Even with this and other mitigation proposed by the Applicant, there is no question that noise will result unavoidably from the mining operation. At Staff's request, Spectra Environmental Group Inc. of Latham, New York, and Vibra-Tech Engineers, Inc., of Hazleton, Pa., performed a noise analysis which is part of the supplemental draft EIS. This was done by reviewing the noise levels anticipated at the Gabel/Thomas site against an Environmental Protection Agency (EPA) normalized day/night sound level method endorsed by a Dr. Driscoll of the Public Service Commission and, incidentally, accepted by Mr. Earshen on behalf of the town.

As part of its noise analysis, the Applicant considered noise levels now generated by equipment at its Chaffee mine, with the understanding that equipment used at the Gabel/Thomas site would be comparable acoustically. The processing plant was fixed at a height and location which has now been incorporated to the special draft permit (condition No. 26d). Based upon this location and considering the attenuation of screening berms and stockpiles, the Spectra/Vibra-Tech analysis concluded that off-site noise levels would be within acceptable limits.

Significantly, the Earshen report agrees that this analysis indicates "acceptable impacts under narrowly defined operating conditions provided that machines [at the Gabel/Thomas site] that are acoustically similar to those presently in use at the Chaffee mine are employed." The report continues that certain receptors were overlooked and that no explicit analyses were performed for certain equipment. However, no showing is made of significant off-site impacts, or that noise sources alleged to have been overlooked (dredges and drag lines, for example) would generate more noise than sources, like loaders, that were actually evaluated.

As with other public comments, the Earshen report will have to be addressed as part of the responsiveness summary, to become part of the final EIS. But it does not provide a basis for further inquiry or otherwise raise an issue for adjudication.

ARCHEOLOGICAL IMPACTS

Upon application of the Department's Bureau of Environmental Crimes Investigation (BECI), a search warrant was apparently executed last year against the offices of the Applicant and a return filed with the Cattaraugus County Court. Upon information and belief, the town contends that the warrant sought evidence relative to the preparation of this application, including archeological data. The town did not reveal the source of its knowledge, and made no offer as to what had been sought or recovered.

The town asserts that it has requested from the Applicant copies of the search warrant, the search warrant application, and the search warrant return. But the Applicant has not provided these materials, and the town now asserts that it is prejudiced in its ability to provide comment. Therefore, the town requests that it be provided this information, that this information become part of the hearing record, and that an additional comment opportunity be provided, presumably to raise issues.

At the issues conference the town asserted no authority by which the ALJ could order the release of documentation from the Cattaraugus County Court.

Securing the documentation from Department Staff raises a separate question. It is not clear what documentation is in the custody and control of the BECI unit, only that it has not been seen or considered by permitting staff. As such documentation might have some bearing in this matter, it should be available to the ALJ as representative of the Commissioner.

Therefore, Staff counsel Mr. Stever shall secure from the BECI unit and provide to the ALJ the information requested by the town. This shall include the search warrant, the warrant application, and any return that is within the Department's custody and control. Because of the nature of this information, it shall be provided to the ALJ ex parte so he can determine what relevance it might have in this matter. In its transmittal, Staff shall indicate what grounds exist to prohibit disclosure of this information to the other parties or to the public in general.

Rulings are reserved as to impacts to archeological resources and any other issue that might arise from the ALJ's in camera review.

IMPACTS TO HISTORIC PROPERTIES

Section 14.09 of the Parks, Recreation and Historic Preservation Law requires that prior to approval of any private project by a state agency, that agency shall give notice, with sufficient documentation, to and consult with the Office of Parks, Recreation, and Historic Preservation (OPRHP) concerning project impacts. This shall be done if it appears that the project may or will cause any change, beneficial or adverse, in the quality of any historic property that is listed in the state or national register of historic places or determined eligible for listing on the state register by OPRHP.

An OPRHP letter dated December 28, 1993 (attached to these rulings as Appendix "B") indicates that DEC's consultation with OPRHP is not complete and that OPRHP is aware of at least three areas adjacent to the project site - - two homesteads and a cemetery - - that may be affected by the proposed gravel mine. Staff has forwarded this correspondence among the comments it has received on the draft EIS. But it has not indicated what response it has made; as a result, it is unclear whether DEC has fulfilled its duties under this section. Therefore, Staff shall file a report with the ALJ, copied to the other parties, indicating the status of its consultation with OPRHP. This shall include all correspondence between DEC and OPRHP subsequent to the December 28 letter.

SITE RECLAMATION

The town asserts that the Applicant's reclamation plan does not comply with 6 NYCRR 422.3(b) in that it does not "provide for the development of the affected land either to a condition or physical state which is similar to and compatible with that which existed prior to any mining or which encourages the productive use of land."

The land now exists predominantly as open fields which had been used for farming. The Applicant's reclamation objective is the creation of a lake more than 200 acres in size, which would be surrounded by open meadow. Although not part of the objective, development of the area adjacent to the lake for housing and recreation is a possible final use.

Section 422.3(b) requires at minimum that land be returned to a state that encourages productive use. Productive uses are defined [at 6 NYCRR 420.1(s)] to include, among others, the protection and enhancement of wildlife and aquatic resources, and the establishment of recreational and residential sites. These uses are planned or at least certainly possible once this project is completed.

Section 422.3(b) does not require that the land be reclaimed to some optimal use or the one most desired by the locality. There is no question that if the site is reclaimed as planned, it will encourage productive uses. Therefore, no issue is raised.

AGRICULTURAL IMPACTS

Excavations below the water table at the Gabel/Thomas site are anticipated to result in the gradual removal of about 210 acres of farmland, which will be converted to a lake. Department Staff considers this loss of prime agricultural soils to be a significant environmental impact which requires mitigation under SEQRA. In the draft EIS (section 5.2.2.1) the Applicant proposes an agricultural mitigation plan. This plan has been incorporated to the draft permit pursuant to special condition No. 18.

In its filing for party status, the town argues that the plan is vague and perhaps unenforceable. This is a legitimate concern. As contained in the draft EIS, the plan is that the Applicant "will work with" local farmers to improve areas of land that are not currently well suited for agricultural use. It states that the Applicant "would have the ability" to secure development rights to agricultural lands in the region which would then be deeded into conservation to protect the agricultural character of the land.

"To the greatest extent feasible," the plan is set to commence on an acre-for-acre basis as land is removed from agricultural production at the Gabel/Thomas site. Based on the issues conference discussion, what this means is that as acreage is lost at the mining site, an equivalent amount of acreage elsewhere would have to be benefited. This standard needs to be made explicit in the permit, as do the mechanisms and timetable by which success would be measured.

Therefore, Staff shall provide the ALJ, with copies to the other parties, revised language for special permit condition No. 18. This condition shall not incorporate by reference the draft EIS provisions, since they are unduly vague. Staff's revised language shall specify the acre-for-acre standard by which success will be judged, the targeted mitigation area (which is apparently southern Erie County, south of Route 20A) and acceptable mitigation methods. (These methods apparently include securing development rights and conservation easements on other properties, and assisting local farmers by offering grading, drainage, and erosion control improvements with machinery, personnel or funds. A list of specific projects is admittedly unrealistic, and is therefore not required.)

Staff shall work with the Applicant in developing appropriate language. In its transmittal, Staff shall indicate whether its language has been accepted by the Applicant. If it has not, the Applicant shall then have an opportunity to provide its comments on the permit revision.

DEPARTMENT OBLIGATIONS UNDER ECL SECTION 23-2711(3)

In 1991, the Mined Land Reclamation Law was amended to prohibit local laws from regulating state-controlled mining and reclamation activities [ECL Section 23-2703(2)(a)]. As part of the apparent bargain for this change, another provision [ECL 23-2711(3)] was added to ensure localities an opportunity to express their concerns to DEC.

ECL Section 23-2711(3)(a) provides that upon receipt of a complete application for a mining permit, DEC shall provide notice to the chief administrative officer of the political subdivision in which the proposed mine is to be located. This is to provide that officer an opportunity to make determinations in regard to setbacks, access-restricting barriers, control of dust, hours of operation, and any mining prohibitions for the location proposed in the application.

The town now asserts that it made the determinations provided for in ECL 23-2711(3)(a), and that it provided them to Staff and the Applicant, as is required by this statute. The town claims these determinations are not incorporated in the draft permit, and that the Department has not furnished the town a "written statement. . . as to reason or reasons why the whole or part of any of the determinations was not incorporated" [ECL 23-2711(3)(b)].

Therefore, the town submits that (1) a hearing should be held as to the reasonableness of its determinations, and (2) the hearing report and final EIS should require that the town's determinations be incorporated to the permit or, in the alternative, explain why this shall not be done.

This project application was noticed as complete on May 12, 1993. On June 9, 1993, Philip Feraldi, then the Sardinia town supervisor, wrote to Kenneth Taft of DEC's Region 9 office. His letter contained determinations made by the town as to setbacks, barriers, hours of operation, and dust control. For purposes of ECL 23-2711(3)(a), this and a subsequent letter, dated July 14, 1993, from the town's special counsel, Mr. Seeger, are the relevant correspondence. Correspondence from Mr. Schiener, who is the current town supervisor, need not be addressed pursuant to this section.

ECL 23-2711(3)(b) provides that if the department finds that the determinations made by the local government are reasonable and necessary, they shall be incorporated into the permit, if one is issued. If the Department does not agree that the determinations are justifiable, then the department shall provide a written statement to the local government and the applicant as to why any determination was not incorporated.

At the ALJ's request, Department Staff has provided a memorandum indicating the extent to which its draft permit conditions are different from those proposed by town, and the reasons for Staff's determinations. This has been considered in determining whether an issue exists as to the reasonableness and necessity of any condition proposed by the town.

However, the town is not entitled to a hearing on the reasonableness of its determinations simply because they have not been fully incorporated to the draft permit. The statute requires that the town's determinations "shall be accompanied by supporting documentation justifying the particular determinations on an individual basis" [ECL 23-2711(3)(a)]. A hearing is only required if there are issues which are substantive and significant, resolution of which may result in permit denial or require major modification to the project or the imposition of significant permit conditions [6 NYCRR 624.6(c)]. This is the standard against which the town's entire filing must be judged.

SETBACKS

The town asserts that "life of mine" boundaries should be set back a minimum of 500 feet from public roadways or 300 feet from all adjacent property boundaries. Setbacks fixed in the mining plan (section 2.3.5) are at least 25 feet from all adjacent property lines, which is the minimum set by 6 NYCRR 422.2.

The town asserts that greater setbacks are required to ensure compliance with accepted noise criteria and standards. These criteria and standards are not identified and this claim is not substantiated. Nothing has been submitted to rebut the Applicant's claim, documented in the supplemental draft EIS, that off-site noise will be at acceptable levels, given existing ambient conditions.

The town proposes that setbacks along Allen Road be increased to 1000 feet, to allow for future residential development. Staff's draft permit (special condition No. 3) requires that final setbacks from the property line to the edge of below water excavation north of the mine entrance along the east and north mine boundaries (generally between the mine property and Route 16, the Hamlet of Chaffee, and Allen Road) shall not be less than 300 feet, in order to provide opportunity for future lakeshore development, and to allow for unpredictable shoreline impacts (i.e., erosion and slumping). Staff based its condition on minimum lot dimensions for buildings found in the Sardinia zoning ordinance. Staff believes a minimum 300-foot setback for below water excavation, generally along east and north mine boundaries, will reasonably ensure an opportunity for post-reclamation productive use, as is required by 6 NYCRR 422.3(b), while not restricting unduly the size of the mine. The town has not justified how the setbacks proposed by Staff will preclude residential development.

Finally, the town wants greater setbacks for screening berms now proposed along Allen and Genesee roads. The town thinks this would ameliorate visual and noise impacts. No substantiation is provided, and therefore no issue is raised.

The setbacks proposed for the Gabel/Thomas site do not raise issues for adjudication.

TREE PLANTINGS

The mining plan (section 2.3.4) provides that, for future screening purposes, trees will be planted at selected locations along the top of a screening berm that will encompass the north, east and south perimeters of the mining limits. The town asserts that no information is available about the number of trees to be planted, where and when they will be planted, what kind of trees will be planted, and how they will be planted (depth of topsoil, time of year, etc.). Therefore, it claims, the plan is so tenuous as to be unacceptable.

The efficacy of a tree planting plan could raise an adjudicable issue if that plan was essential to the amelioration of some significant environmental impact. [See, for example, In the Matter of Peckham Materials, Decision of the Commissioner, January 28, 1994, where tree plantings were essential to mitigating visual impacts from a nationally registered historic landmark.] That is not the case here; the trees were not proposed or considered as a significant part of, say, a noise or visual impacts analysis.

The town calls attention to 6 NYCRR 422.2(c)(4)(iii), which provides that trees may be used for screening as part of a plan to minimize mining effects. Again, the trees are not proposed as a mitigative device; therefore, the detail sought by the town is not required.

SOIL PLACEMENT

The mining plan (section 3.3.6) provides that the affected area above the level of the lake will be covered with at least six inches of overburden (elsewhere identified as topsoil) and prepared for reseeding.

The town asserts that the information regarding topsoil placement is inadequate and needs clarification. However, it has not provided a relevant citation to the Department regulations.

6 NYCRR 422.3(d)(2)(vi)(a) provides that a minimum of six inches of cover material with a soil composition capable of sustaining plant growth shall be provided on all land to be revegetated. The mining plan conforms to this standard. The town has offered no reason to doubt that the plan will be realized. Therefore, no issue is raised.

DISCREPANCIES IN SLOPE CALCULATION

The town asserts that the mining plan and draft EIS contain discrepancies with regard to reclamation slopes. This has been addressed by special draft permit condition No. 1d, by which a figure in the draft EIS (at page 2-27) shall prevail over conflicting parts of the mining plan. As noted above, the issue of slope stability has been certified as a hearing issue.

SEPARATION FROM GROUNDWATER

The town voices concern about the Applicant's maintaining its proposed five-foot vertical separation between the water table and excavations in the aggregate processing area. These concerns have been addressed in the supplemental draft EIS to Staff's satisfaction. The town's concerns are not substantiated by proposed expert testimony. Therefore, no issue is raised.

SEQUENCE OF EXCAVATION

The town asserts that the Applicant's description of the sequence of excavations violates 6 NYCRR 422.2(c)(3). That section requires that the excavation sequence be described as part of the written portion of the mining plan. The mining plan contains a section (2.2.2.3) addressing the sequence of excavation. It notes that excavation will proceed above and below the water table concurrently; that initial excavations will begin within the plant area and proceed in a north-northwest direction; and that below water table excavations will begin once a sufficient area has been mined above the water table. This information provides an adequate understanding of the sequence (or order) of excavations. Therefore, no supplementation is required unless warranted later as part of the adjudication of issues.

DEPTH OF EXCAVATION

The town asserts that the mining plan contradicts itself on depths of excavations, in violation of 6 NYCRR 422.2(c)(3). Section 422.2(c)(3) does not require that depths of excavation be explained. Even so, the point is addressed in two separate sections. One section of the plan (2.2.2.3; sequence of mining) states that below water excavation is expected, depending on the depths of the reserves, to reach depths of 70 to 80 feet over the mining site. Another section (3.3.5; water impoundments) describes the lake's depth as between zero and approximately 100 feet, with the deepest sections toward the middle.

Except by approximation, final lake depths are not established by the mining plan. They are not depicted on the Applicant's maps. The town asserts that to adequately evaluate the project, and to ensure consistency between the Applicant's plans and its consultants' assumptions, the mining plan must be "re-created" to address the ultimate vertical extent of excavations and the progression of excavation, not just for the initial phases, but for the entire life of the mine. It has not yet been shown how doing this would affect consideration of environmental impacts. Therefore, the town's request is denied.

ALTERNATIVES

  • The town asserts that the alternatives analysis under SEQRA can and should address alternative sequences of mining and how they might affect the water table, noise impacts (particularly on the hamlet of Chaffee) and community character and growth. The town proposes no particular alternatives, nor has it established how alternative sequences of mining would affect the issues cited above. The Commissioner has ruled that "it would only be necessary to develop a record on additional alternatives if the project as proposed will have some unmitigable significant adverse impacts" [In the Matter of Peckham Materials, Interim Decision, January 27, 1992]. This has not yet been shown.
  • The town asserts that the SEQRA alternatives analysis is flawed because it omits any positive impacts the "no action" alternative would have on the locality. The town has cited no authority for requiring this discussion; on the other hand, DEC's SEQR Handbook (November 1992; at page 65-66) states that "the "no action" alternative is particularly relevant for agency direct actions where the expenditure of public funds must be justified. For many private actions, the "no action" alternative may be simply and adequately addressed by identifying the financial effects of not undertaking the action." For these reasons, no supplementation is required.
  • The town asserts that the SEQRA alternatives analysis requires the Applicant to discuss alternative sites it owns or controls throughout western New York and not just in the Sardinia vicinity. This would be unduly onerous in light of one of the main apparent purposes of the Gabel/Thomas site, which is to be a successor to Gernatt's Chaffee operation about one mile away. According to the draft EIS discussion of alternative sites (at section 7.2), the Chaffee operation will reach its limits of mining in about five years. Also, the Gabel/Thomas site is the only one Gernatt owns, other than the Chaffee operation, which can supply approved materials meeting DOT specifications. The Applicant's interests in finding a site that would sustain existing operations within the same market area warrant the geographic restriction made in the draft EIS for considering alternative sites.
  • The town asserts that the SEQRA alternatives analysis fails to substantiate the Applicant's claim that any downsizing of the operation would make it economically unfeasible. This is true. The reasons offered by the Applicant start-up costs and the uncertainty of the permitting process are factors affecting an operation of any size. Even so, the discussion of differently scaled projects (both larger and smaller) is at a level of detail sufficient to permit a comparative assessment of the alternatives discussed [6 NYCRR 617.14(f)(5)(iii); draft EIS section 7-2].

In conclusion, no supplementation of the alternatives section of the draft EIS is required.

DEPICTION OF PROCESSING PLANT

The town contends that the processing plant has not been depicted on the mining plan map, in violation of 6 NYCRR 422.2(b)(4). This section requires that the graphic portion of the mining plan contain information depicting the location and size of areas of mineral preparation and processing. The mining plan map now outlines what is identified as "the aggregate processing and manufacturing area." Pursuant to special draft mining condition No. 26d, this map shall be revised to show the location, orientation and floor elevation of the processing plant, consistent with a figure in the supplemental draft EIS. The revision of the mining plan map, consistent with this condition, will address the town's contention.

ON-SITE MANUFACTURING

The town states that the mining plan's reference to the aggregate processing area as an "aggregate processing and manufacturing area" suggests that the Applicant desires some manufacturing activity distinguishable from processing.

This concern was raised with the Applicant and assurances were provided that no manufacturing activity is contemplated. The draft permit authorizes only a material processing plant with a crusher, screen and conveyors. Special draft permit condition No. 21 provides that the permit does not authorize the manufacture of concrete and/or asphalt at this site.

DUST IMPACTS

The town raises concerns about the control of dust from the project site.

Significant dust impacts are not expected by either the Applicant or DEC Staff. According to the draft EIS, the processing operation, which includes washing, will saturate the material with water, preventing the emission of dust during processing or stockpiling. Sand and gravel mined from above the water table are expected to have a moisture content sufficient to prevent dust emissions. Material mined from above the water table will be thoroughly wetted as it enters the processing plant where it will be washed and screened under saturated conditions. Finally, material excavated from below the water table is inherently saturated and therefore does not generate dust.

Special draft permit condition No. 9 provides for control of fugitive dust. Dust generated by truck traffic will be mitigated by water trucks spraying sand and gravel roads and by surfacing the first 200 feet of the access roads with bituminous concrete, which will be swept periodically to prevent trucks from tracking dust onto Genesee Road and NYS Route 16. Vehicle speeds will be controlled to minimize the amount of dust that is generated.

The draft EIS (at section 4.1.3.2) concludes that most fugitive dust will remain on the Applicant's property, based on assessments of average local wind speed and direction, estimates of typical particle size, and EPA studies which gauge the distance particles will travel. But as the town points out, the Applicant has not addressed all particle sizes or commonly-occurring cases of relatively high wind speeds. Also, the calculation of average local wind speed (11.1 MPH) is not substantiated in the draft EIS.

The filing of the town (particularly Mr. Seeger's letter of July 13, 1993) raises sufficient doubt about the impacts of fugitive dust and whether they have been adequately mitigated that this presents an issue for adjudication. As part of this issue, the reasonableness and necessity of additional and more definite dust control measures, as proposed by Mr. Seeger, shall be considered pursuant to ECL Section 23-2711(3). These measures include a vehicle washing policy, the enclosure and covering of stockpiles, and assurances that sufficient equipment and water would be available to respond quickly to any dust nuisance condition.

RECLAMATION PLAN MAP

The town asserts that the Applicant has failed to comply with 6 NYCRR 422.3(c)(2). This section requires that the reclamation plan present in graphic form a grading plan which illustrates, by use of contours or accompanying cross sections, the proposed final grades that are to be established on the affected land insofar as it is possible to determine.

The current reclamation map (dated 12/3/93) lacks this information, although a final groundwater contour map, included as part of the supplemental draft EIS, contains final reclamation topographic contours, at one-foot intervals, for the entire site, with the exception of the lake, for which a predicted surface elevation is given. This information should be transferred to the revised reclamation plan map which is anticipated pursuant to draft special permit condition No. 24.

On a related point, the town asserts that the reclamation map violates 6 NYCRR 422.3(c)(3), which requires an illustration of the proposed final stage of reclamation for all affected land.

The reclamation plan states (at section 3.1) that above water areas will be sloped and graded to allow for such uses as pastureland, farm land and open space. The town contends these uses are not distinguished as three separate areas on the reclamation plan map, and that "this is imperative if the reviewer is to be able to understand the Applicant's reclamation plan."

It is not apparent why such detail is necessary either to understand the project or to make regulatory determinations. The three uses described are merely possibilities. The reclamation plan anticipates only that the above-ground areas will be graded to the contours described and revegetated. Ultimate uses would be determined after the project ends, some 80 to 100 years from now.

SOLE SOURCE AQUIFER

The town is concerned that there is no reference to the statement in the draft EIS (at section 3.1.2.4.1.1) that DEC does not concur with EPA's designation of the Sardinia aquifer as a sole source aquifer. At the issues conference, the Applicant explained this reference as an EPA notice published in the Federal Register on September 25, 1987, which announced the sole source designation. Under a section of the notice discussing public comments, it reportedly states that DEC expressed opposition to the designation based on the nature and extent of the aquifer, the limits of the designation area and calculations that less than 50 percent of the population in the petition area is dependent on the groundwater supply.

The designation of the Sardinia aquifer as a sole source aquifer under the federal Safe Drinking Water Act does not affect any DEC permitting requirements. The state has its own definition of "sole source aquifer" at ECL Section 1-0303(24). That definition is an aquifer system that meets the EPA designation and which, if contaminated, would create a significant hazard to public health. DEC has not designated the Sardinia aquifer as a sole source aquifer pursuant to the ECL. Also, the town makes no offer that whether it has or should have this designation affects the standards for project review. Therefore, no issue exists.

HOURS OF OPERATION

The draft mining permit (special condition No. 6) fixes hours for all mine operations as between 7 a.m. and 5 p.m. Monday through Friday, although material may be loaded for sale from 6:30 a.m. to 6:30 p.m. Monday through Friday and from 7 a.m. to 4 p.m. on Saturday.

  • The town opposes operations on Saturdays during the period between Memorial Day and Labor Day since this is alleged to be the period of highest weekend use of the two town parks that are in close proximity to the site. It is alleged that Saturday operations will create a nuisance condition at the parks and nearby residences. The nature of this nuisance is not explained. Staff argues correctly that since summer is the main work season for gravel mines, compelling justification would be required in order to prohibit Saturday operations. Noting this and in light of the town's poor offer of proof, no issue is raised.
  • The town opposes the broader allowance for loading operations, arguing that for operations before 7 a.m., a 47 dB standard should be set. The rationale for this standard is not explained, except to note that it is "borrowed" from 6 NYCRR Part 360, which at any rate does not govern this project. Staff notes that the hours of 6:30 a.m. to 6:30 p.m., specified in the draft permit, are not significantly different from hours for other mine operations, especially in the morning. Based on experience with other mines, Staff states that it would put the Applicant at a serious competitive disadvantage to further restrict loading hours. For these reasons, no issue is raised.

TRAFFIC IMPACTS

The town asserts that the Applicant's traffic study (draft EIS volume II, appendix VII) is flawed, which is in fact the case. The traffic study examines what it describes a "worst case scenario" which was developed for the purpose of considering maximum possible impacts of the mining operation, once all processing equipment and activities are relocated from the Applicant's existing Chaffee location to the Gabel/Thomas site.

This scenario involves 15 loaded trucks leaving the site, 15 trucks returning to the site, and 10 automobiles/pickup trucks entering and exiting the site during each hour. However, the draft EIS (at section 2.2.1.6) indicates that an average of 25 trucks per hour during peak demand hours will leave the site after the processing plant is constructed and producing finished saleable aggregate.

The town's concern was first raised in comments filed last summer in response to Staff's acceptance of the draft EIS. In its response to these comments (issues conference exhibit 9A, page 28) the Applicant indicated that analyses of various traffic loads larger than first estimated have since been performed, and that the results are consistent with the initial study's findings. The calculations in the subsequent analysis have not apparently been made part of the record, only the conclusions in terms of graded levels of service. This information needs to be provided before this matter is revisited. It is reasonably required to make Department findings or determinations concerning the traffic impacts issue [6 NYCRR 621.15(b)].

MANMADE OR NATURAL BARRIERS

Pursuant to ECL Section 23-2711(3)(a) the town proposes that a screening and access restricting berm be constructed within the life of mine around the entire mine. This would be 8 to 10 feet tall with a slope not to exceed one foot of vertical rise for every 5 feet of horizontal distance. The berm would be constructed to be as aesthetically and naturally appearing as possible, with appropriate vegetative ground covers, shrubs, and trees. Where practicable, the berm would meander so as to better blend with the natural surroundings.

The town also proposes that any fencing that is visible from the public roadways be constructed of aesthetically pleasing materials such as split rail fence. Any chain-link fence that is required would be on the back side of the berm between the berm and the mine.

As DEC Staff points out, berms are already proposed pursuant to special conditions No. 4 and 10 of the draft permit. Staff believes that the perimeter berm and its landscaping, as proposed by the Applicant and required by draft conditions, will meet all pertinent mitigation objectives. The additional measures proposed by the town are apparently based on aesthetics, but no clear justification has been provided. Therefore, no issue is raised as to whether these additional measures are reasonable and necessary.

STATUS OF APPLICATION

As a final point, the town has concerns about the status of this application in light of its unusual history. Last summer the Applicant prepared a so-called "final EIS" for this project (now denoted as a response to comments on the draft EIS; issues conference exhibits 9A and B). This document is noted as having been filed with DEC on July 30, 1993. On August 11, 1993, a notice appeared in DEC's Environmental Notice Bulletin (ENB) stating that the final EIS had been completed by DEC. In fact, DEC never formally accepted the final EIS, and a retraction notice was published in the August 18, 1993 ENB.

On August 18, 1993, Staff also denied the application without prejudice to the Applicant providing additional information in a new or modified application. After this letter was issued, Staff and the Applicant agreed that the additional information would be provided as part of a supplemental draft EIS, which was accepted by Staff on December 15, 1993.

As was noted at the outset of the issues conference, the application is considered to be pending. A final determination on the application will be made at the conclusion of the hearing process. The so-called "final EIS" is being considered only as the Applicant's response to comments made in relation to the draft EIS. Since many of these comments are incorporated to the town's issues conference filing, the response to comments can be considered as part of the Applicant's rebuttal.

OTHER ISSUES

All other proposed issues not explicitly addressed by these rulings have been considered and have been found not to raise matters for adjudication or to require the provision of additional information at this time.

PETITION FOR PARTY STATUS

Neither the Applicant nor DEC Staff objected to the town's demonstration of sufficient social, economic, or environmental interests, which is required for party status at an adjudicatory hearing [6 NYCRR 624.4(b)]. As the town has raised issues that require adjudication, it is hereby granted party status.

SUMMARY OF RULINGS

  1. Three issues have been raised for adjudication:
    • Project impacts upon groundwater quantity, including impacts to neighboring wells and surface water bodies;
    • Structural stability and integrity of a proposed residual embankment along the south and west mine boundaries; and
    • Impacts of fugitive dust.
  2. Not having demonstrated its asserted exemption, the Applicant shall file an air permit application for its proposed processing plant. The Applicant shall also file additional information, as noted in these rulings, bearing upon its traffic impacts analysis.
  3. Department Staff shall forward to the ALJ any documentation in the agency's custody and control that responds to the town's request for information, raised in the context of archeological resources. Staff shall also file a report with the ALJ indicating the status of its consultation with OPRHP, which bears on potential impacts on historic resources.
  4. The town is granted party status for purposes of an adjudicatory hearing, the dates of which will be set after any appeals to these rulings are decided.
  5. In anticipation of appeals, deadlines for the receipt of documentation required by these rulings shall be fixed once the appeal period has expired or, if appeals are filed, after they are decided.

APPEALS

Pursuant to 6 NYCRR Sections 624.4(d) and 624.6(d), the rulings of the ALJ denying or limiting party status and setting forth the issues for hearing may be appealed in writing to the Commissioner within three days of the rulings. Allowing extra time for the parties' convenience, and recognizing the length of these rulings, any appeals must be received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-5500) no later than March 21, 1994. Any responses to any appeals must be received no later than April 1, 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

Dated: Albany, New York
March 3, 1994

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