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Gernatt Asphalt Products Inc. - Second Interim Decision, January 25, 1995

Second Interim Decision, January 25, 1995

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

SECOND INTERIM DECISION

January 25, 1995

The attached Hearing Report of Administrative Law Judge ("ALJ") Edward Buhrmaster on the application of Gernatt Asphalt Products, Inc. (the "Applicant") for permits to construct and operate a surface unconsolidated sand and gravel mine in the Town of Sardinia, Erie County (the "Town"), is adopted as my decision on the two issues actually adjudicated to date. Those issues are: (1) mining impacts upon surface water resources adjacent to the project site; and (2) the structural stability and integrity of the proposed residual embankment.

On the first of these issues, I agree with the ALJ that the project will not have significant adverse impacts on the AR-13 wetland, Paradise Lake, Hosmer Brook, or nearby springs. The Applicant's testimony on this issue was basically reliable, whereas the Town's analysis was seriously flawed and involved misuse of a computerized groundwater model.

On the second issue, I accept the ALJ's conclusion that conditions potentially undermining the stability and integrity of the residual embankment are unlikely to occur. The draft mining permit has conditions that adequately address the identification and correction of any minor problems that occur as a result of piping or sloughing. More serious problems that would affect the embankment's role as a water impoundment are not anticipated.

Addressing the Town's appeal of the ALJ's October 5, 1994 Supplemental Issues Rulings, I agree with the ALJ that no issue bearing on the site's archeological resources has been raised based on submittals made to date. However, there is additional documentation not yet already disclosed which may be relevant to assessing archeological impacts.

In my Interim Decision of April 29, 1994, I authorized the Town to make a request of the Applicant for all documentation in its possession which related to archeological resources at the Gabel/Thomas site. The Town made this request and the Applicant complied with it. However, it is now known that the Applicant does not possess copies of all documents that were seized as the result of a search warrant secured from the Cattaraugus County Court by the Department's Bureau of Environmental Crimes Investigation (BECI). This was not apparent at the time I made my prior decision, which was meant to remove the search warrant as an issue in the discovery process but was not intended to substantially limit the documents that were subject to discovery. It is now clear that the decision has limited the documents to which the Town has been given access.

To the extent they relate to the site's archeological resources, additional documents not possessed by the Applicant but which are part of the return on the search warrant should be made available to the Town to the extent they are otherwise discoverable. Between the alternatives proposed by the Town, I hereby direct that DEC Staff secure the documents seized as a result of the search warrant, and to make such court applications as are necessary to accomplish this. The Applicant may make any objections it has to the discoverability of these documents and the ALJ shall decide, based on the parties' arguments and his own in camera review, which documents shall be produced.

Once any additional documents are provided to the Town, it shall have the opportunity to make a revised offer of proof on the archeological issue. After hearing the parties' arguments, the ALJ will decide whether there are issues to be adjudicated or whether some other action is required.

Because the matter of archeological resources is not yet resolved, I cannot now accept a Final Environmental Impact Statement for this project or make the findings required by the State Environmental Quality Review Act.

This hearing is remanded to ALJ Buhrmaster for further proceedings consistent with this Second Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York, this 25th day of January, 1995.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH,
Commissioner

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

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

HEARING REPORT

- by -

____________/s/____________
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

Background and Brief Project Description

Gernatt Asphalt Products, Inc. ("the Applicant") proposes to construct and operate a surface unconsolidated sand and gravel mine. The project would affect about 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.

If approved, mining will occur below the groundwater table in an unconfined sand and gravel aquifer. Mining in this area, part of the Sardinia aquifer, will result in a lake about 80 to 100 feet deep and 200 acres in size. The project also entails construction and operation of a wet-wash material processing plant including a crusher, screen, conveyors, and a closed-loop water circulation system. Reclamation involves the creation of the lake with surrounding meadow for recreation and wildlife habitat. The estimated life of the mine is 80 to 100 years. Mining trucks will access the site from New York State Route 16, which runs along the site's east border.

To construct and operate the 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. For its processing plant the Applicant also seeks an air permit pursuant to ECL Article 19 and 6 NYCRR Part 201. A draft air permit, prepared by DEC Staff, commits the Applicant to use of electrical power for gravel crushing.

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, which required 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 November 24, 1993, was published in the Department's Environmental Notice Bulletin on January 5, 1994. It was published as a legal notice in the Buffalo News on December 29, 1993, the Springville Journal on December 30, 1993, and the Arcade 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, and 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 NYS Route 16 south of the city give it value for serving that region's infrastructure needs. According to these proponents, mining at the site will provide low-cost, high-quality sand for concrete manufacture, as well as 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, as did several Erie County officials.

Project opponents are principally concerned about the impact this project might have upon the Sardinia aquifer, which 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. 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 (which is west of the site) and other nearby streams that are used for trout fishing.

Many Sardinia residents gave statements opposing the mine, saying it would not be compatible with their rural, agricultural community. Frequent concerns were voiced about noise, visual and truck traffic impacts, and impacts 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 prime farmland.

Issues Conference

An issues conference was held on February 1, 2 and 9, 1994, at the Sardinia town offices. Participating at the issues conference were attorneys for the Applicant, DEC Staff, and the Town of Sardinia ("the Town").

Prior to the conference DEC Staff prepared and released a draft mining permit with conditions for the project's construction and operation. That permit has since been revised by directives of the ALJ and the Commissioner.

A copy of the most recent draft permit is attached to this report as Appendix "A". It was furnished under a cover letter dated October 7, 1994, from David F. Stever, assistant Region 9 attorney.

By letter of October 17, 1994, William J. Gilberti, attorney for the Applicant, wrote that his client has reviewed and accepts each and every condition of the draft permit as written.

When the issues conference began, neither the Applicant nor DEC Staff proposed any matters for adjudication. Therefore, the burden fell on the Town, as a prospective intervenor, to raise substantive and significant issues.

The proceedings at the issues conference are detailed in written rulings of the ALJ on party status and issues. In these rulings, which are dated March 3, 1994, the Town was granted full party status and three issues were identified for adjudication:

(1) Project impacts upon groundwater quantity, including impacts to neighboring wells and surface water resources;

(2) Structural stability and integrity of a proposed residual embankment separating the newly-created lake from areas west of the project site; and

(3) Impacts of fugitive dust.

The scope of the first issue - - project impacts upon groundwater quantity - - was narrowed after the Applicant accepted special condition No. 30 in the draft mining permit (attached as Appendix "A"). This condition requires the Applicant to provide potable water should the supplies of neighboring wells become insufficient, unless and until the Applicant can demonstrate that its mining operation is not a contributing cause to the problem. The acceptance of this condition removed impacts to neighboring wells as a hearing consideration, and limited the issue to impacts upon the following surface water resources: the DEC-regulated AR-13 wetland at the site's western edge; Paradise Lake, a 35-acre lake west of the site; Hosmer Brook, a trout stream also west of the site; and various springs on the southern half of the site's western edge.

By an interim decision of April 29, 1994, the Commissioner resolved the parties' appeals of the ALJ's rulings. The Commissioner affirmed the ALJ's rulings requiring adjudication of (1) project impacts upon groundwater quantity and (2) structural stability and integrity of the proposed residual embankment. But as to the third of the ALJ's issues - - impacts of fugitive dust - - the Commissioner said the Town had not demonstrated that additional analysis would be useful to the permit decision. Therefore, he said no additional study was required, and no issue was raised for adjudication.

Reconvening of the Issues Conference - - Unresolved Issues

The ALJ's issues rulings and the Commissioner's interim decision directed certain action by the parties and reserved deciding whether certain potential issues, as proposed by the Town of Sardinia, would require adjudication. After the parties complied with the Commissioner's directives, the issues conference resumed on July 11 and August 19, 1994, again at the Sardinia town offices.

By rulings of October 5, 1994, the ALJ ordered certain changes to Staff's draft permit. The ALJ said that, assuming the permit was revised as he directed, there were no further issues to adjudicate. This ruling was appealed by the Town, and the parties are awaiting a decision by the Commissioner.

Under a cover letter of October 7, 1994, DEC Staff released a draft permit (attached as Appendix "A") which has been revised in accordance with the ALJ's rulings. The Applicant is willing to accept this permit, and has no objections to its terms.

Adjudicatory Hearing

The adjudicatory hearing in this matter was held on July 11, 12, 13, 14, 15, 26, 27, 28 and 29, and August 18 and 19, 1994, at the Sardinia town offices.

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

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

The Town of Sardinia was represented by David J. Seeger, Esq., of Buffalo.

Before the hearing the ALJ ordered the parties to pre-file their direct cases. This was done pursuant to 6 NYCRR 624.7(b)(6)(ii) to eliminate surprise, ensure a clear record, and expedite the hearing. The Applicant and DEC Staff were ordered to file before the Town since the Applicant had the burden of proof and Staff's position was consistent with the Applicant's.

Concerning groundwater impacts, pre-filed testimony was received as follows:

  • For the Applicant, from Robert LaFleur, president of Spectra Environmental Group in Latham, New York, which is managing the project application; Dr. Samuel Gowan, a hydrogeologist with Alpha Geoscience in Albany, New York; and Roy Slack, a self-employed environmental scientist in Phoenix, New York.
  • For the Town, from Stephen Smith, a hydrogeologist with GeoHydroCycle in Newton, Massachusetts.

Also testifying as rebuttal witnesses for the Applicant were Henry He, a senior project geologist with Blasland, Bouck and Lee in Syracuse, New York; and Charles Fitts, an assistant professor in the Department of Geosciences at the University of Southern Maine in Gorham, Maine.

James Pomeroy, a senior aquatic biologist with DEC's Division of Fish and Wildlife in Olean, New York, also testified about a fisheries survey of Hosmer Brook, information from which was offered as part of the Town's direct case.

Concerning the proposed residual embankment, pre-filed testimony was received as follows:

  • For the Applicant, from Dr. Gregory Gifford, a geotechnical engineer and president of Gifford Engineering in Schenectady, New York.
  • For the Town, from Dr. Jeffrey Evans, a geotechnical engineer and professor of civil engineering at Bucknell University in Pennsylvania.
  • For the DEC Staff, from Michael Stankiewicz, a senior engineer in the dam safety program of DEC's Bureau of Flood Protection in Albany, New York.

SUMMARY POSITIONS OF THE PARTIES

HYDROGEOLOGY

Position of the Applicant and Department Staff

The Applicant contends that its mining operation will not cause drawdown to nearby surface waters, including the AR-13 wetland, Paradise Lake, Hosmer Brook, and nearby springs. DEC Staff concurs with the Applicant.

Position of the Town

The Town contends that mining below the water table will have a pumping effect on the Sardinia aquifer, drawing down the water table as aggregate is removed. The Town submits that its computer modeling confirms the likelihood of adverse impacts to nearby surface water resources.

RESIDUAL EMBANKMENT

Position of the Applicant and DEC Staff

The Applicant's mining proposal would result in a residual embankment along the south and west boundaries of the mine. This embankment would function as a dam or impoundment separating the newly-created 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 and DEC Staff contend that the residual embankment is adequately designed to ensure slope stability. They say that the development of a piping condition caused by internal erosion of the embankment is extremely unlikely. They submit that sloughing along the excavation slopes is also unlikely and, if it occurs at all, will have minor consequences.

According to the Applicant and DEC Staff, special draft permit conditions are adequate to ensure the stability and integrity of the residual embankment.

Position of the Town

The Town contends that the Applicant's slope stability analyses are deficient and therefore that the stability and integrity of the residual embankment have not been adequately demonstrated.

FINDINGS OF FACT

Project Overview

  1. Gernatt Asphalt Products, Inc. ("the Applicant") proposes to mine sand and gravel on a 400-acre parcel in the Town of Sardinia, Erie County. The parcel (known as the Gabel/Thomas site) is generally bordered on the north by Allen Road, on the east by New York State Route 16, and on the south by Genesee Road. On the west it is bordered by other parcels and then by Savage Road. (A site location map is attached to this report as Appendix "B".)
  2. Generally west of the site and between it and Savage Road are a DEC-regulated wetland, AR-13 (a finger of which extends onto the site), Paradise Lake, which covers 35 acres, Hosmer Brook, and several springs from which groundwater is discharged. (See Appendix "B" for general locations of these features.)
  3. The site consists of open fields sloping gently downward to the west and south, and more steeply downward in the vicinity of AR-13.
  4. Mining activities are proposed to continue for up to 100 years and will affect about 350 acres of the project site. Sand and gravel will be removed from about 275 acres and the remaining affected area (about 75 acres) will include the processing plant, settling pond system and screening berms. Excavation below the water table will result in the creation of a 200-acre lake, whose approximate location is depicted on Appendix "B".
  5. Mining will leave a residual embankment along the south and west perimeters of the newly-created lake. This embankment will function as a dam or impoundment separating the lake from wetland AR-13 (which will not be disturbed by mining) and the area of the processing plant, in the site's southwest corner. (The embankment is represented on Appendix "B" by a broken line within the mining site boundary.)
  6. Mining below the water table will occur by means of an electric suction dredge that will remove a combination of aggregate and water. This combination will then be carried to the processing plant, where the aggregate will be crushed, washed, sized and stockpiled. The water removed with the aggregate will be used in the washing process and then be recirculated to the water table through a series of on-site settling ponds.

Groundwater Impacts

  1. Mining below the water table will penetrate the Sardinia aquifer. This aquifer occupies 9 square miles within a broad, flat, southward-draining valley bounded on the east and west by bedrock hills that rise about 250 feet above the valley floor.
  2. The aquifer is bounded on the north by small till hills and on the south by Cattaraugus Creek. The project site lies roughly in the middle of this nine-square-mile area, and is drained by Hosmer Brook, whose headwaters are northwest of the project site.
  3. Groundwater maintains the base flow of Hosmer Brook and other surface water resources such as wetland AR-13, Paradise Lake, and the springs adjacent to the project site. The groundwater discharging to the surface water bodies within the aquifer originates as recharge to the aquifer from direct precipitation, runoff from the adjoining uplands, and discharge from the surrounding bedrock and till aquifer systems.
  4. Existing groundwater discharge to the AR-13 wetland, Paradise Lake, Hosmer Brook and the springs nearby the project site will not be curbed by project operations, including excavation of the 200-acre lake. Aquifer recharge in the excavated area will still occur by direct precipitation to the lake, and groundwater flow beneath the site will not be stemmed by the lake's creation.
  5. Creation of the lake will tend to moderate peak flows in Hosmer Brook by capturing runoff that would otherwise go there. Some of this captured runoff will be released slowly to the surface water bodies as groundwater discharge, helping to sustain base flow during dry periods.
  6. Groundwater flows across the site in a northeast to southwest direction, generally from the area of the Village of Chaffee and Route 16 towards wetland AR-13, the springs, Hosmer Brook and Paradise Lake. Water enters and recharges the groundwater system in the northeast and leaves or discharges from the groundwater system in the southwest. It flows along a hydraulic gradient of about 10 feet per 1,000 linear feet; in other words, for every 1,000 feet of horizontal distance the elevation of the water table surface drops 10 feet.
  7. The Gabel/Thomas site receives about 40 inches of precipitation annually, of which 10.5 inches is now captured as direct infiltration and the remainder is lost to surface runoff and evapotranspiration.
  8. With mining occurring below the water table, the 29.5 inches lost to runoff and evapotranspiration will be captured in the lake, which will have an evaporation rate of about 27 inches per year. As a result, creation of the lake results in a net increase of 2.5 inches per year of available water to recharge the aquifer. Over the 200 acres of the lake this amounts to 37,000 additional gallons of recharge per day.
  9. Creation of the lake will not affect the northeast-to-southwest direction of groundwater flow across the site. The only difference will be that groundwater will move through the lake rather than through the sand and gravel deposits. In other words, water will enter the site as groundwater, become surface water as it moves through the site, and become groundwater again before it leaves the site.
  10. The final elevation of the 200-acre lake will be about 1433 feet. Wetland AR-13 has an elevation of about 1423 feet, and Paradise Lake has an elevation of about 1421 feet. The springs adjacent to the site discharge at elevations of 1412.4 and 1415.3 feet. Hosmer Brook has an elevation ranging from 1420 feet at Allen Road to the north of the site to 1400 feet at Genesee Road to the south of the site.
  11. Once the project moves forward, groundwater will flow from the 200-acre on-site lake to wetland AR-13, the adjacent springs, Paradise Lake and Hosmer Brook, all of which will have elevations lower than the lake. Additional water retained by the lake will minimally increase discharge to the neighboring surface water resources, with the volume of water growing as the lake becomes larger.
  12. Assuming expansion of the lake surface area at a rate of 2 to 3 acres per year, as projected by the Applicant, additional recharge to adjoining surface water resources will increase by less than one gallon per minute each year, an insignificant amount. When the lake reaches 200 acres in size, the total additional recharge to the springs, AR-13 wetland, Hosmer Brook and Paradise Lake will amount to about 25.83 gallons per minute. This added recharge will be dispersed so that no one of these surface water bodies will get it all.
- - Impact to AR-13 Wetland
  1. Creation of the on-site lake will result in a negligible increase in water available to AR-13.
  2. AR-13 is a highly channelized wetland, with many rivulets through which much of its water flows. These rivulets vary from two inches wide and two inches deep to three to four feet wide and six inches deep. The wetland's vegetation grows primarily in the highly saturated soils which surround these rivulets.
  3. The rivulets in AR-13 are sufficiently numerous and large to handle more than 200 gallons per minute of additional water without raising the wetland's static water level. Even if the entire increased recharge of 25.83 gallons per minute were to be captured by AR-13, the increased flow in the wetland would be insignificant, well within expected seasonal and annual fluctuations. This additional flow would simply move through the existing channels, and would not affect the surrounding vegetation.
  4. In the unlikely event of a rise in the static water level, AR-13 would still function as a wetland. The only changes would be in soil saturation patterns and plant species distribution. Species more tolerant of greater levels of soil saturation might increase in abundance, while less tolerant species might decrease. One would virtually have to flood AR-13 and convert it to a lake in order to eliminate its function as a wetland.
- - Impact to Hosmer Brook
  1. Creation of the on-site lake will result in a slight increase in groundwater discharging into Hosmer Brook. Hosmer Brook flows at a rate of 12,000 gallons per minute, and additional discharge to the brook of 25.83 gallons per minute would represent an increase of less than 0.3 percent of total volume, an insignificant amount.
- - Impact to Neighboring Springs
  1. Creation of the on-site lake will result in a negligible increase in groundwater discharge through springs which are located on the southern half of the project site's western edge. These springs are downgradient from the proposed lake, and flow to them will occur in the same manner as now.
- - Impact to Paradise Lake
  1. Creation of the on-site lake will result in an immeasurable increase in groundwater discharge to Paradise Lake, given the size of Paradise Lake (about 35 acres) and the large watershed in which it is located.
  2. Paradise Lake has a pipe overflow structure at its southern end which regulates the lake level, so that any additional water introduced by precipitation or groundwater discharge cannot change the lake level.
- - Adjustment of Water Table
  1. Creation of the on-site lake will flatten the water table at the lake surface, lower it slightly upgradient of the lake, and raise it slightly downgradient of the lake.
  2. As aggregate is removed from below the water table, the water table will be slightly lowered in the immediate vicinity of the lake. This lowering (or drawdown) will be temporary since mining will stop at night and on weekends. The extent of the drawdown will depend on how much aggregate is removed and how quickly the removal occurs.
  3. The Applicant will be able to mine at a rate of 750 tons per hour, although the actual rate is likely to be half that amount.
  4. Even if mining occurs at a rate of 750 tons per hour, any water table drawdown will be limited to the site itself. This is because there is ample water moving through the Sardinia aquifer to fully replenish the volume removed with the aggregate. Also, the water removed will be recirculated through the on-site settling ponds, and the creation of the lake will increase aquifer recharge as a direct result of precipitation.
  5. Drawdowns affecting neighboring surface water resources are not anticipated as a result of mining below the water table. Furthermore, this mining will proceed over a long period of time at a rate anticipated to be between two to three acres per year. Any changes to the water table outside of normal seasonal fluctuations will occur very slowly.
- - Effect of Permit Conditions
  1. Any unexpected drawdown of the water table as a result of mining will be detected as it occurs pursuant to special conditions No. 22 and 23 of Staff's draft permit (attached as Appendix "A").
  2. According to the permit, the elevation of the water table shall be measured at six on-site monitoring wells at three-month intervals. An annual report shall be submitted to the Department which displays groundwater elevations at each well for the previous year. The permittee shall measure the water table elevation at any or all of its wells at any time upon Department request, and provide the Department with collected groundwater data for each well within five days of its request.

Residual Embankment

  1. Creation of the on-site lake and excavation in the area of the proposed processing plant will leave a residual embankment that will function as a dam separating the lake from the lower-elevation surface water bodies to the west.
  2. The residual embankment will be about 5,000 feet in length. Beginning at its northern end adjacent to wetland AR-13, it will extend about 1,500 feet to the south and then turn to the east, where it will separate the proposed lake from the aggregate processing and manufacturing area. From there it will again turn south, bordering the eastern edge of the aggregate processing and manufacturing area to the southern edge of the site.
  3. Because the aggregate processing and manufacturing area will be excavated, the downgradient slope of the embankment will be shaped in that vicinity, whereas the downgradient slope adjacent to AR-13 will be left at the natural grade which exists today.
  4. The design slope for the downgradient part of the embankment adjacent to the aggregate processing and manufacturing area will be no greater than 5 horizontal to 1 vertical. The slope for the downgradient part of the embankment adjacent to AR-13 will be no greater than 6 horizontal to 1 vertical and usually much flatter (30 horizontal to 1 vertical).
  5. All along the embankment there will be a minimum 25-foot-wide crest at an elevation of 1439 feet or higher.
  6. As confirmed by special draft permit condition No. 25, the upgradient slope of the embankment (facing toward the lake) will extend from the edge of the crest downward at a 3 horizontal to 1 vertical slope to the final lake elevation (estimated at 1433 feet). From the shore there will be a shallow area extending out into the lake for 20 feet and sloped at 10 horizontal to 1 vertical. Beyond this shallow area the slope to the lake bottom will become steeper, approaching the natural angle of repose of the material encountered. The slope is designed to be 1.5 horizontal to one vertical to the lake bottom. The lake will be about 80 to 100 feet deep.
  7. The Applicant's design of its on-site residual embankment meets minimum standards established by DEC guidelines for the design of earth dams. These guidelines require a crest no less than 10 feet in width and up- and down-gradient slopes no greater than 3 horizontal to 1 vertical.
- - Embankment Stability
  1. The stability of an earth embankment is critical to the impoundment of water behind the embankment, and is evaluated by analyzing potential failure modes along the embankment slopes. Stability analysis results in a calculated safety factor, which is a summation of all the forces resisting motion along the potential failure surface (including the shear strength of the soils along that surface) divided by the summation of all the forces tending to cause failure (including gravity, seepage forces, or earthquake-induced forces).
  2. Two failure mechanisms - - deep and shallow failure - - are important when considering the design of slopes. Shallow failure typically mobilizes a few feet of material in depth, but does not affect material above the site of the failure and therefore does not affect the overall stability of the embankment. In fact, the flattening of the slope after shallow failure serves to stabilize the slope and results in a higher calculated safety factor.
  3. On the other hand, deep slope failure encompasses a much larger soil mass which slides or rotates toward a flatter slope. The failure begins at the toe of the slope or even beneath it, and the entire slope mass is mobilized, with the failure surface intersecting the ground surface above the top of the slope in the crest area or beyond.
  4. According to the U.S. Army Corps of Engineers, an earthen dam should have a minimum slope safety factor of 1.3 at the end of construction, and a minimum safety factor of 1 during earthquake conditions. To analyze stability of this proposed embankment, the Applicant performed a computer analysis of shallow and deep potential failures at the steepest sections of the slope facing towards and extending into the lake.
  5. The first case represented a deep failure allowing the 25-foot-wide embankment crest to fall into the lake. The minimum safety factor for this case is 1.5; even were it to happen, the lake elevation would still be maintained by the downgradient slope above 1433 feet.
  6. The second case represented a catastrophic failure allowing all material above 1433 feet to fall into the lake and therefore affording some lake drainage over the top of the remaining material. The minimum safety factor for this case is 2.0.
  7. On the downgradient slope (facing away from the lake) the steepest area is in the vicinity of Test Pit No. 5. There the minimum safety factor is 3.0 for the shallow case and 3.3 for the deep case.
  8. A shallow failure on the downgradient slope would move a limited amount of earth and not disturb the crest material. It would require some regrading and perhaps drainage considerations. A deep failure is extremely improbable given the very flat downgradient slopes.
- - Embankment Integrity
  1. Internal erosion of the embankment by water seepage is unlikely. This type of erosion - - known as "piping" - - should not occur because the materials comprising most of the embankment are coarse-grained sand and gravel particles which are not prone to erosion. Also, the calculated hydraulic gradient of water seeping from the lake through the dam is too small to provide enough energy to displace soil particles.
  2. The general direction of groundwater flow - - from northeast to southwest across the site - - will generate seepage pressures from the lake into the underwater slopes of the residual embankment, increasing slope stability and making any sloughing unlikely.
- - Effect of Permit Conditions
  1. To best ensure the integrity and stability of the residual embankment, Staff has incorporated several special conditions in its draft permit (attached as Appendix "A"). One (special condition No. 20) requires the establishment and maintenance of a permanent grass cover. The Department reserves the right to require any necessary repairs to maintain the integrity of the embankment at any time.
  2. Another special draft permit condition (No. 19) requires that mining and reclamation in the embankment 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 such measures would be required prior to the acceptance of the western mine boundary reclamation (special draft permit condition No. 28).

DISCUSSION

Two issues were adjudicated as part of this hearing: (1) mining impacts upon surface water resources adjacent to the project site; and (2) the structural stability and integrity of the proposed residual embankment. This section explains the ALJ's findings and addresses the Town's contentions, which are not confirmed by the findings.

- - Hydrogeology

The first issue concerns the impacts from mining below the water table on the AR-13 wetland, Paradise Lake, various springs, and Hosmer Brook. The Applicant basically proved that these surface water resources, which are generally west of the project site, will not be adversely affected by the mining operations. Rather than lose groundwater recharge, as feared by the Town, they will likely gain a slight amount as the on-site lake is created. Also, any water table drawdown associated with the aggregate removal will be confined to the site.

The Applicant's evidence - - which has been credited in the findings of fact - - was primarily presented by Samuel Gowan, a hydrogeologist with Alpha Geoscience in Albany, New York. Dr. Gowan has a PhD. in geology and has worked in the geology and hydrology fields since 1976. As was detailed in his pre-filed direct testimony, Dr. Gowan has extensive experience in directing hydrogeologic investigations such as the two-year study conducted for this project.

Dr. Gowan's work at other sand and gravel sites in which mining was to occur below the water table has included examination of issues similar to those confronted here, including drawdown impacts to wells, water balance impacts from creation of a lake, and impacts to surface water resources such as springs, lakes, wetlands, and rivers. Dr. Gowan also has considered these issues in relation to several bedrock quarries and in non-mining contexts such as landfilling, disposal of low-level radioactive wastes, and resort and residential developments.

Dr. Gowan developed and supervised the hydrogeologic investigation of the project site. That investigation included defining the on-site water table, determining flow direction and gradient, identifying recharge and discharge areas, determining final lake elevation, and assessing mining impacts upon recharge and discharge patterns. Dr. Gowan's water budget, including his estimate of on-site precipitation, was demonstrated to be both conservative and reliable. His different calculations of final lake elevation - - 1428 feet in the draft 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. Also, even at 1428 feet, the lake would still be upgradient of the neighboring surface water resources, and flow would still be toward them.

While Dr. Gowan's testimony was in all respects credible, unshaken despite often vigorous cross-examination, the same cannot be said of the testimony of Stephen W. Smith, the Town's proffered expert. In preparation for the hearing, Mr. Smith used the TWODAN computer program to model what he said would be a water table drawdown. Smith said there would be significant drawdowns during mining attributable to what he called the "pumping" of the aquifer. After 30 years of mining, he said, drawdowns would run up to four feet along Hosmer Brook and six feet at the AR-13 wetland, which would curb the base flow supporting these groundwater-dependent resources.

Smith's conclusions wholly depended on the accuracy of modeling he performed using the TWODAN program. The developer of this program, Dr. Charles Fitts, testified as a rebuttal witness for the Applicant, describing how Smith had misapplied the program, which rendered his results unreliable.

Dr. Fitts's testimony as to the proper use of TWODAN was certainly authoritative since he, not Mr. Smith, designed the program. While he first declined to testify for the Applicant, Dr. Fitts said he changed his mind only after learning how Smith had used his software. In his own words, Fitts wanted to "straighten out apparent confusion" about the program's use. He said he felt a "vested interest" in promoting TWODAN and therefore wanted it understood properly.

Dr. Fitts's testimony was corroborated by another witness, Henry He, who had been called by the Applicant before Dr. Fitts agreed to testify. Mr. He, a geologist, has eight years of experience in groundwater modeling, has applied TWODAN himself, and even programmed its elements as part of his thesis at the University of Minnesota, where he first met Dr. Fitts.

Prior to taking the stand Dr. Fitts reviewed Smith's testimony, which explained how he used TWODAN. Under cross-examination by Mr. Gilberti, Smith had demonstrated on a lap top computer how he operated the program.

Referencing computer runs attached to his pre-filed testimony, Smith said he modeled aquifer conditions using a combination of linesinks and heterogeneities. Linesinks were used to model water elevations at the boundary of the Sardinia aquifer and along streams within the aquifer, including Hosmer Brook. A heterogeneity was used to model the proposed on-site lake, and a transient well was installed inside the lake to simulate the "pumping" effect that Smith said would follow from the removal of aggregate below the water table.

According to Dr. Fitts, the use of a transient well, which assumes changing conditions, in conjunction with linesinks and heterogeneities, which assume a steady state, was inappropriate and caused substantial errors in Smith's results for computer runs which incorporated the transient well. These runs were meant to document drawdowns occurring over 10, 20 and 30 years of mining.

Dr. Fitts said that when transient and steady state elements are combined, boundary conditions at the steady state elements - - which don't change over time - - are met before the transient well starts pumping and for a short amount of time after pumping begins. But if pumping runs long enough, he added, boundary conditions at the steady state elements will eventually be disrupted (meaning that the user-specified boundary conditions will not be met).

According to Dr. Fitts, the so-called "check runs" that accompanied Smith's results verified his errors, and were misinterpreted by Smith.

Smith's use of the TWODAN program ignored warnings and contradicted instructions provided in the TWODAN user's manual. Smith explained that when he ran the program with the transient well included in the input data, the "solve" function aborted. Therefore, he modified the input data by deleting the transient well, performed "solve" without the well, and then put the well back in by modifying the input submenu, after which he plotted his results.

The TWODAN user's manual states that whenever the model has been changed within the "input" submenu, "solve" must be executed before proceeding to "plot". By reinserting the transient well, and then going to "plot" while bypassing "solve", Mr. Smith ignored the manual's instruction, and produced an unreliable result.

As noted by Dr. Fitts, the TWODAN manual contains several warnings about the use of transient wells with steady state elements. For example, the manual states that "after transient wells start pumping, the effects of the transient solutions will spread farther and farther as time progresses. The effects may eventually cause boundary conditions at other model features to be disrupted." To check if this has occurred to a substantial extent, the user is counseled to write a "text" output file which includes a check run of specified boundary conditions.

The check runs for modeled conditions after 10, 20 and 30 years of mining - - on which Smith's drawdown estimates are premised - - indicate significant discrepancies at the linesinks between user-specified and model-calculated heads. Smith attributed these discrepancies to drawdowns stemming from the pumping of the aquifer. Actually, they resulted from the disruption of boundary conditions as warned about in the user's manual and in "help" files which are part of the program's "text" menu and "input" submenu.

Boundary conditions were disrupted not only along the linesinks, but also along the boundary of the heterogeneity, which was used to simulate the on-site lake. Dr. Fitts said that if the model was properly used, head would be the same on both sides of the heterogeneity boundary. Yet the checks on the 10, 20 and 30-year runs showed a model-calculated head difference of between 5 and 10 feet. According to Dr. Fitts, this suggested a physical impossibility - - that at the lake boundary mining would leave a cliff in the water table.

Mr. Smith clearly erred in his use of TWODAN, but even worse, he testified to the accuracy of his results even after Dr. Fitts told him the results were erroneous and should be abandoned. After he was first cross-examined, Mr. Smith called Dr. Fitts on July 21, 1994. During that telephone conversation, Dr. Fitts said, he told Mr. Smith that the check runs for the 10, 20 and 30-year scenarios had boundary condition problems, and that he should abandon his results. Mr. Smith ignored these warnings and again defended his work on surrebuttal eight days later.

On surrebuttal Smith said that Dr. Fitts had recommended that he not run the transient well through the "solve" routine. However, Dr. Fitts testified convincingly that he gave no such recommendation, and it is clear that such a recommendation would flatly contradict the user's manual.

Smith's analysis was fraught with problems even beyond his use of the TWODAN program. For instance, he admitted double-counting evapotranspiration from wetland areas in applying his water budget to the computer model. Also, his computer runs for the Applicant's water budget - - which he said showed drawdowns similar to those using his own budget - - misrepresented the Applicant's water budget data.

Smith took the Applicant's direct infiltration figure of 10.5 inches per year under existing conditions and, as an input parameter, raised it to 20 inches, saying the Applicant's water budget failed to account for 9.5 inches of till upland runoff and till bedrock recharge. But he failed to raise the Applicant's direct infiltration figure under post-mining conditions - - 13 inches per year - - by the same amount. As a result, Smith's interpretation of the Applicant's water budget suggests a net loss of direct infiltration after mining begins, when in fact the Applicant's consultants conclude there will be a net increase.

Smith initially defended his adjustment of the Applicant's water budget, but finally conceded that adding 9.5 inches only to the existing condition was an "oversight". He said the mistake was insignificant in terms of affecting predicted drawdowns, but as no runs were made using the Applicant's true water budget, this cannot be verified.

The Applicant did no computerized groundwater modeling of its own, and none is required by law or regulation. The Applicant's conclusions were based entirely on the professional expertise of Dr. Gowan, as corroborated by the mining experience of Mr. LaFleur, the project manager. Mr. LaFleur drew comparisons between activities proposed at the Gabel/Thomas site and those that have already occurred at Gernatt's Countryside facility in nearby South Dayton, New York.

Sand and gravel mining below the water table at the Countryside site has been continuing for the last several decades. Several large lakes have been created, one of which is much closer to a downgradient stream and wetland than the lake proposed here would be to Hosmer Brook and AR-13.

The compatibility of the Countryside lake with adjacent surface water features, while not conclusive by itself, tends to support Dr. Gowan's conclusion that mining will not have long-term impacts upon neighboring surface water bodies.

- - Residual Embankment

The second hearing issue concerns the structural stability and integrity of the proposed residual embankment which would impound the on-site lake. The Applicant's chief witness on this issue was Dr. Gregory Gifford. Dr. Gifford has a PhD. in civil engineering and has worked as a geotechnical engineer since 1976. He prepared the "slope stability investigation" which is part of the supplemental draft EIS.

Gifford's analysis involved a review of surface and subsurface geology. It included excavating nine test pits along the axis of the residual embankment. Five of the test pits were located along the proposed lake boundary adjacent to wetland AR-13, and the remaining four test pits were located along the boundary adjacent to the plant area. As directed by DEC, all test pits were excavated to a minimum depth of 10 feet, and logs were created to show the depth to and thickness of the substrata which were encountered. Shear testing was done on selected soil samples to determine their natural angle of repose.

At the issues conference Dr. Gifford's analysis was challenged by Jeffrey Evans, a professor and consulting engineer from Pennsylvania. As noted in the ALJ's issues ruling, Evans's analysis raised an issue about the potential for both "sloughing" on excavation slopes and "piping" within the embankment itself.

- - Sloughing

Sloughing occurs as soil slides down the submerged slope of the embankment. The potential for sloughing cannot be ruled out, although it is unlikely to occur, according to Dr. Gifford and Michael Stankiewicz, a DEC dam engineer. As noted by Dr. Gifford, the subsurface soils consist of sands and gravels, which tend to resist sloughing, interspersed with weaker clay materials, which are less resistant. According to Dr. Gifford, these soil conditions are "nothing out of the ordinary" at gravel mines and it is common for minor sloughs to be initiated in areas of weaker, less dense materials.

Dr. Gifford's analysis was buttressed by Mr. Stankiewicz, who testified that mining cannot proceed at a rate that will produce any significant gradient, and therefore will not result in any significant seepage into the lake. Mr. Stankiewicz said that any seepage into the lake from the embankment would be running counter to the predominant groundwater flow, which would be into the embankment from the lake, and which would tend to stabilize the embankment.

The town's witness, Mr. Evans, failed to show how minor sloughs would impair the function of the dam as a water impoundment or otherwise create adverse environmental impacts. He also failed to address the permit conditions, which require both monitoring of the embankment for sloughing and piping, and completion of any needed remedial measures as a condition of DEC's acceptance of reclamation.

- - Piping

Piping occurs as water flows through soil, thereby eroding it, creating a void which often looks like the inside of a pipe. As noted by Dr. Gifford, the gravel and sand materials comprising the majority of the embankment are not prone to piping.

According to Mr. Stankiewicz, piping occurs when an exit gradient of seepage is great enough to provide the energy needed to displace soil particles. As part of the supplemental draft EIS, Dr. Gifford constructed a flow net to analyze seepage potential.

This flow net - - a graphic depiction of the embankment between the on-site lake and wetland AR-13 - - resulted in a calculated exit gradient of 0.14 at the part of the dam deemed most critical with regard to seepage. Dr. Gifford said this gradient was well below the 0.35 to 0.4 magnitude generally accepted as causing concern for internal erosion or piping.

In a report that is part of the supplemental draft EIS, Dr. Gifford conceded that piping could result from "unforeseen field conditions such as a thin permeable layer confined by sandy clayey silt within the zone of seepage." For this reason he recommended that final work be performed under the direct supervision of and monitored by a qualified geotechnical engineer, who would pay particular attention to any seeps which might develop on the downstream face of the embankment. This recommendation has been incorporated as part of the draft permit (see special condition No. 19, referenced in the findings of fact).

CONCLUSIONS

  1. Mining as proposed at the Gabel/Thomas site will not have significant adverse impacts on the AR-13 wetland, Paradise Lake, Hosmer Brook, or nearby springs.
  2. Conditions potentially undermining the stability and integrity of the proposed residual embankment are unlikely to occur. 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 the draft permit attached to this report as Appendix "A".

FINAL ENVIRONMENTAL IMPACT STATEMENT

The Final Environmental Impact Statement ("FEIS") for this Project shall consist of the following:

  • This hearing report;
  • The permit application;
  • The draft EIS and the supplemental draft EIS;
  • The record of the legislative hearing, including all oral and written comments from the public;
  • The record of the issues conference;
  • The record of the adjudicatory hearing, including those exhibits received in evidence;
  • The issues rulings of the ALJ and the Commissioner's interim decision of April 29, 1994; and
  • The correspondence between the ALJ and the parties to this proceeding.

The FEIS shall also include:

  • The Applicant's responsiveness summary, dated December 9, 1994; and
  • The Town's comments on the responsiveness summary, as contained in a letter from Mr. Seeger dated December 20, 1994.

These last two submittals were provided at the direction of the ALJ and in accordance with 6 NYCRR 624.7(a)(3), which states that "if the Applicant has prepared the draft EIS, it shall prepare a written response to comments received and shall file it as an exhibit to the hearing record. Other parties shall be afforded opportunity to contest the contents prior to the close of the hearing record."

The Applicant's responsiveness summary has been accepted by DEC Staff as its own. This hearing report draws no conclusions about the responsiveness summary because the adequacy of the summary is judged by DEC Staff.

The conclusions in this hearing report relate to issues that were actually litigated. The responsiveness summary addresses comments on matters as to which no issue was certified for adjudication.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

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