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Jointa Galusha, LLC - Ruling 2 - October 1, 2001

Ruling 2 - October 1, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of

JOINTA-GALUSHA, LLC.

for a Mined Land Reclamation Permit pursuant to Article 23 of
the Environmental Conservation Law (ECL), a Freshwater Wetland Permit pursuant to Article 24 of
the ECL, a State Pollutant Discharge Elimination System Permit pursuant to Article 17 of the ECL,
and an Air Pollution Control Permit pursuant to Article 19 of the ECL for
a proposed mine in the Town of Hartford, Washington County

RULING ON ISSUES AND
PARTY STATUS

October 1, 2001

Note: The first version of this Ruling was released prematurely and contained a number of typographical errors, which have been corrected in this version. There are no changes to any of the substantive rulings.

Table of Contents

INTRODUCTION

Project Description

Public Notice

Legislative Hearings

Petitions for Party Status

Issues Conference

RULINGS ON ISSUES

INTERVENER'S PROPOSED ISSUE #1 ­ Wetlands

Lack of a Water Budget for the Wetland
Adverse Impacts from the Loss of Groundwater Supply
Adverse Impacts from Invasive Species
Adverse Impacts from Pumping

INTERVENER'S PROPOSED ISSUE #2 ­ Wetlands

Adjournment of the Hearing for Remapping
DEC Jurisdiction over Unmapped Wetlands
DEC Wetland Permit to Construct Access Road
Standards for Permit Issuance
Need for the Mine
Compensatory Wetlands
Alternative Road Location

INTERVENER'S PROPOSED ISSUE #3 ­ Noise

The Increased Noise Level
Noise Impacts on Domestic Livestock
Noise Impacts on Neighboring Residences
Hours of Operation
The Adequacy of the Applicant's Noise Study
Failure to Mitigate Noise Impacts

INTERVENER'S PROPOSED ISSUE #4 ­ Archeology

The Applicant's Proposed Mitigation Plan
The Uniqueness of the Prehistoric Quarry
The Applicant's Consideration of Alternatives
Alternatives Analysis Required by SHPA
Need for Additional Site Work
Public Input into the DRP

INTERVENER'S PROPOSED ISSUE #5 ­ Visual impacts

Adverse Visual Impacts on Aesthetic Resources
Adverse Visual Impacts from Lighting during Night Operations
The Visual Impact of Removing the Hill

INTERVENER'S PROPOSED ISSUE #6 ­ Groundwater

Neighboring Wells
Springs and Wetlands

INTERVENER'S PROPOSED ISSUE #7 ­ Endangered Species

Timber Rattlesnakes
Bog Turtles
Cave Flora and Fauna
Other Wildlife Issues

INTERVENER'S PROPOSED ISSUE #8 ­ Community Character

Dust Impacts
Economic Impacts on Community Character
Traffic Related Impacts
Other Community Impacts on Community Character
Impact on Canal Recreationway

INTERVENER'S PROPOSED ISSUE #9

INTERVENER'S PROPOSED ISSUE #10

INTERVENER'S PROPOSED ISSUE #11

MR. KOKUREWICZ' PETITION: ISSUE #12

RULINGS ON PARTY STATUS

APPEALS

Introduction

This issues ruling addresses issues proposed for adjudication by Hartford Opposes Mineral Extraction ("HOME" or "Interveners") and a petition for amicus status by Mr. Jerzy Kokurewicz involving the application by Jointa-Galusha, LLC. ("Jointa" or "Applicant") for the permits necessary to construct and operate a mine to be located in the Town of Hartford, Washington County.

Project Description

The Applicant proposes to expand an existing mining operation ("project") on a 1,300 acre parcel of land it owns that is located approximately 3/4 of a mile north of NYS Route 149, 3/4 of a mile south of Baldwin Corners Toad and 3/4 of a mile east of the Champlain Canal in the Town of Hartford, Washington County. The proposed mine would occupy approximately 190 acres in the center of the 1,300 acre parcel ("mine site" or "site").

The mine will remove consolidated rock and include an aggregate processing operation that will provide aggregate materials for the construction and manufacturing industries. Mining will be accomplished in a series of benches requiring the rock face to be drilled and blasted in lifts averaging approximately 50 feet in height. The mine is expected to have a life of between 50 and 100 years, depending upon market conditions. After the mining operation has concluded, the site will be reclaimed with an approximately 173-acre lake surrounded by vegetated uplands.

The Applicant applied for a mined land reclamation permit pursuant to Environmental Conservation Law ("ECL") Article 23, Title 27, and Parts 420 through 425 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). In addition, the Applicant has also applied for a Freshwater Wetland Permit pursuant to Article 24 of the ECL (and 6 NYCRR Part 663), a State Pollutant Discharge Elimination System Permit ("SPDES")pursuant to Article 17 of the ECL (and 6 NYCRR Parts 750-758), and an Air Pollution Control Permit pursuant to Article 19 of the ECL (and 6 NYCRR Part 201, et seq.).

The Department of Environmental Conservation ("DEC") is the lead agency for the review of the project under the State Environmental Quality Review Act ("SEQRA") (ECL Article 8, 6 NYCRR Part 617). On April 6, 2000, DEC determined that the project may have a significant environmental impact and required the preparation of an Environmental Impact Statement ("EIS").

Public Notice

A Notice of Complete Application and Notice of Completion of a Draft Environmental Impact Statement ("DEIS") and Notice of Public Hearing was published on November 29, 2000 in DEC's Environmental Notice Bulletin and in the Glens Falls Post Star on December 2, 2000. At the legislative hearing on January 17, 2001, it was announced that the Applicant and DEC Staff had agreed to extend the public comment period for an additional 30 days. A revised notice was then published in DEC's Environmental Notice Bulletin on January 24, 2001 and in the Glens Falls Post Star on January 25, 2001. A supplemental notice was also published in the Glens Falls Post Star on February 12, 2001 announcing the extension of the public notice period and the fact that DEC Staff had determined that the proposal to create additional wetlands on the site to mitigate the loss of wetlands under the jurisdiction of the United States Army Corps of Engineers ("ACOE") would require a permit from DEC Staff pursuant to ECL Article 24.

A Supplemental Notice of Complete Application and Notice of Public Hearing and Notice of Extension of Comment Period on Draft Environmental Impact Statement was published on June 7, 2001 in the Environmental Notice Bulletin. This notice was also published in the Glens Falls Post Star on June 13, 2001. This notice was necessary to supplement and correct defects in the original and subsequent public notices.

Legislative Hearings

The DEC administrative hearing process on the Project began on January 17, 2001 with a legislative hearing to receive unsworn comments about the application and the DEIS. The legislative hearing was held at the Hartford Central School on Route 40 in the Town of Hartford, New York. Approximately one hundred (100) people attended, twenty-seven (27) individuals spoke at the hearing including two representatives of the Applicant, one representative of DEC Staff, and two representatives of HOME. Of the remaining twenty-two speakers, five spoke in favor of the project and seventeen either spoke in opposition to it or voiced concerns regarding the impacts of the project.

A second legislative hearing was held on Monday, July 16, 2001 at 7:00 p.m. at the Hartford Town Hall. Approximately forty (40) people attended, including representatives of the Applicant, DEC Staff and the Interveners. Following remarks by DEC Staff and the Applicant, seventeen members of the public spoke, including an expert witness hired by the Interveners. All members of the public spoke against the proposed mine and approximately half of those who spoke, had also spoken at the January legislative hearing.

Petitions for Party Status

The initial deadline for filing for party status was March 16, 2001. One petition for full party status was timely received from HOME proposing eleven issues for adjudication.

In addition, a letter was timely received from Mr. Jerzy Kokurewicz requesting amicus status in this matter.

The deadline for filing additional petitions for party status closed on July 27, 2001 and no additional petitions were received.

Issues Conference

An issues conference in this matter was held on March 27 and March 28, 2001 at the Church House, in the Town of Hartford, New York.

Appearing for the Applicant was George Rodenhausen, Esq. of the law firm of Rapport, Meyers, Whitbeck, Shaw & Rodenhausen. In addition, a number of the Applicant's experts and consultants participated.

DEC Staff was represented by Steven Brewer, Esq., Assistant Regional Attorney. DEC Staff experts also attended and participated.

HOME was represented by John W. Caffry, Esq., Attorney at law and Michael Naughton, Esq. of the law firm Shanley, Sweeney, Reilly and Allen. HOME's experts and consultants also attended and participated.

Mr. Jerzy Kokurewicz appeared pro se on the second day, March 28, 2001, of the issues conference.

An additional day of issues conference was reserved for August 1, 2001. However, since no additional petitions were received, there was no need to reconvene the issues conference.

Rulings on Issues

The standard for determining whether any issue proposed should be adjudicated is found at 6 NYCRR 624.4(c). When DEC Staff has determined that a permit application, conditioned by a draft permit, will meet statutory and regulatory requirements (as is the case here), the potential party proposing an issue has the burden of persuasion to demonstrate that the proposed issue is substantive and significant.

An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further (6 NYCRR 624.4(c)(2)). As issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit (6 NYCRR 624.4(c)(3)).

In order to establish that adjudicable issues exist, "an intervener must demonstrate to the satisfaction of the Administrative Law Judge that the Applicant's presentation of facts in support of its application do not meet the requirements of the statute or regulations. The offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervener proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervener must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." (In the matter of Halfmoon Water Improvement Area, Decision of the Commissioner, April 2, 1992).

Where the Department, as lead agency, has required the preparation of a Draft EIS, questions of whether to adjudicate issues concerning the sufficiency of the Draft EIS or the ability of DEC Staff to make findings required by SEQRA are determined under the same standards that apply to identification of issues generally (6 NYCRR 624.4(c)(6)(i)(b); 624.4(c)(1) through (4).

SEQRA requires that an agency approving an action must make findings regarding the agency's consideration of environmental effects and alternative actions and the minimization or avoidance of adverse environmental effects (see 6 NYCRR 617.11).

Intervener's Proposed Issue #1 ­ Wetlands

The first issue proposed by the Intervener is:

"whether the Mined Land Reclamation Law ("MLRL") permit application should be denied because the application fails to protect and enhance wetland resources and to minimize the effect of the mine on wetlands as required by the MLRL, and because the adverse impacts to wetlands can not be sufficiently avoided or mitigated as required by the State Environmental Quality Review Act ("SEQRA")."

Specifically, the Intervener asserts that the DEIS underestimates the proposed mine's adverse impacts on freshwater wetlands and that the mine, if constructed, would destroy more than twenty acres of wetlands. Both DEC Staff and the Applicant dispute the Intervener's wetlands analysis.

The Applicant's property contains more than 60 acres of freshwater wetlands. New York State regulated freshwater wetland FA-1, a 26-acre wetland, lies to the northeast of the proposed mine. In addition, the Applicant has identified eleven other wetlands, not mapped by DEC Staff, referred to as Wetlands A-K, respectively. Wetland A is by far the largest at 32 acres and lies to the south of FA-1, and to the east of the proposed mine. Wetlands B-J are smaller, Wetlands H, I and K are connected to Wetland A and the others are not. Wetlands A, H, I and K are all connected to FA-1. In a separate petition, directly to the DEC Commissioner, members of HOME have asked that the entire wetland complex be remapped by DEC Staff. This petition is pending before the Commissioner.

In the DEIS, the Applicant has identified two adverse impacts to wetlands from the proposed mine. In order to construct the access road to the mine, the Applicant must fill approximately 0.22 acres of freshwater wetland and more than 0.40 acres of adjacent area. This filling occurs in two places in Wetland A and at one point in Wetland K. The second impact is the loss of Wetland J, a separate, 1.46 acre wetland, that will be mined in about 25 years. To mitigate these impacts to the approximately 2 acres of wetland, the Applicant proposes to construct approximately eight acres of new wetlands connected to FA-1 in an area not to be affected by mining activity.

Since the Applicant proposes only to impact unregulated state wetlands, no state permit is needed. However, all of the wetlands on the property are regulated by the United States Army Corps of Engineers ("ACOE") and to mitigate the loss of these wetlands, ACOE has required the construction of eight acres of compensatory wetlands, adjacent to FA-1. This construction adjacent to FA-1 has triggered the requirement for a state wetlands permit.

The Intervener challenges DEC Staff's decision not to assert jurisdiction over some of these unmapped wetlands. The Intervener asserts that there is no disagreement that Wetlands A, H, I and possibly K should be included in FA-1, which would more than double its size and include within it areas of greater biodiversity. The Intervener asserts that remapping would have the effect of upgrading FA-1 from its current Class III status to Class II status. The reclassification would trigger higher standards for the granting of the permit. Standards the Intervener asserts, the Applicant cannot meet. These issues are discussed later.

In the DEIS, the Applicant identified indirect adverse impacts to Wetlands A, Wetlands E/F, and C/D/B as the mine progresses and the watertable around the mine is lowered by the Applicant's continual pumping out of the mine. Originally, the Applicant proposed to mitigate this impact by pumping the water from the mine into Wetland A. However, at the issues conference the Applicant introduced a water budget for the wetland which altered debate of the impacts to wetlands. According to the Applicant, the water budget demonstrates that the amount of rainfall is more than sufficient to maintain the wetlands. It is now proposed by the Applicant and DEC Staff that no pumping of water into the wetlands will occur. The Intervener still contends that the proposed mine will destroy more than 20 acres of wetlands, although issues relating to pumping are now moot.

In its petition for party status, the Intervener identified six specific problems and argued that the proposed mitigation will be insufficient. Therefore, the Intervener argues, the DEIS is flawed, the draft permit does not adequately mitigate the wetlands impacts, and the permits should be denied. Each of the Intervener's proposed sub-issued is discussed below.

Lack of a Water Budget for the Wetland

First, in its petition, the Intervener argues that as the mine progresses and the hillside to the west of the wetlands is removed, rainwater that would have flowed down the hillside into the wetlands will be lost. The Intervener asserted in its petition for party status, that without a water budget, there is no way to accurately predict whether the proposed mine and mitigation measures will either take too much water from the wetlands or put too much in. Initially, DEC Staff was also concerned about this issue.

In response to the Intervener's concerns regarding a water budget, the Applicant prepared one and presented it at the issues conference. The Applicant's water budget showed that on average, approximately forty times the amount of rainwater needed to sustain the wetland was deposited there by rainfall. Further, testing by the Applicant showed that the wetlands at the site rest atop a thick layer of impermeable clay. Since this clay lets water pass through it very slowly, most of the rainfall water that is deposited in the wetlands must run off to other surface waters. Therefore, the Applicant concludes, the removal of the slope will only result in an insignificant impact on the wetlands.

Following the issues conference both DEC Staff and the Intervener had an opportunity to review the Applicant's water budget and provide comments for the record. Upon review, DEC Staff withdrew its concerns regarding this issue. The Intervener did not.

Ruling 1A: There is no issue here regarding the need for a water budget since one has been supplied and reviewed.

Adverse Impacts from the Loss of Groundwater Supply

The second sub-issue proposed by the Intervener is that as the mine progresses and the watertable in the area is lowered by continuously pumping out the mine, that the wetlands above will dry out and be destroyed.

In response, the Applicant states that the combination of the large amount of rain water flowing into the wetlands and the impermeability of the clay layer beneath the wetlands answers concerns about the mine's impact on groundwater flow to the wetlands. DEC Staff concurs.

Upon review of the information provided at the issues conference, the Intervener continues to assert that more than twenty acres of wetlands will be destroyed and the Applicant's water budget is flawed. Specifically, the Intervener asserts that the insufficient testing was done regarding the extent of the clay layer beneath the wetlands. The three borings done by the Applicant around the wetland are insufficient to conclude that the clay layer underlies the entire area of wetlands.

Additional testing, the Intervener asserts, would disclose that a significant hydrogeological connection exists between the wetlands and groundwater and that the mine will interrupt this connection and in times of drought, lead to adverse impacts on the wetlands. This interference will also contribute to the dewatering of the eastern sections of the wetlands, destroying more than twenty acres.

DEC Staff's review of the Applicant's water budget and borings lead it to conclude that while the removal of the hill to the west of the wetlands will alter the area's watershed, it will not cause the wetlands to dry out. DEC Staff concludes that the assumptions supporting the Applicant's water budget and borings are reasonable and the results can be relied upon. In addition, DEC Staff will require long-term monitoring of the wetland (see special permit condition 19A).

Ruling 1B: The Intervener has failed to meet the burden of proof to show that an adjudicable issue exists regarding the groundwater connection to the wetlands. The Applicant has done borings that have all shown dense clay, it is reasonable to infer, as DEC Staff does, that this clay extends beneath the wetlands. This information, combined with the Applicant's water budget provide a reasonable basis for concluding that the Applicant's conclusions regarding the mine's effect on groundwater are correct. The Intervener's assertion is based upon the speculation of their experts that there may be holes in the clay layer, not on any reasonable offer of proof.

Adverse Impacts from Invasive Species

In the fifth sub-issue raised, the Intervener argues that an adverse impact to the wetlands will occur because of the potential for the introduction of invasive species. However, the Intervener does not state how this possibility is any more likely as a result of the proposed mine. Both DEC Staff and the Applicant oppose advancing this issue to adjudication.

Ruling 1C: The Intervener has failed in its burden of proof on the issue of increased risk of invasive species in the wetland. This proposed issue is merely speculative and will not be advanced to adjudication.

Adverse Impacts from Pumping

The Third, Fourth and Sixth issues raised in the Intervener's petition all relate to adverse impacts from pumping water into the wetlands. These issues were: that the water pumped into the mine will be at a higher temperature, a different pH, and contain contaminants; that pumping water from the mine into the wetland will significantly alter wetland hydrology; and, that if the pumps feeding water into the wetland fail, that this will cause the wetlands to dry out. It is unclear from the record whether the equipment necessary for pumping will be installed or not.

Ruling 1D: If the equipment necessary for pumping will not be installed, these issues are moot. If not, then the potential impacts of pumping should be adjudicated.

Intervener's Proposed Issue #2 ­ Wetlands

The second issue proposed by the Intervener is:

"whether the application for a Freshwater Wetlands Act permit should be denied because the Applicant has failed to meet the requirements for such a permit."

The Intervener argues the following. First, the hearing process should be adjourned until 1) wetland FA-1 can be remapped to include Wetlands A, H, and I (and probably K), and 2) wetland FA-1 is upgraded from a Class III to a Class II wetland. Second, that if remapping does not occur, the Applicant must stipulate to the jurisdiction of DEC for Wetlands A, H, and I (and probably K) and to the fact that the wetlands are Class II. Third, a DEC freshwater wetlands permit is needed for the road crossing. Fourth, the project cannot meet the standards for permit issuance. Fifth, one specific failure of any wetland permit application is that the mine is not needed. Sixth, that the compensatory wetlands to be constructed will not mitigate the lost wetlands. And finally, seventh, that the Applicant has failed to explore alternative access road locations that would avoid the need to cross the wetlands.

Adjournment of the Hearing for Remapping

The Intervener argues that the hearing process should be held in abeyance until the wetlands on the Applicant's property are remapped. It is not disputed that members of the Intervener have petitioned the Commissioner to remap wetland FA-1 (Petition of Robert E. and Jeanne Fiorette, March 16, 2001). The Intervener asserts that statute requires the suspension of the hearing until remapping occurs. According to the Intervener, Section 24-0301(7) of the ECL requires the Commissioner to remap a freshwater wetland each time a petition is received.

Both DEC Staff and the Applicant contest this interpretation and point to 6 NYCRR 664.7(a)(2) which makes the Commissioner's decision to remap discretionary.

I disagree with the Intervener's interpretation of the statute that each petition requires remapping. Taken to its logical extreme, this would mean that any project opponent at any time in the hearing process could file a petition and automatically stay the proceeding, regardless of its merits. DEC Staff's and the Applicant's interpretation is more reasonable, namely that upon receipt of the petition, the Commissioner uses her expertise to evaluate the merits of the petition, the available resources and other priorities and then decides whether remapping is warranted.

Ruling 2A: There is no requirement in law that the hearing process be suspending pending remapping of the wetlands pursuant to a petition.

DEC Jurisdiction over Unmapped Wetlands

In the alternative, the Intervener argues that the Applicant must stipulate to DEC jurisdiction over Wetlands A, H, and I (and probably K). Specifically, the Intervener cites three decisions of the Commissioner: In the matter of William E. Dailey, Inc., June 20, 1995; In the matter of B.R. DeWitt, Inc., May 7, 1981; and, In the matter of Benincasa, December 7, 2000.

Both DEC Staff and the Applicant do not dispute that FA-1 is connected to Wetlands A, H and I (and possibly K). It is also agreed that any remapping would include these Wetlands in FA-1. It is unclear if a dispute would occur regarding the contention that the new FA-1 would be a Class II wetland.

However, both DEC Staff and the Applicant dispute the Intervener's assertion that DEC administrative case law requires that applicants stipulate to DEC jurisdiction to known unmapped wetlands that would be subject to DEC jurisdiction if they were mapped.

While administrative law precedents carry far less weight than do court case law and the Commissioner is not bound by prior decisions of other Commissioners, the language in Dailey seems right on point.

If it is established that there are jurisdictional wetlands which will be negatively effected, then the regulations (6 NYCRR 664.7) foresee asserting jurisdiction prior to any further activity on the site which could harm the wetland. As the issue is now before me, administrative efficiency demands the matter be addressed by Staff now rather than later. If the wetlands are jurisdictional, landowners will be notified and an Article 24 freshwater wetland permit would be required for further development of the site (Dailey, p. 2).

In this case there is no dispute that there are jurisdictional wetlands which will be negatively impacted so according to my reading of Dailey, the regulations foresee asserting jurisdiction prior to the construction of the access road, which will harm the wetland.

Ruling 2B: DEC must assert jurisdiction over jurisdictional wetlands on the site that will be negatively impacted before the access road may be constructed.

DEC Wetland Permit to Construct Access Road

The Intervener argues that the Applicant must apply for a state wetland permit to construct the access road because DEC should have jurisdiction over an enlarged FA-1.

Both DEC Staff and the Applicant disagree.

I concur with the Intervener and for reasons stated directly above believe that DEC Staff should assert jurisdiction over all jurisdictional wetlands on the site. Thereafter, the Applicant must apply for and receive a DEC wetlands permit before the access road can be constructed.

Ruling 2C: Since it is required that DEC assert jurisdiction over the jurisdictional wetlands now rather than later, there is a requirement that a DEC freshwater wetlands permit be granted before the access road may be constructed.

Standards for Permit Issuance

Since no permit has been applied for, the Intervener's assertion that the project could not meet the standards for the issuance of a wetlands permit in a Class II wetland is premature. However, this issue was addressed by the parties and is summarized below.

The Applicant stated that during the permitting process that Wetland A was treated as if it were regulated by DEC. This included mitigating not only the 0.14 acres of Wetland A and 0.08 acres of Wetland K to be filled but also the more than 0.40 acres within 100 feet of the filled wetland as adjacent area. This mitigation includes the creation of compensatory wetlands at an approximate rate of 4:1. In addition, the Applicant reports that DEC Staff wetland experts have been involved with the project through the review period and consulted with ACOE.

DEC Staff also asserts that the wetland resource is being adequately protected and requiring a state permit would provide no greater protection for the resource. DEC Staff argues that the Applicant has treated the unmapped wetlands as if they were state regulated and this has allowed DEC Staff to require mitigation, pursuant to SEQRA. Further, DEC Staff asserts that the project meets standards for permit issuance for either a Class II or Class III wetland. Finally, DEC Staff argues that the Applicant has met the intent of Article 24 of the ECL by avoiding, minimizing and mitigating adverse impacts to protected wetlands.

Ruling 2D: Since no permit has been applied for to construct the access road, it is premature to consider the question of whether the project would meet permit standards.

Need for the Mine

The Intervener argues that the Applicant has not demonstrated the need for the mine, as required by 6 NYCRR 663.5. But again, there is not yet a wetland permit for the mine access road, so this issue is also premature.

Ruling 2E: Whether the Applicant can demonstrate that the mine is needed is premature because no permit application to construct the mine access road has been filed. The question of whether the new FA-1 will be Class III or Class II will determine which need standard applies.

Compensatory Wetlands

The Intervener asserts that the application for a wetlands permit to construct compensatory wetlands at the site should be denied because these new wetlands will not replace the wetland values and functions that they are intended to replace. Specifically, the Intervener cites three problems with the application. The first two, lack of a water budget and failure to identify the source of water needed to maintain the compensatory wetland are closely related. The third problem identified is that the Applicant has selected the wrong species of plants to place in the new wetland area. This will not replace the habitat that is lost, but rather create a different, albeit four times larger, area of habitat.

Both DEC Staff and the Applicant disagree with the Intervener's assertions. The Applicant asserts that the water budget proves that there is more than enough water to keep the wetland wet. Regarding the selection of plant species to be placed in the compensatory wetland, the Applicant's expert stated that the site of the compensatory wetland was an open area and that it was appropriate to plant scrub and emergent species. These species are not identical to those to be lost when Wetland J, a wooded wetland, is mined in approximately 25 years. The species to be planted are all common in New York State and good for cover and food for wildlife. In addition, the area where the wetland is to be constructed is underlain with impervious clay soil.

DEC Staff recognizes the Intervener's criticisms and notes that before construction can begin on the wetlands, DEC Staff must finally approve the plantings and may adjust them at that time. While not raised as an issue by the Intervener, DEC Staff should probably make decisions regarding the plantings in the compensatory wetland before the FEIS is released. The plantings are part of the "action" under review.

Ruling 2F: No issue for adjudication exists regarding the compensatory wetlands. The Applicant has provided an adequate water budget that identifies the source of water for these new wetlands. The fact that different wetland species will be planted in the new eight acres compared to those that are lost does not adversely impact the values and functions of the wetland.

Alternative Road Location

The Intervener argues that the DEIS does not adequately address alternatives such as a locating the access road at a different point.

The Applicant responds the entire mine project has been designed to mitigate impacts to wetlands and it is apparent from examining the wetland map. It is also obvious that any access to Route 149 from the site would have to cross the wetlands and that the selected road location minimizes filling to 0.22 acres. Regarding the Intervener's suggestion that the access road could be located to the southwest, the Applicant responds that would result in the road being located in the Town of Kingsbury, a municipality that has zoned out mining. Thus, this is not an alternative.

The Applicant does not discuss the alternative of constructing the access road to the north, which would avoid wetland impacts and would outlet in the town of Hartford, avoiding zoning problems.

Ruling 2G: The issue of an alternative access road location that would exit to the north of the site must be examined and will be at the adjudicatory hearing.

Intervener's Proposed Issue #3 ­ Noise

The third issue proposed by the Intervener is

"whether the application should be denied because the project will create significant noise impacts on nearby residences and farms, and the application does not sufficiently mitigate those impacts".

The Intervener asserts that the noise analysis conducted by the Applicant and included in the DEIS is severely deficient and does not mitigate noise impacts to the maximum extent practicable, as required by SEQRA, and therefore the application should be denied.

Both the Applicant and DEC Staff oppose advancing this issue to adjudication. The Applicant responds that there will be an increase in noise in the area surrounding the proposed mine after it becomes operational but that the increase is small and that their noise analysis is adequate and all measures to mitigate the noise impacts have been taken. DEC Staff agrees with the Applicant. The Intervener's sub-issues are discussed individually, below.

The Increased Noise Level

There is no dispute, that if the mine is built, there will be increased noise in the area surrounding. At some locations around the mine, the increase may be from approximately 30 dB(A) to over 40 dB(A). The Applicant contends, based upon Table E of DEC's "Assessing and Mitigating Noise Impacts" revised February 2, 2001 ("DEC's Noise Policy"), that this means the noise levels surrounding the proposed mine will go from being "very quiet" to "quiet". The Intervener does not dispute this, but refer to other language contained in DEC's Noise Policy that increases in noise level over ten dB(A) are very noticeable, especially where the introduced sound is out of character with existing sounds.

Ruling 3A: The fact that there will be increased noise from the proposed mine is not enough to raise this issue to adjudication. Rather the issue of increased noise levels is one for the Commissioner to consider after the adjudicatory process when weighing whether or not to grant the permits applied for.

Noise Impacts on Domestic Livestock

Next, the Intervener asserts that this increased noise will have an adverse impact upon domestic livestock, specifically cows and fallow deer, that are kept on a neighboring farm. However, this assertion is not supported by an offer of proof from a biologist regarding the impacts of noise on these species.

In response, the Applicant at the issues conference presented the statements of a biologist (and consultant) who stated that the expected increase in noise from the mining operations would not have an adverse reaction on either domestic or wild animals.

Ruling 3B: This issue is not advanced to adjudication because the Intervener has failed to make an adequate offer of proof that the increased noise level would have and adverse impact on the neighboring domestic animals.

Noise Impacts on Neighboring Residences

When fully operational, the proposed mine will generate 400 truck trips per day. The Intervener asserts that the noise impacts on neighbors living along Route 149 from this increased truck traffic have been underestimated by the Applicant's noise study.

In response, the Applicant contends that all trucks have to comply with state law regarding noise from trucks (Vehicle and Traffic Law §386). The trucks accessing the proposed mine will both be owned by the Applicant and by others purchasing product from the mine. So the Applicant will only have direct control over a portion of the new truck traffic and its associated noise. Finally, the Applicant states that there are only a few residences along Route 149 where all the trucks must pass before turning to their various destinations.

Ruling 3C: This issue is not advanced to adjudication. Limiting the number of truck trips is a mitigation measure that will be considered by the Commissioner when deciding whether and on what terms to issue the permits sought.

Hours of Operation

In their petition, the Interveners request that the hours of operation for the proposed mine be reduced so that operations commence at 8 a.m., instead of the proposed 6 a.m. In addition, the Interveners seek to have two conditions in the permit removed (Special Conditions #24 and #26). These conditions allow nighttime operation of the mine in times of emergency or when a contract with a state or local government agency require it. These conditions only allow the loading of trucks at night, no blasting or crushing would be permitted.

In response, the Applicant argues that the noise impacts during the rare nighttime operations would be less than daytime noise from the plant because less equipment will be used.

Regarding the 6 a.m. start time for operations at the proposed mine, DEC Staff states that this is not uncommon as an industry practice or as a permit condition. The Applicant asserts that many mining permits do not have any limitation on the hours of operation at all.

Ruling 3D: This issue is not advanced to adjudication because there is no factual dispute. Limiting hours of operation would mitigate the noise impacts of the mine and will be considered by the Commissioner when deciding whether and on what terms to issue the permits sought.

The Adequacy of the Applicant's Noise Study

The Interveners assert that the Applicant's noise study is severely deficient for a number of reasons, each discussed separately, below.

The Intervener asserts that because the Applicant's noise study used receptors (noise monitoring locations) at roadside and not at the houses of the neighbors of the proposed mine, this overestimated the ambient noise levels and thus underestimated the noise impacts of the mine. The Applicant responds that the receptors were placed away from the roadside and were appropriately situated. DEC Staff concurs with the Applicant and states that the receptors were placed in appropriate locations.

Ruling 3E: This issue is not advanced to adjudication. The dispute regarding the location of receptors does not raise a significant and substantive issue.

Failure to Mitigate Noise Impacts

The Intervener asserts that the entire basis of the Applicant's noise study is faulty because the mining equipment used to forecast noise impacts is not adequately identified and may not be the same equipment to be used by the Applicant at the proposed mine. Further, that since the equipment has not been identified, the Applicant has not shown that the noise from this equipment has been minimized to the maximum extent practicable, as required by SEQRA.

Both the Applicant and DEC Staff state that the equipment used in the study is very similar to that used at the neighboring Pallette Quarry. To estimate the noise from the proposed mine, the Applicant went to this neighboring quarry and took sound measurements of each piece of equipment and used this data to model the noise impacts. The Applicant's noise study assumes that all the equipment is being operated simultaneously at full capacity and that there is no attenuation of the sound due to vegetation.

Regardless of the basis for the Applicant's estimates of the noise from the mine, the fact remains that the sources of noise have not been adequately identified nor has it been demonstrated that the noise emissions have been minimized.

RULING #3F: The issue of whether the Applicant has minimized noise pollution from the mine will be advanced to adjudication. The Applicant must better identify each piece of machinery to be used and the associated noise mitigation measures. The DEIS does not address the requirements in SEQRA that noise impacts be minimized.

Intervener's Proposed Issue #4 ­ Archeological Resources

The fourth issue proposed by the Intervener is:

"whether the application should be denied because it will have significant adverse impacts on the unparalleled archeological resources of the site, which include a complex of prehistoric Native American stone quarries known as the 'Smith's (sic) Basin Archeological District,' that is eligible for listing on the National and State Registers of Historic Places, because DEC has not considered alternatives to the destruction of this resource, and because the proposed mitigation measures are both inadequate and procedurally improper; or in the alternative whether the hearing should be put on hold until the proper consultative procedures are adhered to".

Both the Applicant and DEC Staff oppose advancing this issue to adjudication. The Applicant and DEC Staff contend that while the Interveners have raised legal and policy questions, no questions of fact suitable for adjudication have been raised.

The proposed mine site and surrounding property owned by the Applicant contain areas of ancient quarrying (est. 8,000 to 1,000 B.C.E.). Some areas of ancient quarrying will be destroyed should the pending permit applications be granted. Since the construction and operation of the proposed mine will destroy nearly 200 acres of the site and, according to the Applicant, this destruction is unavoidable, the Applicant has proposed a series of measures to mitigate this impact. The Applicant reports expenditures of approximately $200,000 on archeological site work and development of the mitigation plan.

The Applicant's Proposed Mitigation Plan

Contained within the DEIS are the various reports regarding the Applicant's archeological studies of the site (Appendix 4A). However, the final version of the Applicant's mitigation plan had not been shared with either DEC Staff nor with the Interveners prior to the issues conference because the Applicant was working with the New York State Office of Park, Recreation and Historic Preservation ("OPRHP") to address its concerns. Copies were provided following the issues conference and all parties were provided an opportunity to provide written comments for the record.

To mitigate the impacts, the Applicant proposes to create a Data Retrieval Plan ("DRP") to accurately record for future scholarly research what was found in the areas to be destroyed. Specifically, before each phase of mining commences: high resolution mapping of the location of sites of archeological interest will be done; photographs will be taken of all objects that cannot be removed; samples will be taken; where appropriate, excavations will be carried out; and, analysis of materials removed from the site will be conducted. Then periodic reports will be produced. In addition, the Applicant will provide an on-site building for the storage of artifacts recovered. Finally, the Applicant will establish in the area of the site not to be mined, educational programs for children, graduate students and professionals who wish to explore the remaining, higher quality pre-historic mines on the site.

This mitigation plan has been developed in consultation and reviewed by the staff of OPRHP, specifically the State Historic Preservation Officer (SHPO), Robert Kuhn, Ph.D. Dr. Kuhn stated that OPRHP has identified the significant resources on the property, identified the impacts and worked to design a Data Recovery Plan to mitigate the loss of the resource. In Dr. Kuhn's opinion, the Data Recovery Plan is extremely thorough, comprehensively detailed and will make a major scientific contribution. Based upon its consultation with OPRHP, DEC Staff concludes that the Applicant's mitigation plan is very good.

The Interveners assert that any mitigation plan is inadequate and that the mining application should be denied so that these archeological resources can be preserved in situ.

The Uniqueness of the Prehistoric Quarry

The Intervener asserts that the 197 acre footprint of the proposed mine that would be destroyed are a unique archeological resource that should left untouched. To support their claim, the Interveners point to the fact that the entire site has been named by OPRHP and is eligible for inclusion on the National Register of Historic Places.

The Applicant disputes the claim made by the Intervener that the site of the proposed mine is unique and must be studied in place and never removed. The Applicant asserts that the evidence of ancient quarrying activity cannot be seen except by the trained eye and that it exists not only in the 190 acre footprint of the proposed mine, but also on the surrounding 1,100 acres controlled by the Applicant and on neighboring properties as well.

To support the Applicant's view, Mr. Philip LaPorta, appeared at the issues conference. Mr. LaPorta was consulted at the request of OPRHP due to his expertise in pre-historic quarries. He is regarded as a, if not the, pre-eminent expert in these types of ancient mining sites. Mr. LaPorta stated that the ancient inhabitants of the northeast made stone tools from chert, a type of rock, and that wherever rock formations present chert to the surface, evidence of quarrying can usually be found. In fact, these quarries exist from the Canadian border to northern New Jersey and Pennsylvania.

Mr. LaPorta explained, based upon his direct field explorations, that the 197 acre mine footprint does contain evidence of ancient quarrying, but that the archeological resources are much greater at other areas of the site and dwarf the resource within the mine footprint. Further, that the Applicant's entire property, while containing ancient quarries, is not as large as others in the area nor is it unique, in terms of archeological resources. Mr. LaPorta estimates that there are some 3,000 of these types of quarries in the area.

Dr. Kuhn concurs that archeological resources within the mine footprint are very similar to those on the rest of the Applicant's property and to others in the region. While OPRHP does not have specific criteria regarding which sites should be avoided rather than mitigated, sites to be avoided include those with human remains or sites with truly unique characteristics. This site does not rise to that level. DEC Staff possesses no expert knowledge on this subject and relies on OPRHP for recommendations.

The Intervener's expert disagrees and asserts that this site must be preserved.

Ruling 4A: There is no dispute of fact warranting adjudication regarding the archeological resources at the site. There remains an issue for the Commissioner as to whether the mining permits should be issued.

The Applicant's Consideration of Alternatives

The Interveners assert that the Applicants consideration of alternatives, as required by SEQRA and the State Historic Preservation Act (SHPA) section 14.09(1), is defective because the Applicant did not analyze the no action alternative or the alternative of a smaller mine which would cause less disturbance. Both DEC Staff and the Applicant assert that the alternatives analysis provided are adequate. OPRHP Staff concur.

Sections 7.1 through 7.6 of the DEIS address alternatives to the project under consideration here. This analysis meets the minimums required under SEQRA.

Ruling 4B: The analysis of alternatives within the DEIS meets the minimums under SEQRA. The DEIS is not deficient.

Alternatives Analysis Required by SHPA

Regarding the alternatives analysis required by SHPA and its corresponding regulations, I believe that OPRHP, as the agency administering this law, is entitled to substantial deference in its interpretation. Dr. Kuhn, on behalf of OPRHP, stated that the alternatives within the DEIS can be accepted for compliance with OPRHP's alternatives analysis (9 NYCRR 428.8, p. 188). In addition, Dr. Kuhn stated that after review of the DEIS and other documents relating to this proposed mine, OPHRP Staff came to the conclusion that there were no alternatives to the impact of the destruction of the surface of the mine footprint and that development of a mitigation plan was appropriate. The Intervener seems to be seeking that OPRHP require in their alternatives analysis that smaller projects be considered. However, neither the SHPA nor the regulations address what the alternatives analysis entail. OPRHP seems to interpret this requirement as analyzing the project to see if alternatives exist, and if OPRHP Staff do not believe that there are any alternatives to consider appropriate mitigation. This approach for conducting an alternatives analysis does not seem to me to be irrational or unreasonable.

Ruling 4C: Correspondingly, I do not believe that OPRHP's recommendation to mitigate the impacts of the proposed mine based upon this alternatives analysis was unreasonable. Similarly, I do not believe that DEC Staff's decision to accept OPRHP's recommendation creates an infirmity or raises an adjudicable issue.

Need for Additional Site Work

The Interveners also assert that there is not enough information in the record regarding the resources on the site and that additional field work must be undertaken before a permit can be issued to mine the site. Specifically, Interveners assert that a Phase 2 Archeological Study needs to be done to properly assess the impacts, alternatives and mitigation for the site.

The Applicant responds that contained within the DEIS (Volume 4A) are a January 1995 Report, a Supplemental Phase IA Assessment and Revised Phase IB Cultural Resources Survey, and a Phase IB Cultural Resources Survey ­ Supplement. These documents are the equivalent of a Phase II study. DEC Staff and OPRHP Staff concur that no further study is necessary.

Ruling 4D: The material contained within the DEIS adequately identifies and quantifies the archeological resources at the site.

Public Input into the DRP

The Interveners assert that DRP was developed in secret, without the required opportunity for public input. The Interveners cite the fact that they were not supplied with a copy of the current version of the DRP until after the issues conference.

The Applicant responds that current version is nearly identical to the plan available to the public since November 2000, with the exception that lengthy academic sections were added to provide a more complete justification for the plan. Dr. Kuhn, from OPRHP, stated that the development of the DRP was in accordance with applicable regulations (9 NYCRR 428.9).

Ruling 4E: This is not an adjudicable issue because no dispute of fact exists. Further, the fact that the Interveners did not have a copy of the current version of the DRP falls into the category of harmless error as they had a very similar version and have been availed of the opportunity to comment on the most recent version.

Intervener's Proposed Issue #5 ­ Visual Impacts

The fifth issue proposed by the Intervener is:

"whether the application should be denied because the mine would create significant adverse visual impacts, that are not, or can not be, sufficiently minimized or mitigated as required by SEQRA and the MLRL".

Specifically, the Intervener asserts three arguments regarding visual impacts, discussed separately, below. Both the Applicant and DEC Staff oppose advancing these issues of visual impacts to adjudication.

Adverse Visual Impacts on Aesthetic Resources

The Intervener argues that during Phase 4 of the proposed mining plan (in approximately 50 years, depending upon market conditions) that a portion of the mine will be visible from the Champlain Canal and U.S. Route 4. The Champlain Canal is listed on both the State and National Registers of Historical Places. This portion of U.S. Route 4 is a segment of the New York State Scenic Byways System. Under the DEC Program Policy, entitled "Assessing and Mitigating Visual Impacts" both the Champlain Canal and U.S. Route 4 are considered Aesthetic Resources and adverse visual impacts need to be mitigated.

Ruling 5A: The Intervener has made a sufficient offer of proof regarding the potential for an adverse visual impact which I believe warrants further inquiry. Following this inquiry, it may well be that the adequate mitigation exists in the permit or that a planting plan for trees needs to be incorporated in the permit to ensure that in 50 years there will be trees large enough to screen the view of the mine. In any event, it is premature to decide the issue. The only decision needed now is that the Intervener has raised a significant and substantial issue which warrants further inquiry. They have.

Adverse Visual Impacts from Lighting during Night Operations

The Intervener has raised concerns regarding the use of lights at the proposed mine during nighttime operations. These concerns were partially addressed by a new Special Condition 27 to the draft mining permit. The Intervener remains concerned that the lights should only be used during mining operations and not left on otherwise. This seems reasonable and Special Condition 27 should be modified to ensure that lights at the site are only used when absolutely necessary.

Ruling 5B: Assuming such a change is made to the mining permit, no issue for adjudication is raised.

The Visual Impact of Removing the Hill

The final issue raised by the Intervener is the visual impact of lowering the hill upon which the mine is proposed to be situated. The Applicant and DEC Staff do not dispute that there will be a visual impact from the removal of the hill, but assert that there are no factual issues regarding the general impact of the removal of the hill.

Ruling 5C: This is not an issue for adjudication because no material issue of fact exists. The hill will be gradually lowered and replaced by a lake.

Intervener's Proposed Issue #6 ­ Groundwater

The sixth issue proposed by the Intervener is:

"whether the application must be denied because the Applicant has failed to prove that the project will not adversely affect groundwater and nearby water wells; or in the alternative, whether the hearing process should be put on hold until a proper investigation of hydrological issues relating to the fractures and karst topography in the area is conducted".

The Intervener believes that the Applicant's modeling of the of the hydrogeology of the site of the proposed mine is flawed, and that there are greater flows of groundwater beneath the site than testing to date has revealed. The Intervener asserts that underestimation of groundwater flows creates four issues for adjudication: 1) the neighbors' wells will be adversely affected and that the well arbitration agreement agreed to by the Applicant and DEC Staff does not minimize impacts to neighboring wells; 2) springs near the site will be adversely affected; and, 3) wetlands will be adversely affected.

Both DEC Staff and the Applicant oppose advancing any hydrogeological issue to adjudication. They assert that the Applicant's hydrogeological investigations accurately characterize conditions underlying the site and that the well arbitration agreement sufficiently minimizes any impact.

Neighboring Wells

The Intervener asserts that because of alleged defects in the Applicant's hydrogeological work regarding the movement of groundwater, the wells of the neighboring homes, businesses and farms will be adversely impacted. Both DEC Staff and the Applicant assert that the question of whether such a flaw exists is irrelevant to the disposition of this issue. The Applicant and DEC Staff argue that the Commissioner has ruled that in cases where the Applicant agrees to provide potable water in the event that such an impact to neighboring wells occurs, that a Well Arbitration agreements is adequate mitigation. In the Matter of Empire Bricks, Interim Decision of the Commissioner, August 1, 1990.

In this case the Applicant has agreed to a permit condition requiring a Well Arbitration Agreement. Under this agreement, the Applicant has pledged to provide water to all existing and new homes, all farms and businesses within a three-quarter mile radius of the mine if a property owner can reasonably prove that his or her well was adversely affected by activities at the mine. While discussions among the parties regarding the terms of the well arbitration agreement, one issue remains. Namely, the Intervener asserts that in another case before the Office of Hearings (In the matter of the application of St. Lawrence Cement) the well arbitration agreement mitigates to a greater degree more of the possible impacts than does the proposed well arbitration agreement in the instant case. Specifically, in this case that the neighbor must prove the mine interfered with his or her well while under the terms of the well arbitration agreement in St. Lawrence the Applicant must prove that it did not cause the interference.

The question of whether a mine will interfere with the groundwater supply to neighboring wells when a well arbitration agreement is proposed has been answered by the Commissioner in the negative (Empire Bricks). However, the question of whether the agreement minimizes environmental impacts to the greatest extent practicable, as required by SEQRA, remains. A factual question exists as to whether or not the agreement proposed in this case so minimize, in light of the agreement in St. Lawrence. Obviously, if the Applicant were to agree to the language in the St. Lawrence agreement, the issue would be moot.

Ruling 6A: No issue for adjudication exists regarding any potential adverse impact to neighboring wells by the proposed mine. However, a question does exist regarding whether the agreement minimizes impacts, as required.

Springs and Wetlands

The Intervener asserts that there may be adverse impacts on springs and wetlands from the proposed mine. These impacts have not been adequately identified because the Applicant's hydrogeological modeling is flawed. The Intervener asserts three specific flaws, which are all closely related. First, that a full study of the underground interconnection of features wasn't done. Second, that the Applicant didn't properly analyze underground fractures. Third, the Intervener states that the wrong type of testing was done, and that pumping tests should have been done instead of Flow Net Analysis. Both the Applicant and DEC Staff oppose advancing this issue to adjudication.

Because mining is proposed to occur below the water table, it will be necessary of the Applicant to continually pump water out of the mine during its operation. This pumping will have the effect of lowering the watertable surrounding the mine. The question is how far will the impacts be felt and how great will they be. The Applicant's expert opines that flow rate for groundwater is uniform throughout the site. That the testing done at the five existing test wells and the resulting Flow Net Analysis (included in the DEIS) of the impacts of the mine accurately predict that groundwater will only be affected up to approximately 600 feet.

The Intervener's expert asserts that the rocks beneath the Applicant's property are not uniform and that underground features and large, undetected fractures will allow groundwater to travel much faster and from much farther away. This could possibly cause damage to wetlands and springs adjacent to the site. The Intervener continues that the reason these features were not properly identified was because the Applicant drilled the test wells in the wrong locations and therefore missed areas where groundwater is traveling much faster.

The basis for Intervener's assertion that groundwater moves faster than predicted is the Applicant's mischaracterization of the geology in the area. Specifically, the Intervener's expert argues that soft, water-soluble layers of rock beneath the site have developed fissures and cracks in them that will transport groundwater quickly. As proof of this theory, the Intervener presents evidence of about 25 features including a number of caves, sinkholes, springs and other "karst" features created by groundwater flowing through the underground rocks in the area surrounding the mine. Nearly all of these karst features occur to the west of the site of the proposed mine. The Intervener identifies only one karst feature on the Applicant's property, but notes that it has not had access to the site. The Applicant does report that a retired judge, John Leary, remembered there being two caves on the Applicant's property which had been filled in, but cannot remember the exact location.

The existence of these karst features, the Intervener argues, suggest that more may exist underground, and without further study, there is no way to accurately predict whether the proposed mine would adversely affect either wetlands or springs. To properly evaluate groundwater flow, the Intervener's expert believes that the Applicant should drill seven or eight new test wells, in places identified by the Intervener, likely to reveal the presence of underground features. The Intervener suggests the location of these new test wells be based upon known karst features off-site. After the wells are drilled, information should then be collected and analyzed. The Intervener believes this will take approximately five months of work.

The Applicant's expert does not dispute that karst features exist in the area, but asserts that the karst features are in geologic formations that exists to the east of the proposed mine. Specifically, that a seam of softer rock runs from north to south on the eastern side of the proposed mine and that this seam does not run beneath it. The Applicant's expert bases this belief on the location of the karst features identified by the Intervener and the 1985 New York State Geological Survey. According to the Applicant's expert, all karst features exist in rocks that will not be affected by the mine. In addition, the field work done on the site does not indicate the presence of karstic fractures in the rock.

The Applicant's expert continues, that since the rocks at the mine site are not karstic, the use of the New Flow Analysis is appropriate in this case. The use of this analysis and other work done by the Applicant took a conservative approach to estimating the impacts of the proposed mine on groundwater and therefore the DEIS is not deficient. In addition, at the issues conference the Applicant stated that the Intervener's theory about groundwater flow at the site assumed that water would flow uphill. This statement was not rebutted.

Responding to the Intervener's argument, the Applicant acknowledges that there are fractures in the rock in and around the proposed mine, but that these fractures occur uniformly, and therefore, groundwater flow is also uniform. The Applicant's expert points out that in order for the Intervener's theory that groundwater moves through fractures in the rock at a greater speed and from greater distances, there would have to be long, uniform cracks in the rocks, which is extremely unlikely. If no such uniform cracks exist, then the water will only flow as fast as it can through the narrowest point. Due to the geology at the site, this flow of groundwater would have to occur through different rock formations, some of which (including the "Wincell Creek Siltstone") are not subject to ready solutioning by water.

DEC Staff concurs with the Applicant that no issue for adjudication has been raised and faults the Intervener's offer of proof. DEC Staff's expert disputes the Intervener's assertion that the rocks adjacent to or below the proposed mine are karstic.

This issue boils down to a disagreement between experts regarding the characteristics of the underground rocks at and surrounding the site of the proposed mine. The Applicant's expert (and DEC Staff) believe that the Intervener's assertions that the connection between known surface karstic features and the inference of fast flowing groundwater at the site is wrong. They base this on field work and analysis of the geology of the area. The Applicant can simply explain the location of known karstic features as occurring in rocks outside the mine footprint. The Intervener's arguments are far more speculative, based on theory and unsupported assertions. I find the Applicant's explanations convincing and see no reason to inquire further.

Finally, the Intervener raises two other issues in its petition, that were not addressed at the issues conference. First, that not only will groundwater flow through karstic features, but it will also flow along faults, however, the Intervener makes no separate offer of proof regarding faults. Second, that the lake to be constructed at the site, after be hydrogeologically linked to domestic wells. Again, the Intervener made no offer of proof regarding this possibility.

Ruling 6B: The Intervener has failed in their burden of proof to establish that an adjudicable issue exists regarding the flow of groundwater. This is a dispute between hydrogeologic experts. The Applicant's expert has done field work, while the Intervener's expert relies on theory that fails under scrutiny. I find no reason to inquire further. This issue will not be adjudicated. Since this issue is not joined, site access related to this issue is denied.

Intervener's Proposed Issue #7 ­ Endangered Species

The seventh issue proposed by the Intervener is:

"whether the hearing should be put on hold until the Applicant undertakes proper searches of the site and its surroundings for the presence of several rare, threatened or endangered species, including the timber rattlesnake, for which the site and its surroundings represent suitable habitat, and which are likely to inhabit the area".

The two species specifically raised by the Intervener at the issues conference are timber rattlesnakes and bog turtle. Interveners also assert that the Applicant did not accurately survey for flora and fauna that may live in caves at the site.

Both the Applicant and DEC Staff oppose adjudication of this issue and are convinced that there are no caves on the site and that neither timber rattlesnakes or bog turtles reside on the site.

Before this ALJ will order access to a site for Interveners to conduct investigations, the Interveners must show that an issue is both substantive and significant. In this case, the Interveners have failed to do so and, therefore, both the Interveners' request to adjudicate this issue and motion for site access to search must be denied.

In this case, the Interveners have failed to make an adequate offer of proof. While the intervener's offer of proof at the issues conference need not be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." In the Matter of Sithe/ Independence Power Partners, Interim Decision of the Commissioner, November 9, 1992. Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, p. 8, citing In the Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.

Timber Rattlesnakes

The Intervener's offer of proof regarding the alleged existence of timber rattlesnakes on the site is inadequate to raise this issue to adjudication. Each allegation is dealt with separately, below.

First, Interveners assert that the entire 1,300 acres should have been searched for rattlesnakes and their dens. The Interveners' consultant, the Chazen Companies, states "timber rattlesnakes are generally found in deciduous forests in rugged terrain. They den in ledges, rock outcrops or talus slides with crevices.... These conditions are abundantly present on the Jointa-Galusha property." (Chazen Report, p.28).

At the issues conference, one of the biology experts hired by the Applicant reported that approximately 400 acres of the property had been searched for timber rattlesnakes, including the entire mine footprint. The remaining acreage was not considered to be likely habitat based upon this expert's review of the scientific literature concerning shrub density and canopy cover and was not specifically searched for the presence of timber rattlesnakes. However, many of the Applicant's other consultants have been over the remaining property and have not reported any contact with timber rattlesnakes. The Applicant's expert also responded to the Intervener's expert's general description of rattlesnake habitat and commented that if it were accurate, then most of New York State would be suitable habitat for timber rattlesnakes and they wouldn't need to be protected as a threatened species.

Second, the Intervener asserts in its petition that there is a known timber rattlesnake den within three miles of the proposed mine and that rattlesnakes from this den could travel to the proposed mine site. However, at the issues conference it became clear that this information, obtained from DEC's Natural Heritage Program (which monitors the location of known rattlesnake dens), was not accurate and that the known den was in fact more than four and perhaps five miles from the proposed mine. The exact location is kept secret to protect the threatened snakes. The Applicant asserted that for a rattlesnake to travel to the mine site, it would have to travel farther than rattlesnakes are known to migrate, cross a railroad track, cross NYS Route 4, swim across the Champlain Canal and cross several miles of open ground (which is not their natural habitat). DEC Staff concurs that the proximity of the known den does not raise this issue to adjudication. I concur, the Intervener's belief that rattlesnakes from the known den could or would use the site of the proposed mine is mere speculation.

Third, the Intervener asserts that timber rattlesnakes have been known in Washington County and in the Town of Hartford in the past. This information was based upon unsubstantiated anecdotes and the historical record of bounties paid by the state for dead rattlesnakes a generation ago. This information does not raise this issue to adjudication.

What is interesting is that despite the fact that many of the neighboring landowners are members of HOME, none has provided information regarding personal observations of timber rattlesnakes on their property. If the neighbors have not seen rattlesnakes, I believe they probably don't exist on the site of the proposed mine.

Bog Turtles

The Intervener asserts that the site of the proposed mine may contain bog turtles, an NYS endangered species. This belief is based upon the presence of tussock sedge and shrubby cinquefoil, common wetland plants, on the property.

Both DEC Staff and the Applicant oppose adjudication of this issue. First, the Applicant argues that if bog turtles existed everywhere tussock sedge and shrubby cinquefoil did, then they wouldn't be endangered. Second, according to DEC Staff the last known siting of a bog turtle in Washington County was in the 1870's. Third, the Applicant reports that DEC's Natural Heritage Program reports that there are no known existing bog turtle colonies north of Columbia County. Fourth, the Applicant's experts looked in the wetlands and adjacent areas and found no evidence of bog turtles.

It is extremely unlikely that bog turtles inhabit the site. The Interveners have only introduced speculation into the issues conference record and this is insufficient to raise this issue to adjudication.

Cave Flora and Fauna

The Intervener also asserts the development of the mine site will endanger cave flora and fauna, specifically rare wild bats, that exist in caves on the site. DEC Staff and the Applicant oppose this issue on the basis that they have not observed any caves on the site of the proposed mine and therefore this is not an issue.

This issue is related to Intervener's issue #6 and the discussion of karst features on the site. The Intervener's offer of proof on this issue is insufficient. The petition contains one sentence stating generally that rare, threatened or endangered species live in caves. This is supported by two sentences in the Chazen report. Neither document lists a single species (bats were mentioned at the issues conference) and these broad assertions without any supporting information are insufficient to raise an issue for adjudication.

Other Wildlife Issues

A number of other species enjoying special protections have been mentioned in comments in the legislative and issues conference records but no issue for adjudication is raised. Opponents of the proposed mine have testified at the legislative hearing to observing golden eagles at the site as well as a mountain lion, however, no offer of proof regarding these species was offered at the issues conference.

The Intervener's expert also mentions in passing two other turtle species in their report (Chazen report, p. 29), but the Interveners did not discuss either the Eastern Box Turtle or Wood Turtles at the issues conference. The Intervener's offer of proof regarding the possible presence of these species on proposed mine site is too weak to warrant adjudication.

RULING #7: No issue for adjudication exists regarding the existence of any species on the site of the proposed mine. The Interveners have failed in their offer of proof for timber rattlesnakes, bog turtles, cave flora and fauna and all other species. Since there is no issue for adjudication, the Intervener's motion for site access to search for these species is denied.

Intervener's Proposed Issue #8 ­ Community Character

The eighth issue proposed by the Intervener is:

"whether the application should be denied because the project will have an unacceptable adverse impact on the rural character of the community surrounding the site, including the New York Canal Recreationway".

The Intervener divides this issue into five parts: dust impacts on community character; economic and related impacts on community character; traffic related impacts on community character; other community character impacts; and, impacts to the character of the Canal Recreationway. In addition to these five impacts, the Intervener also notes that noise (Issue #3, above), visual impacts (Issue #5, above), and the possibility of contaminating neighboring wells (Issue #6, above) as factors that will also impact community character.

The Applicant counters that it has adequately assessed and minimized all aspects of the proposed mine's impacts on community character. DEC Staff concurs.

Dust Impacts

In its petition, the Intervener identifies five specific issues relating to dust impacts on community character. Both the Applicant and DEC Staff oppose all issues. Each issue is dealt with separately, below.

First, that the Intervener asserts that there is nothing in the record to support claims that the proposed dust controls will be effective and that there is no evidence in the record that the Applicant can meet the permit condition prohibiting visible dust from leaving the site.

In response, the Applicant offered the opinion of its dust expert, Arthur Fossa, who stated the Applicant had completed and submitted as part of the DEIS a Fugitive Dust Control Plan (Volume 5, Appendix XIV) to address this issue. Mr. Fossa continued that the air pollution impacts of mining have been widely studied and understood. He stated that the assessments of dust control within the DEIS were all properly conducted. The Intervener offered no expert of their own. Mr. Fossa rejects the Intervener's contention that there is nothing in the record to demonstrate that fugitive dust will not leave the Applicant's property. He states that the Applicant has taken a number of measures to minimize and eliminate off-site dust impacts including purchasing a large buffer zone around the site and maintaining the vegetation in the buffer. The Applicant will also regularly water and sweep the roads on the site to prevent dust and the permit requires the Applicant to apply dust suppressants to ensure that fugitive dust does not leave its property.

Ruling 8A: The Intervener has failed in their offer of proof to raise a substantive and significant issue regarding whether the proposed fugitive dust controls will be effective.

Second, the Intervener asserts that there is no permit condition to prohibit microscopic particles of dust from site. The Intervener proposes adjudicating the alleged failure of the Applicant to address issues relating to fine particulate matter, also known as PM-2.5. Specifically, the Intervener asserts that the issue of PM-2.5 from diesel trucks was not sufficiently examined in the DEIS and that further examination of this issue is warranted. The Intervener cites the recent case, Uprose v. PASNY, 2001 WL 830817, to support its claim that SEQRA requires an analysis of PM-2.5.

In response, both the Applicant and DEC Staff assert that the anticipated levels of PM-2.5 from the mine and associated activities are projected to be far below proposed or existing standards. Both dispute the Intervener's application of Uprose in the instant case.

I also disagree that Uprose is applicable here. Uprose addressed stationary, not mobile sources, to be located in urban areas. This issue, as framed by the Intervener, deals with mobile sources in a rural area. I believe that the Commissioner's Interim Decision In the Matter of American Marine Rail, LLC. is applicable here and that this issue does not warrant adjudication. Further, §209 of the Federal Clean Air Act preempts states from enacting more restrictive emissions requirements from motor vehicles than allowed under federal law.

Ruling 8B: The Intervener's proposed issue regarding PM-2.5 is not advanced to adjudication.

Third, the Intervener asserts that the permit should require that the entire access road to the mine be paved, instead of the third of it closest to the state route 149. In response the Applicant states that its decision to pave the first 1,400 feet of the access road was in response to concerns raised by the local government. The Applicant believes that this action addresses the issue of dust from the access road. DEC Staff concurs. Both DEC Staff and the Applicant believe that the Fugitive Dust Plan will minimize dust impacts and that there is no need to further pave the access road.

Ruling 8C: The Intervener has failed in their offer of proof to raise a substantive and significant issue regarding whether paving the entire access road will further reduce fugitive dust. This issue will not be adjudicated.

Fourth, the Intervener asserts that the draft mining permit does not adequately prevent dust from coming from trucks hauling product from the mine. In response, Mr. Fossa stated that the trucks were regulated by DOT and would be required to be covered. Regarding dust from the wheels of the trucks, Mr. Fossa stated that traveling along paved portion of the access road would greatly mitigate dust impacts from trucks. DEC Staff concurs that the draft mining permit specifically requires that water or other approved dust suppressant must be applied to all road to prevent visible dust from leaving the Applicant's property. The Intervener did not offer any expert on this issue.

Ruling 8D: The Intervener has failed in their offer of proof to raise a substantive and significant issue regarding dust from trucks. This issue will not be adjudicated.

Fifth, that dust on the site will create an adverse visual impact, that contrasts with the existing community character. Again the Intervener did not offer any expert on this issue.

Ruling 8E: The Intervener has failed in their offer of proof to raise a substantive and significant issue.

Economic Impacts on Community Character

The Intervener asserts that the proposed mine will have an adverse impact on 1) neighboring property values, and 2) neighboring farms and businesses. DEC Staff and the Applicant assert that the mine will not have a negative economic impact or negatively impact property values and local businesses.

1. Property Values. To support its assertion that the issue of adverse impacts on neighboring property values should be adjudicated, the Intervener's proffer a report prepared by Mr. Kevin R. Decker, who was unable to attend the issues conference. Mr. Decker's four page report states that in his opinion, the proposed mine will adversely impact property values and that the failure to discuss this impact in the DEIS is a defect. Mr. Decker bases his opinion on economic theory and empirical studies of other "undesirable" land uses on neighboring property values. On this issue, his report asserts that every mine in every location probably will lower property values and speaks in vague generalities.

In response, the Applicant attempts to distinguish mining activities from the "undesirable" facilities which were shown empirically to depress property values and included in the Intervener's report. The Applicant points out that the Intervener's report explicitly states that there are no published studies of the impacts of mining on property values. The Applicant argues that the impacts of mining are not comparable to those cited in the Intervener's study, such as hazardous waste sites, solid waste sites, landfills and incinerators. The Applicant also offered the statements of their consultant, Mr. Robert LaFleur, who cited two recent studies from New York State that showed no evidence that mining activity depressed property values. These studies were not directly cited and the Interveners did not ask for copies of them or for a chance to respond during the intensive exchange of documents and arguments during and after the issues conference.

Ruling 8F: The dispute over whether the proposed mine will impact neighboring property values is not a significant and substantive issue. Rather it is an academic debate among experts. These potential impacts will be considered by the Commissioner in determining whether to issue the permits sought.

2. Neighboring Businesses and Farms. To support its claim that the proposed mine will have an adverse economic impact, the Intervener's present a one-page letter from Ken and Kathy Smith, members of HOME, who own a dog breeding and boarding business near the proposed mine. The Smiths write that they fear a detrimental effect on their business due to the opening of the mine. The Intervener also asserts that the mine will adversely impact the livestock at a neighboring farm, thereby financially injuring the family farm. Both DEC Staff and the Applicant assert that these concerns do not rise to the level of an adjudicable issue. I concur.

Ruling 8G: The Intervener has failed in their offer of proof to raise a substantive and significant issue or show that the DEIS was deficient regarding the issue of potential adverse impacts on farms and businesses near the proposed mine. This issue will not be adjudicated.

Traffic Related Impacts

The Intervener asserts four traffic related impacts on community character: 1) that the Applicant's traffic safety study identifies severe traffic safety problems with the intersection of the mine access road and State Route 149, 2) that the proposed mine will increase traffic on Route 149 road by 30%, 3) that these additional trucks will create an adverse visual impact, and 4) that the DEIS did not consider fog when evaluating stopping sight distances for trucks. DEC Staff and the Applicant dispute the Intervener's assertions.

1. The Safety of the Intersection. The Intervener asserts that the Applicant's own traffic safety study identifies severe traffic safety problems with the intersection of the mine access road and State Route 149. The Applicant disputes this claim and introduced a letter, dated February 13,2001, from the New York State Department of Transportation ("DOT") to DEC Staff (Issues Conference Exhibit 14). This letter notes that DOT had found the plans for the intersection between the mine access road and State Route 149 acceptable and issued a permit for the work to commence. The letter goes on to state that no left turn lane is needed because traffic on Route 149 is not that great and that the stopping sight distances exceed DOT's minimums and are therefore acceptable. DEC Staff concurs with the Applicant and asserts that it defers to the expertise of DOT on this issue. The fact is that DOT has approved the intersection and the Intervener has offered no proof for asserting this issue.

Ruling 8H: The Intervener has failed in their offer of proof to raise a substantive and significant issue show that the DEIS was deficient regarding the issue of the safety of the intersection between the mine access road and Route 149. This issue will not be adjudicated.

2. Increased Truck Traffic. Next, the Intervener asserts that the increased traffic on Route 149 and the higher percentage of trucks will contribute to a change in community character from that of a rural, agricultural community to that of a noisy, industrial use. Both DEC Staff and the Applicant dispute the need to adjudicate this issue. The Applicant counters that there are very few houses (the Applicant estimates less than 10) in the proximity of the mine on Route 149 and that the trucks will quickly disperse on to other roads after they leave the site of the proposed mine. DEC Staff concurs with the Applicant that there is no issue to adjudicate regarding the increased truck traffic.

Ruling 8I: There is no dispute of fact regarding the increased number of trucks on the roads around the proposed mine. These potential impacts will be considered by the Commissioner in determining whether to issue the permits sought.

3. Visual Impacts of More Trucks. The Intervener asserts that the sight of increased truck traffic will adversely impact the community character. DEC and the Applicant dispute this and argue this issue need not be adjudicated. The Applicant points out that there are already trucks on the road and reiterates its arguments made above regarding how few homes will be affected. DEC Staff concurs that there will be a visual impact from the increased truck traffic, however, no factual dispute arises.

Ruling 8J: These potential impacts will be considered by the Commissioner in determining whether to issue the permits sought.

4. Fog and Stopping Sight Distances. The last issue regarding traffic raised by the Intervener is that the DEIS did not adequately address stopping sight distances for trucks, especially considering the fog in the area of the mine and the danger this poses to children on school buses. The Intervener presents no proof for this assertion. The Applicant counters that questions of highway safety are under the purview of DOT and that DOT has the responsibility to ensure the safety of the roads by adjusting speed limits, placing signs about the location of school bus stops, and establishing appropriate standards for road construction. The Applicant argues that this issue raised by the Intervener is essentially a policy issue, since it has complied with all relevant requirements regarding stopping sight distances. DEC Staff concurs with the Applicant.

Ruling 8K: The Intervener has failed in its offer of proof to raise a substantive and significant issue or show that the DEIS was deficient regarding the issue of stopping sight distances. This issue will not be adjudicated.

Other Community Impacts on Community Character

In its petition, the Intervener raises three other adverse impacts on community character: 1) that there is no requirement for a fence around the mine, 2) that blasting will diminish the rural character of the community, and 3) that the DEIS fails to consider alternatives that could possible mitigate the impacts to community character. Both DEC Staff and the Applicant dispute the Intervener's assertion that these issues should be adjudicated.

1. Fencing. The Intervener asserts that the failure to include a permit condition requiring the Applicant to put a fence around the mining area will create a hazard for children. The Applicant disputes the need for fencing the site and states that the permit requires posting the property and locking the gate to the access road. The Intervener responds that signs will not be enough to keep children off the mine site and that fences are routinely required for mines. However, the Interveners do present any evidence for either the assertion that children will travel to the mine site, ignore the posted signs and risk arrest or for the assertion that it is typical that most quarries are required to be fenced. Rather the Intervener's argument rests upon broad conclusions without any offer of proof that a fence is needed here or required elsewhere.

Ruling 8L: The Intervener has failed in its offer of proof to raise a substantive and significant issue or to show that the DEIS was deficient regarding the need for a fence around the quarry. This issue will not be adjudicated

2. Blasting. The Intervener asserts that the occasional blasting at the mine will adversely impact the rural character of the community. The Applicant counters that blasting will occur twice a week and that each blast will last less than a second.

Ruling 8M: There is no factual dispute regarding blasting. These potential impacts will be considered by the Commissioner in determining whether to issue the permits sought.

3. Overlooked Mitigation. Finally, the Intervener states that the Applicant has failed to mitigate impacts to community character and proposes additional mitigation including:

  1. truck washing, and enclosing equipment to control off-site dust,
  2. installing sound barriers along the haul road and around the portable crushing plant,
  3. reducing and redesigning lighting,
  4. plantings to reduce visual impacts, noise and dust, and
  5. the institution of a property value protection program.

In response, the Applicant states that it has done everything it believes is possible to mitigate the impacts of the proposed mine on community character. DEC Staff concurs with the Applicant.

Ruling 8N: The Intervener has failed in its offer of proof and has not shown that any of these proposed mitigation measures should be adjudicated.

Impact on Canal Recreationway

The last adverse impact on community character identified by the Intervener is the impact of the proposed mine on the Canal Recreationway. Specifically, the Intervener asserts that the use of lands in proximity to the Canal and lands owned by the Canal Corporation (a subsidiary of the New York State Thruway Authority) is incompatible and will adversely impact the character of the canal. Specifically, the Intervener argues that 6 NYCRR 617.7(c)(1)(iv) requires consideration of a community's plans as officially approved and adopted. Since there is no mention of the Canal Recreationway Plan in the DEIS, the DEIS is defective.

The Applicant responds that the Canal Recreationway Plan does not control land uses along the canal nor does the Thruway Authority or any other body have authority to approve or deny the Applicant's proposed mine. Rather, the Canal Recreationway Plan is a statement of principles and goals that can be voluntarily complied with by local governments. The plan itself covers the entire 524 miles of canal system in New York State and suggests a strip park along the entire canal. Finally, the Applicant points to a letter within Appendix XVIII of the DEIS from the New York State Canal Improvement Association, a private historical association, stating that it does not believe that the proposed mine would have an adverse impact on canal-based tourism.

DEC Staff concurs with the Applicant's assessment and adds that DEC Staff has consulted with the New York State Canal Corporation, which believes that the project does not present a problem for the Canal Recreationway.

Ruling 8O: The Canal Receationway Plan is not a community plan as that term is used in 6 NYCRR 617.7. Rather this Plan is a statewide set of guiding principles and there is no requirement that this be addressed in the DEIS.

Intervener's Proposed Issue #9

The ninth issue proposed by the Intervener is:

"whether the SEQRA review of the application has been improperly segmented, requiring the preparation of a supplemental EIS ("SEIS") to rectify this issue".

The Intervener contends that the project has been improperly segmented because the DEIS does not consider the environmental impacts of the possibility that the entire site may be mined at some future date. The Intervener asserts that the failure to either irrevocably bind the Applicant to not developing the 1,100 acre buffer area or evaluate the environmental impact of mining the entire 1,300 acre site creates a defect under SEQRA requiring the preparation of an SEIS. Both DEC Staff and the Applicant contend that no improper segmentation has occurred and that an SEIS is not required. Further, the Applicant asserts that since it has no plans to develop the remaining 1,100 acres and plans to keep this area as an undeveloped buffer and has stated so in the DEIS, the Intervener's assertions are mere speculation.

To support its argument, the Intervener states that DEC's "life-of-mine policy requires that the entire potential mine be considered at the outset of the application process" (petition, p. 74). This is not correct, the current DEC policy document is entitled "Mined Land Reclamation Permits ­ Life of Mine Reviews"(1) and it states "new applications and associated SEQRA documents must show the total area to be mined and the length of time to exhaust the minerals to be excavated from that area" (p. 2). The policy clearly states that the SEQRA review of proposed mines should be limited to the area to be mined and not include the hypothetical mining of all contiguous lands owned by the applicant.

This is entirely consistent with Article 8 of the ECL ("SEQRA"), its implementing regulations and case law interpreting SEQRA. The action in this case is the development and operation of an approximately 200 acre mine. Segmentation is defined the "division of the environmental review of an action, such that various activities or states are addressed ... as though they were independent, unrelated activities, needing individual determinations of significance" (6 NYCRR 617.2(ag)). In this case, there is no division of the environmental review of the impacts of the mine. The possibility that the mine may be expanded is too speculative at this point and DEC, as lead agency, must review the proposal before it. There is nothing in the record to indicate that the Applicant is in anyway planning to expand the proposed mine. In addition, should the Applicant seek at some point to expand this mine, this is almost certain to trigger a new SEQRA review and EIS (see "Life of Mine Reviews" and 6 NYCRR 621.13(e)).

The Commissioner has ruled that where an Applicant has no plans to mine areas adjacent to proposed mines, it is too speculative to require the DEIS to be amended or an SEIS be prepared. "To do so would result in engaging in a very hypothetical analysis of potential future actions and would not substantially aid the decision-making on the project currently before the Department" (In the Matter of the Application of Dutchess Quarry & Supply Co., Inc., Interim Decision of the Commissioner, August 13, 1992).

Intervener's reliance on Scenic Hudson, Inc. v. Town of Fishkill (258 A.D.2d 654 (2d Dept. 1999)) and Syracuse Aggregate v. Weise, 72 A.D.2d 254 (4th Dept. 1980), aff'd, 51 N.Y.2d 278 (1980) is misplaced. In the first case, the court struck a rezoning action that allowed mining because the Town Board failed to consider the environmental effects of allowing mining before the rezoning was adopted. The second case involves the proposed expansion of a mine, which was a non-conforming use under the local zoning law. Neither case is on point or relevant in this discussion. The review of the action proposed in this case, the development of a 200 acre mine, has not been divided or segmented. It has been reviewed in its entirety, as required by SEQRA.

RULING #9: The SEQRA review of this application has not been improperly segmented and no SEIS is needed.

Intervener's Proposed Issue #10

The tenth issue proposed by the intervener is:

"whether the preparation of an SEIS is required to remedy the severe deficiencies in the Draft EIS".

The deficiencies cited by the Intervener include all nine issues addressed above. In addition, the Intervener asserts that there has been newly discovered information and/or a change in circumstance related to the project and that an SEIS is required by both the regulations (6 NYCRR 617.9(a)(7) and by case law (Webster Associates v. Town of Webster, 59 N.Y.2d 220 (1983)). Specifically, the Intervener believes that the water budget, which was presented at the issues conference, and the disclosure of the newly discovered Wetland J constitute new information requiring an SEIS.

Both the Applicant and DEC Staff do not believe that an SEIS is required. I concur. An SEIS is required when potentially significant environmental effects of an action were omitted from an earlier DEIS. This is not the case here. There have been no significant changes proposed for the project, there is no newly discovered information, nor is there a change in circumstance related to the project. The water budget is merely a refinement of information already available. The discovery of a new small wetland, within the large wetland complex on the site, again only refines and more clearly specifies the impacts of the project. Neither the water budget nor the existence of Wetland J present new, unidentified environmental impacts not dealt with in DEIS. Rather this is information that is developed during the SEQRA process and will be included in the FEIS.

Ruling #10: No SEIS is required

Intervener's Proposed Issue #11

The eleventh issue raised by the intervener is:

"whether the hearing should be adjourned until the numerous defects in the process and in the substantive MLRL, SEQRA, wetlands and historical reviews to date can be remedied".

The defects cited include all ten issues addressed above. The Intervener asserts that failure to adjourn the hearing when the project may change is justified (Matter of Xanadu Properties Associates, Interim Decision of the Commissioner, October 15, 1990) because to proceed would be inefficient and contrary to DEC's policy of providing an efficient hearing process (see, introduction to 6 NYCRR Part 624).

Both the Applicant and DEC Staff oppose delaying the hearing. I also see no reason for a delay while the freshwater wetlands permit for the access road is being processed. Other issues can be adjudicated while this application is pending.

Ruling #11: There is no reason to delay the adjudicatory hearing.

Mr. Kokurewicz' Petition: Issue #12

In addition to the petition by HOME, a petition for amicus status was received from Jerzy M. Kokurewicz of Shutesbury, Massachusetts. Mr. Kokurewicz states that he represents a group he formed called "The Friends of the Mohican People Ad Hoc Committee for the Preservation of the Smiths Basin NY Prehistoric Quarry and Native Burial Sites" ("Friends") which includes members from Canada, Japan, Massachusetts and South Dakota.

The Friends are interested in two issues: the possible disturbance of artifacts and the loss of associated cultural information related to the early Mohican people's occupation of the area before European settlement; and, the potential desecration of Native American burial sites.

To support their claim that the site contains important artifacts and burials, the Friends rely on information by and about Charles A. Wright, a former owner of a portion of the property now owned by the Applicant and slated to be affected by the proposed mine. Specifically, Friends have provided five documents: 1) an undated, unattributed, photocopy of a newspaper article about the Wright Farm (from the 1950s?); 2) a two page photocopy of an article written by Charles Wright in 1959; 3) a photocopy of the obituary of Mr. Wright from the May 15, 1971 Glens Falls Post Star; 4) a one page photocopy of an undated, unattributed newspaper article; and, 5) a two page photocopy of handwritten notes, apparently written by Mr. Wright.

The first document states that Mr. Wright had found six skeletons of Native Americans while plowing his corn fields which were then housed in the State Education Museum in Albany. Mr. Wright is also quoted as saying that "there are innumerable graves situated throughout the property that have yet to be opened." The article goes on to describe a modern (1950s) farm operation with a 40 foot concrete silo and several barns near where the graves were found. The article concludes with reference to flint rock on the property where a tomahawk and flint chips were discovered.

The second document, apparently authored by Mr. Wright in June 1959, is entitled "America's Great Warpath". It surmises that the Wright farms was located along a natural path between Lake Champlain and the Hudson River over which many historic journeys were taken. It reports that in approximately 1920, Mr. Wright found a button apparently from a British uniform dating back to the eighteen century was found on the northerly part of the farm. Most importantly for this matter, Mr. Wright writes "north of the barn on the Wright farm, on a knoll, is an old Indian burial ground. A number of skeletons have been dug up here together with numerous arrows and stone implements." Mr. Wright goes on to state that after 1866 "the Delaware and Hudson Railroad laid their line through the farm and it was during the excavation for this project that many Indian Relics were unearthed and have since been presented to the State Museum at Albany."

The third document provided, Mr. Wright's 1971 obituary contains no information relevant to this inquiry.

The fourth document is an undated newspaper article recounting a speech given by Mr. Wright to the Hudson Falls Rotary Club. During this speech Mr. Wright tells of seeing six graves opened on his farm. "Five of the graves were opened when the double track (railroad) was laid. The bones from those graves are in the state museum at Albany. They were mostly Indian judging from the Indian implements buried with them. The sixth grave was thought to be one with more than one body."

The fifth and final document provided by Friends is two pages of handwritten notes, apparently penned by Mr. Wright. These notes recount a bus tour of the areas given by Mr. Wright to local school children. Mr. Wright mentions the Indian burial. "In 1894, when the double track was built, earth for the fill was obtained from this farm and a part of this burial ground dug up. I saw five bodies dug up and helped bag the bones which shipped to the Albany Museum. These were Indians we think as they had Indian artifacts in the graves where my son was scraping off the top of the knoll we uncovered another grave. We think it was a white man as we found an English coin in it with the date of 1736 on it." Later, Mr. Wright continues "there has been more Indian artifacts found near Smiths Basin than place I know of, particularly on the Wright Farm."

DEC Staff opposes Mr. Kokurewicz' petition on the grounds that the Friends have not met the qualifications for amicus status pursuant to 6 NYCRR 624. Regarding the graves, DEC Staff includes one sentence: "The alleged graves referred to by the Petitioner are apparently not in the affected area." DEC Staff offers no explanation of this statement.

The Applicant also opposes Mr. Kokurewicz' petition on the grounds that he has failed to meet the qualifications for amicus status. The Applicant also states that there is no evidence of graves on the rocky outcrop that comprises the area to be excavated or in the proposed path of the access road.

HOME supports Mr. Kokurewicz' petition and believes he has met the regulatory standard for amicus status. HOME does not specifically address the location of the graves with respect to the proposed mine site and access road.

A grant of amicus status can only be based upon a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing. 6 NYCRR 624.5(d)(2)(ii). Mr. Kokurewicz has not done this and therefore his petition is denied.

Mr. Kokurewicz has presented evidence that over one hundred years ago, six graves were discovered on a farm owned by Charles Wright during the construction of the rail line. There is nothing in the record identifying where the Wright farm is or was or where on the farm the graves were found nor is there anything connecting the location of the Wright farm to the location of the proposed mine. Maps of the area do show a rail line (which may be the one described by Mr. Wright), but this line is on the other side of the Champlain Canal from the site of the proposed mine. It seems extremely unlikely that during construction of the rail line when fill was needed, that the railroad engineers would take fill from the opposite side of the canal. While the record is not at all clear on this point, it appears to me that the area where the graves were discovered in 1894 is not the same area to be disturbed by the proposed mine. Therefore, based on the evidence in the record, there is no reason at this point to explore the issue of Native American graves at the site. Mr. Kokurewicz' concern regarding Indian artifacts is dealt with in Issue #4, above.

RULING #12: Mr. Kokurewicz' petition for amicus status is denied.

Rulings on Party Status

The Applicant and DEC Staff are parties to the hearing pursuant to 6 NYCRR 624.5(a).

HOME is also granted party status. HOME filed a petition as required in 6 NYCRR 624.5(b), demonstrated an adequate environmental interest in the project, and (as discussed above) have raised a number of substantive and significant issues for adjudication.

Mr. Jerzy Kokurewicz is not granted amicus status.

Appeals

Pursuant to 6 NYCRR 624.6(e) and (g), and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.

Any appeals must be received at the office of the Commissioner no later than October 22, 2001, at the following address: Commissioner Erin M. Crotty, NYS Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1010. Any responses to such appeals would need to be received by November 5, 2001, at the same address. The parties are to transmit copies of any appeals and replies to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner.

Any request for an adjustment to the appeal schedule must be made to the Chief ALJ, at the Office of Hearings and Mediation Services address.

_____________/s/_____________
P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
October 1, 2001

1 Issued July 23, 1987.

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