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Kula, Steven J. - Interim Decision, August 11, 1995

Interim Decision, August 11, 1995

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

In the Matter

- of the -

Application of STEVEN J. KULA for expansion of an existing sand and gravel mine in
the Town of Naples, Ontario County, pursuant to Environmental Conservation Law Article 23.

DEC Project No. 8-3238-12/1-0

INTERIM DECISION

August 11, 1995

Interim Decision of the Commissioner

This Interim Decision relates to appeals by Steven J. Kula (the "Applicant") and Department Staff of a June 8, 1995 issues ruling of Administrative Law Judge ("ALJ") Susan J. DuBois.

The Department is lead agency for the State Environmental Quality Review Act ("SEQRA"). The Notice of Complete application was issued on December 6, 1994. A public legislative hearing was held on April 10, 1994, followed by a pre-adjudicatory hearing issues conference on April 11, 1994.

The Applicant and Staff appeal the ALJ's ruling finding adjudicable issues respecting: setbacks; slope steepness; noise; stormwater runoff and; visual impacts. The intervening Town of Naples (the "Town") has not appealed any portion of the ruling.

The Standard

In situations where the Department Staff has reviewed an application and finds that an applicant's project meets regulatory conformity as proposed or as conditioned by the draft permit, the burden of persuasion is on the potential party proposing to contradict the information offered by the applicant. 6 NYCRR 624.4(c)(4).

To raise an issue for adjudication the potential party must make an offer of proof to support the issue to be adjudicated. An adjudicable issue will be found to exist only where there are sufficient doubts about the applicant's ability to meet all statutory and regulatory criteria such that reasonable minds would inquire further, In the Matter of Hydra-Co. Generations Inc., (Interim Decision of the Commissioner, April 1, 1988). Adjudicable issues are only those issues which have the potential to result in denial of a permit, a major modification of the project or imposition of significant permit conditions. 6 NYCRR 624.4(c)(3)).

Where the Department is lead agency under SEQRA it may adjudicate issues concerning the sufficiency of the DEIS if those issues are substantive and significant. 6 NYCRR 624.4(c)(6)(b)). Under SEQRA the Department must also be able to find, with regard to identified adverse impacts, that the project, as permitted, avoids or reduces them to the maximum extent practicable. 6 NYCRR 617.9.

The Project

The Applicant seeks expansion of an existing sand and gravel mine in the Town of Naples, Ontario County. The expansion is from 10.2 acres to a total mine site of 42 acres, to be accomplished in 27 stages or phases over twenty years on the 81 acre property. Annual production of sand and gravel is estimated to be 100,000 cubic yards.

The adjacent lands include a vineyard bordering the northeast corner, woodland on the north, another vineyard on the northwest corner, woodland on the west side, brushland to the south, and brushland and woodland on the east. The nearest resident is 450 feet from the north boundary of the mine site. The next nearest residence is 475 feet to the northeast. The Grape Country Estates senior citizens mobile home park is located at the base of the proposed mine area on the south.

The existing mining operation consists of sand and gravel extractive equipment, trucks to haul the aggregate, a screen and a crusher plant. No significant new equipment will be used in processing materials that were not used previously. The only exception is a water sprayer attachment fixed to a crusher to wash the aggregate. The recirculating water capacity of the washing operation will be 144,000 gallons per day. Two recirculation ponds will collect and recharge water and will serve as sediment control structures as well.

The mine expansion will be a widened pit excavation which will proceed in 40 feet lifts downward to the final mine floor over the next twenty years. Except for the proposed expansion area, the operation will mirror the existing mine operation. Expansion will necessarily remove the vegetation and trees covering the hillside and which area will be reclaimed and revegetated. All operations will be conducted Monday through Friday from 7 am to 6 pm and on Saturday from 8 am to 3 pm., excluding legal holidays.

The Town allows mining pursuant to a special use permit at the subject location. Although the Town instituted a moratorium on mining in December 1994, in June 1995 it did not extend the moratorium nor did it enact any changes in the existing zoning ordinance to restrict mining in the Town. The allowance of the mine through a special use permit is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan. It is against this background that the Town raises its concerns.

ECL 23-2711

ECL 23-2711 provides that the chief administrative officer of the local government may make a determination to the Department Staff as to whether certain aspects of the mining operation are reasonable and necessary. ECL 23-2711.3(b). These determinations regard setbacks from property lines, barriers restricting access, control of dust, hours of operation, and whether mining is prohibited at the site. Thereafter, the statute provides that the Department Staff will incorporate such determination into the permit except where the Staff may disagree, and then Staff must provide the reasons why the whole or a part of any determination was not incorporated.

The ALJ found that the Staff failed to make a determination regarding setbacks. The Staff's appeal in this matter constitutes its responsive determination regarding setbacks.

Setbacks

The ALJ found that ECL 23-2711.2 might require that the Town's recommendation regarding its proposed setback of 100 feet be incorporated into the permit. The ALJ based this analysis on the fact that the Department had not responded to this request as required by the statute. The ALJ did not find that the regulatory standard of a 25 wide setback was insufficient. Consequently, the ALJ intended to cause greater interaction between the parties to resolve the dispute. Barring closure on that issue between the participants would trigger the setback issue in adjudication.

The Town has not made an adequate offer of proof respecting the reasons why a 100 foot setback should be required over the regulatory standard of 25 feet in 6 NYCRR 422.2(c)(3)(iii). The Town also has not raised any concerns respecting the calculation regarding the 25 foot setback in the regulation. While SEQRA provides the authority that would allow expansion of the setback, there must be an adequate rationale to do so. The Town has made only a general conclusory statement regarding safety and the only support for its position originates in the Town's 1992 zoning ordinance which includes a provision for recommending that excavations occur not less than 100 feet from any property line. The Town did not support its 100 foot setback recommendation with specific supportive technical information which would require adjudicating the issue. Since the project is a permitted use according to the Town's zoning ordinance, and since no substantive and significant information was presented by the Town to cause reasonable minds to inquire further, no issue is raised.

Slope Steepness

The ALJ found slope steepness and benching to be an issue. The mined land use plan specifies a 2:1 finished slope or flatter (well within the 1.5:1 maximum slope required by 6 NYCRR Part 422.3(d)(2)(v)(b) and calls for one bench (none are required by regulation) to be placed mid-way between the mine top and the mine floor. Any slope more restrictive than that specified in the regulations must be considered more environmentally protective.

Slope steepness (and benching) relate directly to soil stability or erosion control. The Town would have a 2:1 slope over a change of elevation of up to 190 feet, and recommends placing a 10 wide foot bench every 25 vertical feet in order to enhance the stability of the slope and to provide more opportunity for vegetative screening. To consider the Town's benching alternative in an adjudicatory hearing under SEQRA authority, the offer of proof must be sufficient to conclude further environmental protection is required. The conclusory statements provided by the Town do not demonstrate the Applicant's proposed slope and its bench requirement would not provide for soil stability or erosion control, only that another alternative is available.

Assuming arguendo, the Town's information is substantive, its significance is not apparent. Erosion conditions at mine sites are frequently resolved by reseeding and grading, as would be the case here if erosion were in fact likely to occur on the indigenous site soils. Militating against erosion is the Applicant's intention to excavate and reclaim relatively small areas of one to two acres at a time and therefore the opportunity for erosion is minimized as well. No issue is raised.

Noise

The ALJ held that the record does not demonstrate that there has been sufficient evaluation of the noise impacts nor that the project as proposed includes adequate noise screening or other mitigation measures. The ALJ explained that additional evaluation of noise impacts was necessary because: (1) the noise analyses is faulty because measurements taken of the equipment do not correspond to the equipment that will be actually operating, (2) that early mining phases will utilize equipment at locations where no equipment was operating during the test and which are closer to the mine boundary and (3) the noise study does not take into account the amount of screening that would exist when equipment is moved from its present location. The ALJ also held that there is a disparity between using average noise measurement and the equivalent steady state sound levels with which they were compared.

The Applicant states that there are no noise complaints from the existing mining operation, that actual existing noise levels were measured, the new operation of the spray washer would not add to the noise levels and all equipment was operating when the noise testing was done by the Applicant's engineers. The Department Staff argue that the DEIS fully explains the acceptability of noise from the site and argues at length citing the transcript and DEIS for support to conclude no issue is raised. The Staff includes in its appeal arithmetic calculations from an environmental text in support of its argument that noise impacts would be acceptable.

Omission of information can raise an issue for adjudication. See, In the Matter of Oneida County Energy Recovery Facility, (Interim Decision, July 27, 1982). The omission of such data however must be such that it can result in permit denial, project modification or imposition of a significant permit condition.

The Town retained the services of Sear-Brown, consulting engineers, who found overall a lack of sufficient information in the DEIS to accurately assess noise impacts at residential receptors. They also raise questions about noise impacts based upon the Applicant's methodology used in its noise analyses. For example, no DEIS information exists evaluating the noise to be expected at the nearest receptor when both the excavating/hauling equipment are in use simultaneously with the crusher, screen and other operational equipment. See, the Town's April 10, 1995 noise analyses. In addition, the DEIS acknowledges significant noise impacts when measured against the noise standards contained in the Department's solid waste regulations. See, DEIS section 4.4(b), Table 4-2 and section 4.4(a). It is reasonable to conclude that conflicting substantive noise issues were raised by the Town.

The significance of these issues would be to modify the proposed expansion and/or install noise mitigative measures should the evidence adduced in adjudication support such a result. The mitigation planned thus far include natural screening, slope distance, mufflers on equipment, and berms but these still result in noise disturbance when compared to the sound level guidance used by the Applicant. Any modification to the Applicant's mined land use plan may decrease the amount of materials available over the life of the mine and this Interim Decision serves notice that such modification might occur depending on the facts. The substantive and significant issue of noise at the property line and adjacent receptors, including noise mitigation and project modification, are certified for hearing.

The noise resulting from chain saws to be used to clear the expanded site has been addressed by a special condition and is not an issue.

Stormwater Runoff

The ALJ ruled that the Applicant will need to prepare a storm water discharge plan which reflects his current proposal, and transmit a copy of this plan to the parties and to her. The parties do not contest this directive. Following submission of the updated plan, there will be an opportunity for evaluation and response by the parties.

I find that this component can be addressed through a special permit condition. The treatment of this concern through a special permit condition as with the erosion matter addressed above, renders stormwater not a substantive and significant issue. However, a revised special permit condition as explained in the Department Staff's appeal regarding the stormwater and erosion control system, can be implemented at the site prior to any mining in the expanded areas added to the mine site pursuant to the modified permit. I direct the Department Staff to impose such permit condition.

Visual Impact/Revegetation

The ALJ found that mitigation of visual impacts through additional vegetation is an issue to be adjudicated based upon her taking into account the importance of scenic resources in the Town's 1987 Master Plan, and through the use of vegetation to mitigate visual impacts pursuant to the regulations. 6 NYCRR 422.2(c)(4)(iii) and 422.3(d)(2)(vi).

The DEIS provides details regarding the revegetating of the site. The DEIS evaluates the site through visual simulations and discusses the visual impacts of the mine. The Town has failed to raise a doubt that would require further inquiry through adjudication. The regulatory criteria address the need for vegetation and the Applicant has agreed to site revegetation with grasses and legumes but not to plant trees and shrubs. The Applicant's rationale for not planting trees and shrubs is that they would be minimally effective for visual screening because of the length of growth time. It appears however that tree plantings and other wildlife beneficial vegetation should be included as a condition of the permit, in accordance with effective use of mined land. If the Applicant contests such permit condition, the ALJ will hear the dispute at hearing. The Town has not presented an offer of proof in the form of a contrary view shed analyses to contradict that which was supplied by the Applicant. Information of that type would be necessary in evaluating visual impacts in an adjudicatory hearing.

It is also reasonable to take into account the Town's own zoning ordinance when evaluating this proposed issue. The ordinance allows mining and the instant moratorium that was previously imposed was lifted. Under these circumstances it is unlikely that the governing body found visual impacts of mining something that could not be controlled through the Department's regulatory scheme. I find no adjudicable issue is raised.

Groundwater and Nearby Wells

The ALJ is concerned about the use of a well on the mine site adversely affecting two adjoining property owners' wells and the impact of the washing operation on groundwater. Although she held that no issue was raised, she recommended two special permit conditions which would require further testing and that the Applicant agree to either refrain from pumping or supply potable water to the owners of the adjacent wells whenever the quantity of water in their wells is insufficient, unless and until the Applicant can demonstrate to the satisfaction of the Department that his use of the well at the mine is not a contributing cause to the problem with the other well or wells.

The Staff appeals the imposition of both permit conditions on the bases of uncontradicted information contained in the DEIS. I concur with the analyses presented in the Staff's appeal.

The residential wells adjacent to the site are located upgradient from the Applicant's on site well and in a different geologic formation. Since these wells are upgradient of the mine well and in a different geologic formation, it is impossible under the conditions presented in the DEIS to have the mine well influence these residential wells.

With respect to the washplant operation adversely affecting these adjacent wells, the largest water draw commences at the start up of operations when the mine well is used to fill the recirculating pond for the washing operation. Thereafter, the mine well will be limited in its use to replenish recirculated wash water lost to evaporation. Consequently, the additional permit conditions are unnecessary to bring the mine operation into environmental compliance.

Miscellaneous

The ALJ's remaining rulings finding no issues on property values, haulageways, traffic, and dam safety were not appealed and therefore they are upheld.

This Interim Decision is remanded to ALJ DuBois to complete the hearing forthwith.

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

_____________/s/_____________
MICHAEL D. ZAGATA, COMMISSIONER

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