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Kula, Steven J. - Issues Ruling, June 8, 1995

Issues Ruling, June 8, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of Steven J. Kula for a Mined Land Reclamation Permit

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

RULINGS ON ISSUES
AND PARTY STATUS

June 8, 1995

This hearing involves an application by Steven J. Kula (the "Applicant") to the New York State Department of Environmental Conservation (the "Department") for modification of an existing Mined Land Reclamation Permit. This is a permit under Environmental Conservation Law ("ECL") Article 23, Title 27 (the Mined Land Reclamation Law) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420 through 426. The project is also subject to the General Permits for storm water discharges under the State Pollutant Discharge Elimination System ("SPDES", ECL Article 17, Title 8).

The application is for expansion of an existing sand and gravel mine located in the Town of Naples, Ontario County. The expansion would add 31.8 acres to the presently permitted 10.2 acre mine, for a total area of 42 acres. The Applicant would also add a gravel washing process which would use water from a well on the site and which would involve the addition of ponds on the site.

The Applicant submitted an application in January, 1994 and the Department issued a negative declaration under the State Environmental Quality Review Act ("SEQRA", ECL Article 8), finding that the project would not have significant environmental impacts and consequently no Environmental Impact Statement ("EIS") was necessary.

Following comments from the Town of Naples and local residents, the Department rescinded the negative declaration on August 16, 1994 and issued a positive declaration. This required that the Applicant prepare an EIS for the project. The Applicant submitted a Draft Environmental Impact Statement ("DEIS") in late 1994. On December 6, 1994 the Department issued a notice of complete application for the project. The Department is the lead agency for review of the project under SEQRA.

A hearing for public comment on the application for the proposed permit modification and on the DEIS was held on the evening of April 10, 1995 at the Naples High School. On April 11, 1995 an issues conference took place for discussion of what issues might require adjudication and which entities would participate as parties in an adjudicatory hearing on the application. Additional written arguments and documents were submitted following the issues conference.

Party Status

Pursuant to the Department's permit hearing procedures (6 NYCRR Part 624, specifically 624.5(a)), the Applicant and the Department are parties to the hearing.

The Town of Naples (the "Town") was the only entity that requested party status. The Town submitted a petition for party status identifying proposed issues for adjudication and partially identifying the witnesses it would call. As discussed below in the "Issues" section of these rulings, the Town has raised issues for adjudication. The Town is the municipality in which the project is located and the Town has an environmental interest in a project which could have adverse impacts on the environment in the Town of Naples.

The Town is granted full party status to participate in the adjudicatory hearing.

Issues

Setback

The expansion of the mine would include mining farther towardsthe north and west boundaries of the site. This would ultimately leave a slope extending from the mine floor to the top of theslope. The top of the slope (the outer edge of the excavation) would be 25 feet from the boundary of the site.

In a letter dated July 12, 1994, the Town notified the Department that the Town's zoning law would require a minimum setback of 100 feet The July 12, 1994 letter also contained a mention of a Department guideline regarding setbacks, which the Town interpreted as requiring a 300 foot setback. This appears to be a reference to the requirement in 6 NYCRR Section 422.2(c)(3)(iii) regarding the distance between the property line and the perimeter of the mine floor. This requirement would not necessitate a 300 foot setback between the property line and the top of the slope.. Under ECL Section 23-2711.3(a), setbacks from property boundaries are specifically listed as one of the subjects on which the chief administrative officer of the local government may make a determination and notify the Department of this determination. ECL Section 23-2711.3(b) provides that if the Department finds that the determinations made by the local government are reasonable and necessary, the Department shall incorporate these into the permit, if one is issued. Alternatively, the Department would need to provide a written statement to the local government and the applicant as to the reasons why any of the local government's determinations were not incorporated.

The Town's recommendation regarding the setback has not been incorporated into the draft permit but there is no indication that the Department Staff provided a written statement as to why this was not being incorporated. It is unclear whether the Department Staff has fully reviewed the Town's comments and whether the Town had provided a sufficiently clear justification for its position. There appears to be a need for additional interaction among the parties regarding the substance of the Town's recommendation. This further discussion should also include the related questions of the steepness and benching of the mine slopes.

The Department Staff will need to provide for the record a written determination as to whether the Town's determination regarding the setback distance is reasonable and necessary and should be incorporated into the permit and, if not, the reasons why the Department Staff believes the Town's determination is not justifiable (ECL 23-2711.3(b)).

The 1991 amendment of the Mined Land Reclamation Law changed the roles of the state and local governments with regard to mining. The Mined Land Reclamation Law supersedes local laws related to the extractive mining industry, but it does allow local governments certain authority as described in ECL Section 23-2703.2 and establishes a procedure for local input to the Department's permit process. The Town of Naples amended its zoning ordinance in 1992 in response to the amendment of the Mined Land Reclamation Law (Zoning Law of the Town of Naples Amendment No. 1, 1992), and included a provision for recommending that excavation operations occur not less than 100 feet from any property line.

In the present case, the question of the setback between the edge of the excavation and the boundary is also related to the question of the steepness of the slope (discussed in the next section of these rulings), erosion control, and noise impacts. The 100 foot setback might be reasonable and necessary, and the 25 foot setback in 6 NYCRR Section 422.2(c)(3) does not preclude consideration of the Town's determination.

The setback distance between the property boundary and the excavation is an issue for adjudication.

Slope Steepness

The steepness of the slope on the north and west sides of the mine, and the number of benches in the slope, are not subjects on which the Town may make a determination under ECL 23-2711.3(a) but they are subjects which the Town may propose as an issue based on the standards for the required permits (mined land reclamation and the SPDES General Permits for stormwater) and/or the State Environmental Quality Review Act.

The proposed expansion of the mine would eventually result in a 2:1 slope on the north and west sides of the excavation. While this is less steep than the 1.5:1 slope (or one vertical on one and on-half horizontal) which the Department's regulations establish as the maximum steepness of reclaimed slopes on coarse sand and gravel (see 422.3(d)(2)(v)(b)), the Town and its consultant have questioned having a slope of this steepness that would extend over a change of elevation of up to 190 feet between the mine floor and the edge of the excavation with only one bench in the slope. The Town's consultant recommended placing a 10 foot bench every 25 vertical feet in order to enhance the stability of the slope and to provide more opportunity for vegetative screening as the mine is reclaimed (letters dated July 28, 1994 and April 10, 1995). The background information which the Department Staff provided to the Office of Hearings with the hearing referral also contains a July 18, 1994 memo from Douglas Gillette (Division of Water) to John Cole (Division of Regulatory Affairs) in which Mr. Gillette recommended that three benches be established at 50 foot intervals starting at the top of the pit and that these meet certain erosion control guidelines.

The steepness and benching of the mine are an issue which will be adjudicated in the hearing.

As discussed in the section of these rulings regarding proposed issues which will not be adjudicated, topographic limitations on development of the site after mining and any related property value or tax base impacts will not be adjudicated and are not part of this issue. In addition to the limitation on review of such issues generally, in the present case much of the proposed mine area is currently steep enough to restrict development.

Noise

At the issues conference, there was a discussion among the parties regarding the noise from chain saws at the mine. The parties agreed on an additional permit condition which would restrict operation of chain saws to weekdays between 10:00 A.M. and 3:00 P.M.

With regard to the noise issue as it relates to the Applicant's day-to-day mining operations, the comments from the Town's consultants demonstrate a number of omissions from the DEIS's noise study which raise an issue regarding noise and noise mitigation. Although the Department's mining regulations contain no numerical standard for noise levels, they do require noise control by means of mufflers or screening. In addition, SEQRA requires an evaluation of impacts including noise, and requires that adverse environmental impacts be avoided or mitigated to the maximum extent practicable.

There needs to be additional evaluation of the noise impacts which can be expected during use of the expanded mine, for a number of reasons. The equipment which was operating during the tests described in the DEIS, to the extent that this equipment was identified, does not appear to correspond to the equipment which will actually be operating. The early phases of the expansion will involve use of earthmoving equipment at locations where no equipment was operating during the test, which locations are closer to the site boundary than are the present mining activities. The noise study does not take into account the degree of screening (by such things as berms, trees or the land contours) that would exist between the noise sources and the receptors when the noise sources are at other than their present locations. There is also a disparity between the use of average noise measurements and the equivalent steady state sound levels with which they were compared.

The record as it exists at present does not demonstrate that there has been sufficient evaluation of the noise impacts nor that the project as proposed includes adequate screening or other mitigation. This will be an issue for adjudication. I am requesting that the parties confer regarding potential mitigation measures and what noise sources, receptors and phases of mining should be taken into account in expanding the evaluation of noise.

Stormwater Runoff

The stormwater runoff from the site would be subject to a General Permit under the State Pollutant Discharge Elimination System ("SPDES"). Drainage and water control are also factors which need to be taken into account under the mining regulations (see 6 NYCRR 422.2(c)(4)). In January 1994, Applicant submitted a Notice of Intent for storm water discharges associated with industrial activity under the SPDES general permit. The Applicant also submitted a storm water discharge plan, which is part of the July 2, 1994 Addendum Number Four in the DEIS, and the revised pond designs which are Appendix 2 of the DEIS.

The DEIS (particularly p. 19 and 20) and the background information which Region 8 transmitted to the Office of Hearings with the hearing referral contain information which indicates that the Applicant's proposals for managing storm water have changed in a number of respects from the July 2, 1994 storm water discharge plans, possibly in response to some of the comments which were contained in Mr. Gillette's memo of July 18, 1994 and/or other input from the Department or other agencies. I do not know whether the Applicant or the Town have received Mr. Gillette's memo. Since it was sent to me with the hearing referral, I am sending a copy to the Applicant and to the Town with the present rulings.

The storm water discharge plan which is included in the DEIS does not appear to reflect the Applicant's current proposal, and the description of the revised system in the overall mining application is unclear. The plan includes a grassed waterway which apparently has been omitted (see DEIS p. 18). It is also unclear which of the sediment basin and pond designs are included in the current proposal. Page 19 of the DEIS indicates that the revised version of the sediment basin (3427 cu. yd. in capacity) has replaced the emergency sediment basin that was described in the plan, but the Applicant's current intentions with regard to other ponds or basins are unclear (for example, the second sediment basin and small sediment traps referred to on DEIS p. 19; the existing sediment pond and ponds number one and two referred to in Appendix 1, the mining and reclamation plan at the fourth page of the mining plan narrative; and the temporary sediment basin and pond No. 1 in the revised pond designs).

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 me. Following submission of the updated plan, there will be an opportunity for comments from the parties regarding the sufficiency of the plan. At present, this is reserved as a potential issue.

Visual Impact/Revegetation

The issue of the mine slopes relates to visual impacts. In addition, the Applicant proposes to revegetate reclaimed areas with grass and legumes but not to plant any trees or shrubs. A significant portion of the mine expansion area is presently vegetated with trees. The DEIS (at page 7) briefly states that planting trees and shrubs would be minimally effective for screening visual and noise impacts because of the time required for such screening to become effective. The DEIS also, however, mentions restoring some native vegetation to restore the appearance of the reclaimed land (p. 23) and a recommendation by a Department biologist for additional plantings to restore wildlife habitat (p. 22).

Taking into account the importance of scenic resources in the Town of Naples (as cited in the Town's 1987 Master Plan Draft) and the mining regulation's identification of shrubs and trees as a mitigation measure (6 NYCRR 422.2(c)(4)(iii) and 422.3(d)(2)(vi)), mitigation of visual impacts through additional vegetation will be an issue in the hearing. Adjudication of this issue is also necessary as part of the Department's review of the project under SEQRA, in order to be able to make the findings required by 6 NYCRR Section 617.9.

Mr. Bauter's January 30, 1995 letter stated that the Applicant is open to discussion regarding screen plantings. I encourage the parties to confer regarding settlement of this issue.

Proposed issues that will not be adjudicated

Impact on property values: The Town proposed that the effect of visual impacts on property values be included as part of the visual impact issue. The Town also proposed that the hearing include an issue regarding negative impacts on the assessment of the site for property tax purposes after reclamation, due to the steepness of the reclaimed mine area. The Town proposed to call a real estate appraiser to testify on this subject.

As discussed above, visual impacts and revegetation will be an issue for adjudication, as will the steepness of the reclaimed site. Effects on property values or tax assessment of the site will not be adjudicated, however, since this is a subject which prior Interim Decisions of the Commissioner have excluded from the review of other mining projects.

The Interim Decision In the Matter of Red Wing Properties, Inc. (January 20, 1989) stated reasons why potential reduction in property values caused by a mining operation would not be adjudicated in a DEC hearing on a mining permit application. A subsequent Interim Decision (In the Matter of Kearney Gravel Company, September 28, 1992) summarized this as follows: "Where potential property value changes are attributable to factors which cannot be addressed by established environmental mitigation techniques, any decision to further restrict the activity that may be the cause of such decline is a local one and should be exercised by the local jurisdiction rather than the Department" (citing the Red Wing Interim Decision). The Red Wing Interim Decision was also cited in excluding a proposed issue of adverse impacts on the tax base in the Interim Decision In the Matter of Seaboard Contracting and Material, Inc. (June 5, 1990).

Although the Mined Land Reclamation Law has been amended with regard to local governments and mining since the date of the Red Wing Interim Decision, local governments retain authority to enact or enforce local zoning ordinances which determine permissible uses in zoning districts (ECL Section 23-2703.2). The Kearney Gravel Company Interim Decision was issued after the effective date of the 1991 amendment of the Mined Land Reclamation Law.

The Town imposed a six-month moratorium on new or expanded mining operations in the Town of Naples (Local Law No. 1 of 1994). This moratorium expires on or about July 3, 1995. The Town has taken the position that the moratorium prohibits the proposed expansion. It is unknown at present how the Town's laws and zoning will affect mining after the moratorium expires.

It is likely that the hearing would not take place until after July 3, 1995. The effect of any prohibition on new or expanded mining which may exist at the time when the hearing record closes may be argued in the closing briefs, but there is no factual issue to adjudicate.

Groundwater and nearby wells: The Town proposed as an issue the effect of the wash plant operation on the aquifer in the site area. This issue has to do with whether the well which will maintain the water supply for the wash plant will adversely affect the wells at two neighboring properties and whether the Applicant has conducted sufficient tests to answer this question. The Town stated that in addition to the December, 1993 pumping test of the mine's well, there should be a test during the summer when groundwater levels would be lower.

The December, 1993 pumping test showed very little effect on the gravel aquifer in which the mine's well is located and also showed that the groundwater returned to its original level very rapidly after pumping stopped. It is uncertain what connection, if any, exists between the aquifers in which the mine's well and the wells at the Murray and Braun properties are located. On August 2, 1994, the Town transmitted to the Department a recommendation that the groundwater elevations also be monitored in the summer months. No additional testing or monitoring of the groundwater was done by the Applicant.

Based on the correspondence in the record at present and the discussion at the issues conference, it appears unlikely that the mine's well would adversely affect the residential wells. At the same time, the relationship among the various aquifers in which these wells are located is unclear. The provisions related to this subject which were discussed at the issues conference should be added as conditions of the permit, if one is issued. In addition, the condition regarding responses to problems at the nearby wells should provide for the Applicant to supply water to the owners of the other wells under certain circumstances. Such a provision has been used by the Department in the past, in situations similar to the present one (see, for example, In the Matter of Empire Bricks, Inc., Interim Decision dated August 1, 1990).

These conditions would be as follows:

  1. a requirement that the Applicant conduct a test similar to the December 1993 test during the summer, at a time to be specified by the Department Staff, and include a report of this test in the annual report required by Special Condition No. 7 of the draft permit; and
  2. a requirement that the Applicant either refrain from pumping or supply potable water to the owners of the adjacent wells whenever the quantity of water in the wells of such landowners is insufficient, unless and until the Applicant can demonstrate to the satisfaction of the Department that his use of the well at the mine is not a contributing cause to the problem with the other well or wells.

With the addition of these conditions, there is no issue for adjudication regarding groundwater and effects of the mine on wells.

The Applicant will need to provide confirmation regarding one item of information that appears in the DEIS's discussion of this subject. The DEIS, at page 20, reports that the Murray's well has a capacity of 1 gph. This abbreviation would indicate one gallon per hour. The Applicant is to provide confirmation for the record of whether this reported rate is correct, and if not, to identify the correct rate. Please send a copy of the letter regarding this to the Murrays, as well as to the persons on the service list.

Width of haulageway, highway exit and traffic: The Town stated that although there is a 12 foot wide right-of-way for mine access across a neighbors land, the prior mining permit required a 20 feet wide haulageway. The Department Staff stated that the haulageway was modified as part of the review of the Applicant's existing permit and that a 20 foot wide haulageway is no longer required. The current permit includes a 12 foot wide haulageway with a wider segment at the exit onto County Road 36.

The haulage road which enters County Road 36 was approved as part of an earlier permit review, including approval by the appropriate Ontario County highway agency. The permit modification which is the subject of the hearing would not change the traffic into and out of the site in comparison with what occurs under the present permit. Although different products would be produced if the gravel washing operation is added, the total quantity of minerals which would be produced would not change if the modification is granted The permitted quantity of minerals to be mined per year (100,000 cubic yards) should be specified in the text of the draft permit, rather than only by reference to the documents listed in Special Condition No. 1, since there was an erroneous number for this in the mining plan narrative which was corrected in Addendum No. 4.. In addition, although a larger total acreage would be affected during the life of the mine, this would extend the duration of mining rather than increasing the rate of mining.

Thus, the proposed issues regarding the width of the haulageway, the exit to the highway and traffic will not be adjudicated in the present hearing on modification of the permit.

Statements at the legislative hearing and the issues conference and in the subsequent correspondence indicate that there are still disputes regarding ownership of the land on which the access haulageway is located. Disputes regarding ownership of this land, to the extent that these have not already been decided by court decisions, must be brought to an appropriate court rather than an administrative hearing of the Department of Environmental Conservation.

Dam safety permit: While not specifically proposed as an issue, this subject was discussed at the issues conference in the context of runoff management. It also relates to the comments in the April 10, 1995 letter from the Town's consultant recommending that the stormwater control design be prepared by a professional engineer.

The Department Staff has stated that no dam safety permit is necessary for this project and that as long as the dam is built as proposed by the project plans, it is unlikely to fail. The record of this proceeding does not contain information which calls this into question.

Appeals

Pursuant to 6 NYCRR Subdivisions 624.6(e) 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 June 23, 1995, at the following address: Commissioner Michael D. Zagata, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1010. Any responses to such appeals would need to be received by June 30, 1995, 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.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
June 8, 1995

To:

Lisa P. Schwartz, Esq.

Richard S. Mayberry, Esq.

Edward J. Brockman, Esq.

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