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Lane Construction Company - Interim Decision, November 27, 1995

Interim Decision, November 27, 1995

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

In the Matter
- of -
the Application of

LANE CONSTRUCTION COMPANY for a Mined Land Use Permit, and other required permits for operation of a Hard Rock Mine in the Town of Nassau, Rensselaer County, New York

DEC Project No. 4-3830-00046/00001-0

INTERIM DECISION
(On Expedited Appeal)
November 27, 1995

INTERIM DECISION OF THE COMMISSIONER

This is an expedited appeal to the Commissioner pursuant to 6 NYCRR 624.8(d)(2)(v) of the Department's Permit Hearing Rules. Leave to appeal was granted on October 2, 1995. The appellants challenge the propriety of the Department's practice pursuant to Technical Guidance Memorandum MLR 92-2 (the "TGM") under which the Department proceeds to issuance or denial of Mined Land Reclamation permits under Article 23, Title 27 of the Environmental Conservation Law ("ECL") even though a local government disputes a permit applicant's assertion that mining is not prohibited at the location of the proposed mining activity. The TGM further provides that any DEC-issued permit will state that the permittee is not relieved of the need to obtain required local permits and will note that the local government has declared that mining is prohibited at the proposed site. The background of this matter is as follows.

Background

Lane Construction Company ("Lane") has applied to the Department for a mined land reclamation permit to construct and operate a hard rock (aggregate) mine in the Town of Nassau, Rensselaer County. Upon finding that Lane's permit application was complete, the Department published notice of the application and scheduled public hearings pursuant to its Uniform Procedures rules and Permit Hearing Procedures rules (6 NYCRR Parts 621 and 624). At the legislative hearing, vigorous public opposition to Lane's proposal was expressed, including apprehensions over the proposed mine's visual impacts, noise, and effects on the rural character of the area, in addition to other objections.

An issues conference was scheduled before Administrative Law Judges Robert P. O'Connor and Susan Weber ("ALJs") to determine whether substantive and significant issues for adjudication existed, and to rule on applications for party status in the event an adjudicatory hearing is to be held. Applications for party status were received from the Town of Nassau ("Nassau"), the Town of Chatham ("Chatham"), the Nassau Union of Concerned Citizens ("NUCC"), Citizens Against Lane Mine ("CALM"), the Rensselaer County Environmental Council, the Lebanon Valley Central School District, and three pro se individuals. Three days before the issues conference convened, the Towns, NUCC, and CALM ("Movants") moved before the ALJs that Lane's application be remanded to DEC's Staff for further review for a variety of reasons. In addition to objecting to the TGM as discussed below, Movants claimed that the application needed to be supplemented to include air emissions and water discharge permits, and to respond to a request from the Office of Parks, Recreation and Historic Preservation ("OPRHP"). One of the Movants also asked for access to the site to investigate the alleged presence of the timber rattlesnake, a threatened species and to consider related issues. The ALJs on September 21, 1995 ruled on the above issues by directing that an air permit application will be considered at the hearing,An air permit application was filed by Lane after the motion was made, but prior to the ALJs' ruling, which mooted their motion on that point. that a wastewater discharge (SPDES) permit application needed to be filed, that OPRHP's request for information required a response, and that a site investigation for timber rattlesnakes would be allowed.

The Zoning Issue

In addition to the air, water, OPRHP, and threatened species issues mentioned above, Movants requested remand and suspension of the proceedings on the ground that Lane's proposed mining operations are prohibited by the zoning ordinance of the Town of Nassau. The ALJs' September 21, 1995 ruling on this issue, after a thoughtful discussion, denied the motion. In essence, they correctly said that they were constrained to follow the Department's established policy as set forth in TGM 92-2. This provides that the Department will process the MLRL permit application and leave the zoning dispute for later resolution between the Town and the Applicant, and by the Courts if necessary. This expedited appeal was granted, at the Movants' request, to review the basis for the ALJs' denial because the issue deals with a matter of law and Department policy; moreover, any revision of the Department's existing policy of processing MLRL permit applications to completion so long as the applicant claims that mining is not prohibited by local zoning, notwithstanding contrary assertions by the local government, could significantly affect the course of this proceeding. The relief sought by the Movants effectively asks DEC to withdraw the existing policy in the TGM. For the reasons set forth below, I decline to do so. The TGM's policy is lawful, well considered, rational, and in the public interest.

The TGM

Technical Guidance Memorandum 92-2 sets out the procedures used to process mined land reclamation permits under the 1991 amendments to Article 23, Title 27 of the ECL. Under the 1991 amendments, an application for a mining permit, in order to be deemed complete for processing purposes,See Uniform Procedures Act, ECL 70-0105(2) and 70-0109. must contain "a statement by the applicant that mining is not prohibited at that location" (ECL 23-2711(2)(c)). The TGM provides that: "For purposes of determining completeness, the Department will rely exclusively on the applicant's statement concerning prohibition, and will not involve itself in matters of dispute between local government and the applicant" (TGM, A, p. 1). Following a determination of completeness, notice of the application and all documents which comprise the complete application are sent to the local government in which the mine is to be located (ECL 23-2711(3)). The chief administrative officer of the local government (e.g., the Town Supervisor) may respond and notify DEC as to various physical items affecting the proposed project,I.e., setback, barriers to restrict access, dust control, hours of operation. and also as to his or her legal interpretation of "whether zoning is prohibited at that location" (ECL 23-2711(3)(a)(v)).

Under the TGM, the Department is to incorporate the local government's reasonable requests as to setbacks, barriers, operating hours, dust control, and hours of operation or explain why such requirements will not be adopted in the permit. This is consistent with ECL 23-2711(3)(b).

Movants and the ALJs' September 21, 1995 Ruling (at p. 3) suggest that 23-2711(3)(b) also requires DEC to explain why it rejected the Town's assertion that mining is prohibited, and that it has not done so in this case. The TGM fulfills that requirement. Moreover, the TGM's policy includes a requirement at E.2.a. that the permit include a statement that the local government has declared that mining is prohibited and that the DEC permit does not relieve the permittee from the need to obtain local approvals.General Condition 8 of the Lane draft permit (p. 2 of 10) addresses the point that the permittee is not relieved from the need to obtain local approvals. The draft permit does not note that the local government has declared that mining is prohibited. The TGM provides that if the local government asserts, contrary to the applicant, that mining is prohibited at the location, then DEC will either:

a) Proceed to permit issuance or denial. If a permit is issued, the permit will not contain any special conditions regarding local prohibition, if one exists, beyond the general advisory that issuance of a DEC permit does not relieve the applicant of the need to obtain any required local permits or approvals, and a notation that the local government has declared that mining is prohibited; or

b) by agreement with the applicant, suspend UPA time frames,See ECL 70-0109(6). to seek to allow the dispute to be resolved.

An exception to DEC processing to issuance or denial applies on Long Island, where ECL 23-2703(3) provides that DEC must discontinue processing a permit application based on a Long Island local government's assertion that zoning is prohibited. This exception is based on Long Island's unique geology, and the fact that most of its drinking water supply is drawn from groundwater.

The TGM's policy keeps DEC from being drawn into zoning disputes between applicants and local governments. While the parties appear to recognize that DEC should not adjudicate such disputes, Movants in this appeal assert that DEC's MLRL permit proceedings should be deferred until the zoning dispute is resolved. Thus, the precise question considered in this appeal deals with whether the sequencing of DEC and local permit proceedings under the TGM is consistent with the MLRL and makes good policy sense.

Movants' Arguments

Movants contend that the TGM's policy is wrong for four reasons: (a) it is inconsistent with the Home Rule provision of Section 2(b)(2) and 3(d)(1) of Article IX of the State Constitution; (b) it is contrary to the MLRL, as amended; (c) local law prohibits mining at the proposed location of Lane's proposed mine in the Town of Nassau, and Lane's statement to the contrary is wrong; and (d) it is inefficient, and does not serve its objective of keeping DEC out of zoning disputes.

Discussion

The Legislature's policy under the MLRL is to foster and encourage the development of an economically sound and stable mining industry, and the orderly development of domestic mineral resources necessary to assure satisfaction of economic needs compatible with sound environmental practices (ECL, 23-2703(1)). The State's mined land reclamation policy is to plan and minimize use of non-renewable mineral resources, to provide for a productive reclamation of mined sites, to prevent pollution, and to protect public health and safety, including aesthetic values. (Id.). DEC is responsible for implementing these statutory directives.

The MLRL supersedes all other State and local laws relating to the extractive mining industry, except that local governments are not prevented from enacting local laws of general applicability, so long as they do not regulate mining or reclamation activities regulated by State statute, rule or permit (ECL 23-2703(2)). However the MLRL does not prevent local governments from enacting local zoning ordinances which determine permissible uses in zoning districts. Where mining is permissible in a district and allowed by a special use permit, the local government's power to condition such a permit is limited to ingress and egress, routing on local roads, and to permit conditions concerning setback, barriers to restrict access, dust control and operating hours provided that DEC concurs.Local governments may also regulate mining or reclamation of mines not required to be permitted by the State.

Home Rule

It is evident that the MLRL expressly preempts local laws, but retocedes certain limited authority back to local governments. Given this legislative determination and statutory structure, the Movants' argument that the TGM violates the home rule powers of municipalities under the State Constitution is erroneous. The Legislature's power to preempt the field of regulation, such as mining, is a fundamental limit on municipal home rule powers. See Albany Area Builders Assn. v. Town of Guilderland, 75 NY2d 372, 376 (1988).

The MLRL

Movants also claim that the MLRL is violated by the TGM's policy that applications (other than for sites on Long Island) will be processed regardless of a dispute between applicant and local government over whether mining is prohibited. However, the TGM is fully consistent with the MLRL, and in fact implements it in an optimally practical manner, considering the State's policy under 23-2703, both to foster mining consistent with environmental concerns, and to respect the interests of local governments.

Section 23-2711(2)(c) of the MLRL provides that to be "complete," an application must contain a statement by the applicant that mining is not prohibited. A "complete" application is defined at ECL 70-0105(2) as one "which is in an approved form and is determined by the Department to be complete for the purpose of commencing review of the application, but which may need to be supplemented..." Thus, a "complete" application is not necessarily approvable; it is a point of beginning.For example, the ALJs' September 21, 1995 ruling required Lane's application to be supplemented as to air, water, historic preservation and threatened species issues, but, consistent with 6 NYCRR 624.4(c)(7), they did not remand it. Once an application is deemed complete pursuant to the Uniform Procedures Act (ECL, Article 70) and 6 NYCRR Part 621, the record is to be completed as part of the hearing process. See 6 NYCRR 624.4(7): "The completeness of an application...shall not be an issue for adjudication. The ALJ may require the submission of additional information...". ECL 23-2711(2)(c) thus simply requires the applicant, as a starting point, to state that mining is not prohibited. Under ECL 23-2711(3), the application is next sent to the local government which, among other things, is afforded the opportunity to dispute applicant's claim. However, except for applications to mine on Long Island, the MLRL does not require DEC to stop processing applications because of the existence of the zoning dispute. Moreover, Article 70 of the ECL, Uniform Procedures, requires that processing of the permit application should continue until issuance or denial.Prompt notice of a complete application must be published pursuant to Article 70. Upon receipt of a complete record after a public hearing, if one is held, a decision must be made. (ECL 70-0109(2) and (3)). The provisions of Article 70 apply to the MLRL (See ECL 70-0107(2)).

As a minimum, the MLRL gives DEC the discretion to continue to process non-Long Island applications to issuance or denial regardless of the existence of a zoning dispute between applicant and the local government. Based on an expressio unius rationale, the requirement that DEC must stop processing Long Island applications implies that it may, even must, continue to process non-Long Island applications.See letter from Marc Gerstman, Esq., DEC Deputy Commissioner and General Counsel, dated May 5, 1992 to Mr. Kevin Crawford, concerning guidance on the MLRL's 1991 Amendments, at p. 3. The Appellate Division's recent decision in the Matter of Valley Realty Development Company v. Jorling ___ AD2d ___, No. 1446, filed Nov. 15, 1995, 4th Dept. confirms this interpretation of the MLRL.

More significantly the Appellate Division's Valley Realty decision instructs that it is DEC's "power and duty to issue permits in accordance with the criteria of the [MLRL]", and that TGM 92-2 correctly requires DEC to continue to process applications "even where mining is prohibited by local law" (slip op.). Thus, in Valley Realty, the Court found that DEC should not have discontinued processing a mining permit application even where the local zoning ordinance had been held in a previous decision by the same Court to be a constitutional town-wide prohibition against mining.The Court's previous decision (Valley Realty v. Town of Tully, 187 AD2d 963 (3rd Dept, 1994) did not decide whether the Petitioner (Valley Realty) had a vested right to mine notwithstanding the new ordinance (See Valley Realty v. Jorling __ AD2d __, slip op., (Nov. 15, 1995), and decision of Supreme Court of June 8, 1994 at p. 8 (unpublished). Most importantly for present purposes, the Valley Realty decision finds TGM 92-2 to be rational and reasonable. Processing a complete application to issuance or denial is mandatory under 70-0109 of the ECL's Uniform Procedures Article, according to the Court in Valley.

DEC lacks the jurisdiction and competence to adjudicate zoning disputes. See Hingston v. New York State Department of Environmental Conservation, 202 AD2d 877 (3rd Dept, 1994) and Town of Poughkeepsie v. Flacke, 84 AD2d 1. Accordingly, interpreting the MLRL in a fashion that minimizes DEC's potential for involvement in local zoning disputes, as does the TGM, is consistent with principles of sound statutory construction.

Policy

Given the above statutory framework, when implementing the MLRL in cases where a local government and an applicant disagree as to a zoning issue, DEC is faced with the alternatives of either processing or not processing the MLRL permit application. The TGM elects to process, with the caveat in any issued permit that the local government and the applicant need to resolve their zoning dispute separately. I agree that this policy is appropriate, given the Legislature's policy under the MLRL and the Uniform Procedures Act, the local government's authority to enact their own zoning laws of general applicability, and DEC's inability to resolve zoning disputes. By DEC determining initially whether an MLRL permit will be issued, and if so, on what terms, the issues in a subsequent zoning dispute are more readily identified and resolved. Of course, if no MLRL permit is issued, the zoning matter becomes moot. If an MLRL permit is issued, the existence of the DEC permit and its conditions allows the parties to the zoning dispute to focus on an actual proposal, not one subject to various potential actions of a subsequent DEC permit proceeding. Thus, the TGM's policy has a rational basis as well as a sound legal footing, as the Appellate Division's Valley Realty decision confirms.

The record in the Lane case indicates that there exists a genuine dispute of fact and law between the applicant and the Town as to whether mining is prohibited. Movants have argued that the TGM's policy allows applicants to blithely assert that mining is not prohibited, even though the local prohibition is "clear" and "unambiguous". DEC's experience runs counter to that argument. DEC's observation is that applicants are generally reluctant to undertake to seek an MLRL permit, with its attendant effort, time, and cost, absent a genuine belief on their part that they will also be able to obtain requisite local approvals. In the event this experience changes, the matter will be reviewed further.

CONCLUSION

TGM 92-2, reflects a well considered, prudent and lawful policy. It is hereby confirmed and will continue as Department policy until and unless it is revised in the future. The ALJs' determination not to suspend or remand the proceedings in this case is affirmed.

For the New York State Department of Environmental Conservation

/s/
By: Michael D. Zagata, Commissioner
Albany, New York
November 27, 1995

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