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Lane Construction Company - Second Interim Decision, July 31, 1996

Second Interim Decision, July 31, 1996

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

SECOND INTERIM DECISION

July 31, 1996

INTERIM DECISION OF THE COMMISSIONER

This Interim Decision determines appeals by the Applicant, Staff, and one intervening party from the Issues Rulings of Administrative Law Judges Robert P. O Connor and Susan Weber in this permit proceeding. This matter concerns the application of Lane Construction Company ( Lane ) for a mined land reclamation permit and for related permits for authorization to construct and operate a rock quarry in the Town of Nassau, County of Rensselaer. Legislative hearings held on June 27, 1995 revealed considerable public opposition to the project. The Issues Conference commenced on July 24, 1995 and continued the next day; it was then adjourned and resumed for three days in September. At the parties request, it was further adjourned, and completed on April 9, 1996. The Final Issues Rulings were filed on April 22, 1996.

Applicant, Staff, and Mr. Robert Henrickson have appealed to the Commissioner from certain of the ALJs Rulings. Others were not appealed by any party and will be adjudicated as per the ALJs' Rulings. These include the project's visual impacts, among others. The Rulings appealed from are as follows:

PM-10/Fugitive Dust-Processing Equipment

1. Ruling 4 of 2/22 - finding an issue for adjudication on PM-10/fugitive dust emissions from mineral processing equipment. Appeals filed by Applicant and Staff.

Fugitive Dust-Off-Site Impacts

2. Ruling 5 of 2/22 - finding an issue for adjudication regarding the employment of adequate fugitive dust controls to prevent adverse human health and economic impacts off-site in the community. Appeals filed by Applicant and Staff.

Blasting Emissions

3. Ruling 7 of 2/22 - finding an issue for adjudication as to emissions from blasting, and stating that emissions from blasting should be considered as part of Issues 4 and 5. Appeals filed by Applicant and Staff.

Storm Water/SPDES

4. Ruling 2(a) of 2/22 - finding an issue for adjudication with regard to storm water discharges, and that Applicant is required to apply for a SPDES permit for storm water discharges related to industrial activities. Appeals filed by Applicant and Staff.

Landfill

5. Ruling 2(c) of 2/22 - finding an issue for adjudication as to the existence and impact of a former landfill on site upon the Kinderhook Creek. Appeals filed by Applicant and Staff.

Traffic

6. Ruling 10 of 2/22 - finding an issue for adjudication with regard to traffic safety and traffic noise impacts from the project. Appeals filed by Applicant and Staff.

Blasting Vibrations

7. Ruling 1 of 4/22 - finding that blasting impacts upon historic resources will be addressed as part of Ruling 9, which provides that blasting impacts on the surrounding community and its inhabitants will be an issue for adjudication. [Ruling 9 was not appealed from.] Appeal filed by Applicant.

Historic Preservation

8. Ruling 1 of 4/22 - finding that the issues raised by the State Office of Parks, Recreation and Historic Preservation ( OPRHP ) in its letter of March 25, 1996, concerning adverse visual impacts, archeology, and blasting specifications, would not be separate issues for adjudication, but would be addressed in connection with Rulings 9 and 11 (impacts of blasting and visual impacts on the community). Appeal filed by Robert L. Henrickson.

Party Status

9. Robert L. Henrickson objects to being consolidated as a party with Nassau Union of concerned Citizens ( NUCC ) for hearing participation purposes. Applicant objects to the ALJs' decision to grant party status to the Rensselaer County Environmental Management Council ("RCEMC") and to Alice Impastato ("Impastato").

Replies to the Appeals

Replies to the appeals of Applicant and Staff have been received from NUCC, RCEMC, Robert L. Henrickson (Henrickson), and Impastato. Staff replied to Mr. Henrickson s appeal.

Discussion

The basis for determining these appeals is whether the issues appealed from are substantive and significant within the meaning of 6 NYCRR .624.4(c)(2) and (3). The substantive and significant standard is applied where (as in this case) the issue is proposed by a potential intervening party. The party needs to come forward with an offer of proof adequate to show that a genuine factual dispute exists, which, if concluded in favor of the proponent would meaningfully affect the outcome of the hearing, such as resulting in a permit denial, or additional permit conditions not already proposed.

Summary

In this Interim Decision, I concur in the ALJs' various rulings, except as to traffic safety and traffic noise. As to traffic safety and traffic noise, I find there are no issues for adjudication. Further discussion as to each issue under appeal follows.

1. PM-10/Fugitive Dust - Processing Equipment

Ruling 4 (February 22) allows NUCC to proceed with its offer of proof intended to show that fugitive dust emissions from process equipment will or may exceed the threshold for PSD review of 250 tons per year. Applicant s computations indicate that such emissions will be well within this limit (See DEIS, p. 96). Staff in its appeal suggests that NUCC failed to consider the fact that wet suppression controls will be used, and that there is not a real dispute, merely a calculating error.

NUCC, on the other hand, replies that the dispute centers on the appropriate emission rates to be used in the computation. A genuine dispute of fact exists and the ALJs determination in Ruling 4 is affirmed. Applicant also appealed from Ruling 2 of September 21, arguing that to the extent there is no issue under Ruling 4, there is no issue under Ruling 2 of September 21. As I have affirmed the ALJs' Ruling 4, Applicant's appeal from Ruling 2 is denied.

2. Fugitive Dust-Off-Site Impacts

Ruling 5 (February 22) agrees that NUCC may go forward with its proposal intended to prove that fugitive dust controls will not protect against adverse human health and economic impacts in off-site in the community. Staff s appeal states that intervenor s expert is incorrect in asserting that modeling can be used under the applicable facts, and that the NUCC experts methodology is erroneous. Again, Staff s response points out that an issue of fact exists for adjudication and the ALJs Ruling 5 is affirmed.

3. Blasting Emissions

In Ruling 7 (February 22) the ALJs concluded that emissions from drilling and blasting will be considered under Ruling 5. Staff s appeals, stating, as it did in its appeal from Ruling 5, that diffusion modeling is inappropriate for use in these circumstances, and that there is no evidence that emissions from drilling and blasting will be substantive or contribute to a particular problem. Applicant notes that blasting will be intermittent, and that NUCC has not made an adequate offer of proof.

I concur that on the state of this record, the question of fugitive dust from drilling and blasting may be considered in conjunction with the overall issue of fugitive dust.

However, I do not concur in the dictum in the ALJs Ruling 7 that infers that dispersion modeling is appropriate and should be done. It is not clear whether modeling is appropriate or even possible for these circumstances. Also, Permit conditions on blasting protocols and on drilling equipment may be appropriate, and I do not concur in the inference that they are not. At this point, the record is uncertain, and it is appropriate in considering fugitive dust to take blasting and drilling into account as a factor in fugitive dust generation. However, I am making no pre-judgment at this time as to appropriate control measures, if any, as to fugitive dust from drilling and blasting.

4. and 5. Storm Water/SPDES - Landfill

Ruling 2(a) (February 22) concludes that an adjudicable issue has been raised with regard to storm water discharges, and that Applicant is required to apply for a SPDES permit for storm water discharges related to industrial activities. Ruling 2(c) states that an adjudicable issue has been raised as to the existence and impact of a former landfill on the site upon the Kinderhook Creek.

These related issues relate to the adequacy of Applicant's proposed storm water management plan. First, there is a question whether Applicant is entitled to seek coverage under DEC's SPDES General Permit for Storm Water Discharges Associated with Industrial Activity (Permit No. GP-93-05) or whether it needs to obtain an individual SPDES permit with respect to discharges to the Kinderhook Creek from the site. As to the general permit vs. individual permit question, the DEIS is equivocal. The DEIS states at p. 95 that Lane will seek coverage under the DEC's general permit "or obtain an individual SPDES permit" for storm water discharges. Appendix Q of the DEIS sets out a storm water management plan which is obviously intended to show that coverage under the general permit would be appropriate. On the other hand, the record is not clear whether the general permit can be used under the circumstances of this application. The general permit can not cover discharges associated with industrial activity which are subject to an existing effluent limitation guideline addressing storm water (or a combination of storm water and process water) (See General Permit, Part I.C.2.) Existing Effluent Guideline Limitations for Crushed Stone Mines, 40 CFR Part 436, appear to apply, and to address storm water. (See footnote 6 of DEC's General Permit GP 93-05). Moreover, waste water from mineral processing, if mixed with the storm water, would appear to require an individual SPDES permit. The issue whether a general or individual permit should be used in this application cannot be decided on this appeal and needs to be addressed at the hearing.

Additionally, the intervenors have questioned the design and adequacy of the proposed storm water management facilities. They have also suggested that infiltration from or to a suspected former landfill on the site may contaminate the storm water. I agree with the ALJs that it is reasonable to inquire further on these points. Accordingly, subject to the above, I deny the Staff and Applicant's appeals from Rulings 2(a) and 2(c).

6. Traffic

Ruling 10 (February 22) finds that the parties have raised adjudicable issues with regard to traffic safety and traffic noise impacts from the project. I disagree that there are traffic safety or traffic noise issues for adjudication.

a) Traffic Safety

Applicant s traffic study at Appendix G to the DEIS concluded that traffic to and from the site can be handled safely with the addition of signs highlighting the driveway and a stop sign at the driveway. Tree trimming to provide additional truck site distance was recommended along part of the Route. Traffic consultants for CALM concurred with this conclusion. NUCC s consultant, Dr. George List, stated that he found no major fault with Applicant s traffic study and essentially concurred with the recommendation of Applicant s expert. Given this state of the record, I cannot agree with the ALJs conclusion that there is a substantive and significant traffic safety issue for adjudication. Accordingly, I grant the Applicant s and Staff s appeals on the question of traffic safety.

b) Traffic Noise

Applicant s noise experts concluded (Appendix I) that trucks from the Lane Mine would increase noise levels on Route 66 by about 3 dBA, a barely discernable increase. He said this would not be significant. NUCC s noise expert, Dr. Scarton, focused mainly on noise from quarry operations. As to truck noise, he did no studies. He only speculated that it would not be unusual for truck noise to exceed 90 dBA every five minutes at one location. This assertion was not substantiated. CALM s traffic safety (but not noise) expert, Creighton Manning, noted in its June 27, 1995 letter that truck noise was not addressed in the traffic report [Appendix G] and should be investigated. The ALJs Ruling focuses on this statement by Creighton Manning; concluding that there has been an omission calling for an analysis of heavy truck noise and vibration... However, the ALJs appear to have overlooked the fact that a noise analysis was in fact supplied in Appendix I of the DEIS. Appendix I is the Applicant s noise analysis report covering both operations noise and truck noise. So the omission cited by the ALJ did not actually exist. CALM, in fact, supplied its own noise analysis by Galson Corporation dated June 27, 1995. As to truck noise impacts along Route 66, the Galson Report is limited to a two sentence criticism of Applicant s assessment: Applicant should have explained how it reached its 3 dBA conclusions, and there may be private haulers in addition to Lane trucks, which arguably would increase truck noise. But Galson did not challenge the 3 dBA conclusion. Based on the record as above described, I cannot concur in the ALJs conclusion that a substantive and significant issue for adjudication exists with respect to truck noise. I grant the appeals of Applicant and Staff on traffic noise.

7. and 8. Blasting Vibrations/Historic Resources

Ruling 1 (April 22, 1996) concludes in part that "no separate adjudicable issue has been raised with regard to impacts of blasting on historic resources." Applicant's appeal states: "Although it is unclear, it appears that the ALJs' decision may raise an issue for adjudication concerning the impact of blast vibrations on historic structures." Applicant continues by pointing out that the blasting vibration standards to be employed at the proposed mine are intended to prevent cosmetic damage to the weakest building materials. (See draft permit condition D6). Applicant suggests that intervenors have offered no proof to dispute the analysis in the DEIS, Appendix N, that Lane will meet applicable blasting vibration standards.

The ALJs' Ruling 1 (April 22) was that no separate issue is raised regarding blasting impacts on historic resources. Instead, Ruling 9 (February 22), which was not appealed by any party, will consider the concerns raised about the impacts of blasting on the surrounding community. In other words, consideration of blasting impacts on the surrounding community will not be selective as to whether the impacted resource or structure is or is not historic. The inquiry is to focus on the impact.

With this clarification, Applicant's appeal from Ruling 1 (April 22) is denied.

Robert L. Henrickson also appeals from Ruling 1 because it relegates consideration of visual and blasting impacts on historic resources to consideration under Rulings 9 and 11. Using the same reasoning above as to Applicant's appeal from Ruling 1, I deny Mr. Henrickson's appeal from Ruling 1. The proposed project's impacts on the surrounding community will take all structures into account, including those which are historic, but the inquiry is to focus on the visual and vibration impacts. Also, Mr. Henrickson fails to show that a substantive or sufficient issue is raised regarding archeological impacts. My review of the record shows that there are no such issues for adjudication. (See DEIS Appendix H).

9. Henrickson/Computer Disk

Mr. Henrickson is not required to supply a computer disk of his brief in this proceeding. While parties are encouraged to supply such a disk, they are not required to do so where it would be a hardship, as Mr. Henrickson has explained.

10. Henrickson/Consolidation with NUCC

I will affirm the ALJs' determination to consolidate Mr. Henrickson with NUCC at the hearing. Mr. Henrickson is in fact a NUCC member. Consolidating him with NUCC for hearing purposes is within the ALJ's discretion to regulate the course of the hearing and to direct consolidation of parties with similar viewpoints and input under 6 NYCRR .624.8(b)(1)(ix). No abuse of discretion has been shown in this case.

11. Party Status - RCEMC/Impastato

Applicant appeals the ALJs' decision to grant party status to RCEMC and Impastato. However, these appeals fail to persuade me that I should disturb the ALJs' decision in regard to party status, matters over which the ALJs have broad discretion. (See 6 NYCRR .624.5(d)). I deny these appeals.

Conclusion

This matter is remanded to ALJ O'Connor for further proceedings consistent with this Interim Decision.

For the New York State Department of Environmental Conservation

/s/
By: Michael D. Zagata, Commissioner
Albany, New York
July 31, 1996

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