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Lane Construction Company - Preliminary Rulings, September 21, 1995

Preliminary Rulings, September 21, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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, NewYork

PRELIMINARY RULINGS OF THE ADMINISTRATIVE LAW JUDGES

DEC Project No. 4-3830-00046/0001-0

Introduction

Lane Construction Company has applied for a permit under the Mined Land Reclamation Law (MLRL, ECL Article 23 Title 27) to operate an approximately 122 acre 100 to 150 year hard rock mine in the Town of Nassau, Rensselaer County. The mining would gradually take down and remove Snake Hill, a two-peaked 270 foot high geographical feature immediately northwest of the intersection of Routes 20 and 66 adjacent to the largely residential communities of East Nassau and Brainard, in the Town of Nassau, Rensselaer County. Department staff issued a draft permit.

The proposed operation is opposed by two organized citizens' groups, Nassau Union of Concerned Citizens (NUCC) and Citizens Against Lane Mine (CALM), the Towns of Nassau and nearby Chatham, the Lebanon Valley Central School District, the Rensselaer County Environmental Council, and three pro se individuals. The June 27, 1995, legislative hearing was attended by more than three hundred people, many of whom spoke; all but one opposed the mine. One of the primary reasons for the intense feelings that the proposed mine has created is the fact that the Department Staff has continued to process the mining application despite the fact that the Town of Nassau has a zoning ordinance that limits mining in the proposed mine's rural residential district to five acres and a three-year life of mine. The Department has continued to process the application because of a Division of Mineral Resources Technical Guidance Memorandum (92-2) interpreting the 1991 MLRL amendments.

On the eve of the July 24, 1995, Issues Conference, prospective intervenors CALM and NUCC moved for remand or suspension of the proceedings based upon the following grounds, briefly stated:

  1. DEC policy to process mining applications in the face of local zoning prohibition violates the language and legislative intent of the 1991 Mined Land Reclamation Law (MLRL) amendments, and is contrary to economical functioning of government.
  2. Failure of the applicant to apply for (and of DEC staff to require) an air pursuant to 6 NYCRR 200 et. seq. and a SPDES permit pursuant to 6 NYCRR 700 et. seq. violates the ECL Article 70, Uniform Procedures Act, requirement that all necessary permits for a project be applied for simultaneously unless there is good cause shown. 621.3(a)(3)
  3. DEC made its completeness determination even though Lane has not provided information on historic resources sought by the Office of Parks, Recreation and Historic Preservation (OPRHP) for its determination of historic impacts, as required for completeness under the Department's Uniform Procedures regulations. 621.3(a)(7)

Prospective parties who had not moved for remand prior to the Issues Conference were given permission to cross move, and have done so. The Issues Conference is scheduled to continue on September 21 and 22, when the matters of air, noise, health, water quality and quantity, the deficiency of the mining plan, wetlands and wildlife, State Environmental Quality Review Act (SEQRA) -- including community character, zoning, Kinderhook Creek impacts, and property values, and the legality of permit issuance in the absence of regulatory standards, all of which were raised as potential issues by prospective intervenors, are scheduled to be taken up.

For the reasons set forth below, the motion for remand is denied; the questions of whether the applicant requires air or SPDES permits are found to be issues for adjudication; the applicant shall supplement the DEIS with information required by OPRHP in its July 15, 1995 letter to Department Staff. The issues conference on this application shall continue as scheduled. Due to the preliminary nature of these rulings and the potential for refinement during the course of the issues conference, these rulings may not be appealed from at this time. All rulings on issues and party status shall be appealed together upon the issuance of final ALJ rulings, unless otherwise authorized.

Ruling

Local Zoning Prohibition and ECL 23-2711

The 1991 MLRL amendments (Chapter 166 of the Laws of 1991) were enacted in part to resolve a long-standing dispute among the Department, the mining industry and local governments. The Department's role was to regulate activities regarding the extraction of minerals, and reclamation of lands affected by mining. Local governments had always had the power to determine appropriate uses in zoning districts and to condition those uses. Former ECL 23-2703 had also guaranteed to local governments the power "to impose stricter mined land reclamation standards or requirements than" DEC. (see, Frew Run v. Town of Carroll, 125 AD2d 928, aff'd 71 NY2d 126 [1987]). However, locals often strayed into the Department's territory of regulating mining activities through the pretext of local zoning, local use permitting, or the imposition of more stringent reclamation standards, generating much litigation.

Finally, in 1991 the Legislature acted to clarify the relative powers of the Department and local government by codifying Frew Run. In exchange for a clear and unambiguous statutory affirmation of the right to enact and enforce zoning ordinances to determine where, if at all, mines were to be allowed, to regulate mining not regulated by the state [ECL 23-2703(2)(c)] and an exemption from permit fees for municipal mines, local governments gave up their right to impose reclamation standards more stringent than those imposed by DEC. (See December 26, 1991, Crawford letter appended to NUCC's Memorandum of Law herein.) Instead, a process was established [see ECL 23-2711(3)] wherein DEC notifies the local government of a complete application for a new mine, and the local government may then determine certain aspects of the mining operations [ECL 23-2711(3)(a)] -- setbacks, access restrictions, dust control, hours of operation, and whether mining is prohibited at that location -- which they must convey to DEC, with substantiation. The local government's determinations are to be incorporated into the DEC permit unless the Department Staff disagrees with the determinations and explains why in writing [ECL 23-2711(3)(b)].It is noted that Department Staff in this case failed to respond to the Town of Nassau's determination that the Lane mine as proposed would not be allowed under the Town's zoning ordinance, and did not explain why the determination was ignored.

It is clear from the language of the 1991 MLRL ECL 23-2703(2). amendments and from many cases decided before and since See, Frew Run, supra; Hoffay v. Tifft, 169 AD2d 94, 562 NYS2d 995 (1990); Voorheesville Sand & Stone Co., Inc. v. New Scotland, 136 AD2d 849, 523 NYS2d 692 (1988); Schadow v. Wilson, 599NYS2d 335 [3rd Dept, 1993]., that local government may, through zoning ordinances, determine where and whether mining is a permitted land use within its jurisdiction. Local government may "zone out" mining, or condition land uses, including mining, so long as the conditions do not regulate mining per se. Briarcliff Associates v. Town of Cortlandt, 144 AD2d 457, 534 NYS2d 215, appeal denied 74 NY2d 611, 546 NYS2d 555 (1989); Seaboard Contracting & Material, Inc. v. Smithtown, 147 AD2d 4, 541 NYS2d 216 (1989).

The Division of Mineral Resources issued Technical Guidance Memorandum 92-2 (the TGM) on May 4, 1995, interpreting the 1991 MLRL amendments to guide DEC Staff in processing applications submitted after the effective date of the amendments. This document embodies a procedure to be followed by the Department regarding local zoning prohibitions, a procedure directly challenged by the prospective intervenors in this action.

The mining permit application requires the applicant to respond to the question: "Is mining prohibited at that location?" A more appropriate question would be, "Is the proposed mining project prohibited under local zoning?" It would then be more difficult for applicants to obfuscate. If the applicant answers, "Yes", then Staff stops processing the permit until and unless the issue is resolved. If the applicant answers, "No", regardless of whether that is even a colorable position, processing continues as directed by the TGM. The applicant need not substantiate its answer. When all the application documents have been submitted, the Department Staff forwards the application to the local government for its review and input under ECL 23-2711.

Next, the local government may provide its input, including an answer to the question of whether mining is allowed at that location. Even if the local government answers that mining is NOT allowed, and provides a copy of a purportedly valid zoning ordinance or other substantiation, Staff continues processing the application, pursuant to the TGM. The procedure regarding local zoning is basically unchanged from the procedure followed prior to the 1991 MLRL amendments.

We interpret the procedure outlined in the TGM to be based in part upon a desire to maintain the Department's neutrality in any zoning dispute between the mine operator and the local government. However, although unintended, this procedure has fostered a tension among applicants, the Department Staff and local governments and citizens.

The policy question is, then, how appropriately to incorporate into the permit process both requirements of the statute -- the applicants' statement regarding whether mining is prohibited at that location and the local governments' determination regarding whether the proposed mine is authorized by the local zoning ordinance. Furthermore, how should the Department deal with the application in the event the applicant's and local government's statements regarding local zoning differ. An analysis of these questions follows.

The law itself does not provide clear direction.The Department may wish to craft legislation for introduction next session to clarify the statute and end the costly disputes which have arisen from the ambiguities highlighted here. A careful reading of the statute merely highlights its ambiguity. On the one hand, ECL 23-2711 (3)(a) and (b) clearly require that the Department incorporate into the permit the local government's determination regarding whether mining is prohibited at the site -- as well as its determination regarding setbacks and dust control -- or explain the reason why not. One reading of ECL 23-2711 would require the Department to stop processing the application if the local government substantiates the existence of a zoning ordinance which, on its face, prohibits the mining project. This is a rational interpretation since, if this result was not intended, then the provision requiring local governments to notify DEC that local zoning prohibits mining at the location arguably lacks meaning. The principles of statutory construction dictate that a statute should be interpreted in such a way as to give meaning to all of its parts.

Stopping the Department's processing of the application if the local government claims the mine is prohibited keeps the Department out of zoning disputes, assures that the Department gives credence to the chief local government official's determination, allows the zoning issue to be resolved outside the permit process, and avoids a lengthy and costly permit hearing for a mine that may never operate.

Another interpretation of the MLRL amendments is also possible. The Legislature included in ECL 23-2703 subdivision 3 which explicitly prohibits an agency from declaring complete or processing a permit to mine in Nassau and Suffolk Counties, if the "local zoning laws or ordinances prohibit mining uses within the area proposed to be mined." This provision would appear to require the Department to determine the validity of any such ordinance in Nassau or Suffolk county, the very problem the TGM 92-2 procedure seeks to avoid. Also, it is unclear how this provision is to be implemented under the procedures set forth in ECL 23-2711(3). It would have been clearer had this provision been made a part of and reconciled with 23-2711(3) by the Legislature. This arguably creates an inference that in other parts of the State, local governments' determinations regarding zoning are not to be given this effect. This is one basis for the policy in the TGM. Even putting aside ECL 23-2703(3), the TGM can be interpreted as consistent with ECL 23-2711(3)as a means of keeping zoning disputes, over which DEC lacks jurisdiction and competence, out of DEC permit processing.

While designed to keep the Department out of local zoning disputes, the current policy does not really accomplish this because local governments intervene in the permitting process to represent the interests of their citizens and to urge the legitimacy of their zoning ordinances. It does not result in either actual neutrality or the appearance of neutrality in zoning disputes. On the contrary, the policy continues to embroil the Department in such issues. (eg: Valley Realty v Jorling, currently on appeal to the Appellate Division, Fourth Department, in which the applicant challenged DEC's decision to stop processing after the Appellate Division upheld the validity of Town's zoning ordinance; Gernatt Asphalt v. Town of Sardinia, 208 AD2d 139 (1995), a clearly erroneous Fourth Department decision in which permission to appeal has been sought, which in dicta interprets the 1991 amendments as invalidating ordinances which exclude mining; and Schadow v. Wilson, 599 NYS2d 335 [3d Dept 1993], an Appellate Division decision diametrically opposed to Gernatt, which recognizes local governments' power to determine permissible uses within zoning districts and to condition mining uses in ways incidental to extraction, as Nassau's ordinance arguably does.)

It is recognized, on the other hand, that local zoning which facially prohibits a mine as proposed may be open to interpretation, or may provide for special use permits or variances under which some mining could be allowed. A court may declare a zoning ordinance invalid or inapplicable. Zoning may also be amended. The validity of the zoning ordinance, and its applicability to the project, are issues beyond the jurisdiction of the Department. However, unless and until the local zoning dispute has been resolved, it seems problematic for an applicant to answer the question, "No, mining is not prohibited", if the specific project for which the application is made would, on the face of the local zoning ordinance, be prohibited, and to thereby cause the processing of its application to continue.

The TGM reflects a considered and established Division of Mineral Resources policy on processing mining permits in situations where local zoning arguably prohibits a mine and the applicant asserts that the project is allowed. The policy, which was an attempt to resolve an admittedly difficult situation, has been followed by the Department in several Declaratory Rulings. In the instant case, we are bound by the policy enunciated in the TGM and constrained to deny the motion for remand.

Failure to Apply for Air and SPDES Permits

The rules require an applicant to apply simultaneously for all permits needed for the project, or show good cause. 6 NYCRR 621.3(a)(3). The intervenors seek remand or suspension of the hearing process because no Air After the instant motion was made, on the eve of the Issues Conference, Applicant submitted an application for a Part 212 Air Permit. (Exhibit 13A) That submission moots the argument regarding the failure to apply for the Part 212 permit. The adequacy of the Air Permit is the subject of another motion, and will be an issue for adjudication herein. or SPDES permits were initially applied for. Staff responds that, even though experience shows a SPDES Permit would likely be needed for the project, because of the unique geologic formation of Snake Hill, it was reluctant to question Applicant's conclusion that a surface discharge would not occur; therefore, no SPDES permit was required, but staff reserved the right to require one in future if a surface discharge were to occur.

The DEIS and Mined Land Use Plan (Plan) both contemplate the need for a SPDES permit for stormwater discharge associated with industrial activity. The Plan contemplates redirecting all stormwater runoff associated with rain water and snow melt onto the quarry floor as the hill gradients are gradually reduced; i.e., stormwater would be rerouted from its natural drainage onto the quarry floor. The Plan design assumes the flow will pass through fissures in the quarry floor and reenter groundwater. The Plan describes the stormwater detention pond and drainage system as holding the water "from the easterly side of the southerly hill" and any excess stormwater that does not infiltrate the quarry floor, for ultimate release through an outfall into an existing culvert on the site which passes under Route 66. Presumably, although the documents are incomplete in this respect, drainage travels from this culvert downward toward the Kinderhook Creek, approximately 1000 feet to the east of the culvert, at an elevation of approximately 600 feet. Appendix Q, the "Stormwater Discharge Management and Pollution Prevention Plan for New York State Department of Environmental Conservation SPDES General Permit for Stormwater Discharges Associated with Industrial Activity", describes the detention pond system in greater detail but clearly anticipates a discharge to the Route 66 culvert. (See Appendix Q, pages 8, 11, and 15.) It is not clear that any such stormwater discharge would be free of industrial pollutants and would therefore not require a SPDES permit.

Further, it is unclear from the application how the mining activity will affect the quantity and quality of the groundwater resource underlying the southerly hill, (described by Applicant as an "anomalous bulge") since this aspect was not addressed by Applicant or Staff.

The instant mining/air applications must be supplemented by an application for a SPDES permit. Accordingly we reject Staff's statement that the issue of a SPDES stormwater permit was not raised; see, e.g., page 12 of CALM's August 25, 1995 motion papers. Staff must also respond to CALM's assertion that, under the circumstances of this application, a General Permit would require an individual SPDES permit as well.

We reject the notion of reserving the right to require the applicant to apply in future, should a discharge occur. It is more efficient to address the matter in these proceedings and to ensure the completion of a acceptable FEIS.

Failure to Comply with Parks, Recreation and Historic Preservation Law (PRHPL) 14.09

OPRHP, by letters dated March 23, 1995 and July 15, 1995, requested information from the Applicant in order that OPRHP might make its determination under 14.09 with regard to this project. To date, the information requested has not been forthcoming. Whether OPRHP or this agency is required to make the ultimate determination regarding the proposed project's impact upon historic resources, the information OPRHP has requested is necessary for such a determination. Further, 6 NYCRR 621.3(a)(7) requires that PRHPL 14.09, if applicable, be complied with for an application to be declared complete. Consequently, the DEIS must by supplemented as requested by OPRHP before this issue may be addressed under SEQRA in the Issues Conference. (See, Xanadu Properties, Interim Decision of the Commissioner, October 14, 1990.)

Site Access

At the Issues Conference, CALM sought access to the site to investigate the alleged presence of the threatened timber rattlesnake. DEC Staff's determination that timber rattlesnakes are unlikely to exist on the site is based upon apparent lack of suitable timber rattlesnake habitat. To the extent Staff's determination is based upon a visit of short duration and limited scope on the morning of July 21, 1995, the Staff's assessment is unpersuasive. This is especially true in view of contrary information provided by the prospective parties. A more comprehensive evaluation would provide a greater degree of certainty and reliability of timber rattlesnake presence, in addition to the anecdotal and historical evidence heretofore presented by the intervenors.

The Applicant is directed to arrange a site visit by the proposed intervenor's biological expert, and Department Staff, if they wish to participate, at a mutually convenient time in the near future. The primary purpose of this visit shall be to assess the site for suitable timber rattlesnake habitat, and/or evidence that the timber rattlesnake actually exists on Snake Mountain. However, in the interest of a full and meaningful airing of potential wetland and wildlife issues, the intervenor's expert, while on the site, may utilize this opportunity to document the presence, or absence, of other species of interest in this proceeding.

CONCLUSION

The motion challenging current Department procedures related to the continued processing of a mining application in the face of a substantiated local zoning prohibition is hereby denied; such denial is subject to appeal as set forth below.

The Air permit application will be considered on its merits as an issue for adjudication.

A SPDES permit application must be submitted and will be the subject of adjudication.

The Applicant is directed to respond to OPRHP's requests for information and to do so as expeditiously as possible, since such information will be needed to enable the ALJ to make the SEQRA findings herein.

A site investigation will take place with respect to wetland and wildlife issues as soon as it can be arranged.

The issues conference will resume as scheduled Thursday, September 21st at 10:00 am until 4:30 pm, and will continue Friday, September 22nd, at 9:00 am until 12:00 noon. We will schedule subsequent days, as needed, at the issues conference.

Appeals

These rulings are preliminary and are intended to guide and focus discussions during the resumed issues conference on September 21 and 22, 1995. At the conclusion of the issues conference, a ruling on issues and party status will be issued.

Since these rulings are only preliminary, they are not appealable at this time pursuant to the provisions of 6 NYCRR 624.6(e) and 624.8(d). Following receipt of the rulings on party status and issues, those persons, groups and entities on the service list will have the opportunity to appeal both those rulings and these preliminary rulings.

Dated: Albany, New York
September 21, 1995

/s/
Susan F. Weber
Administrative Law Judge

/s/
Robert P. O'Connor
Administrative Law Judge

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