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Lane Construction Company - Interim Issues Ruling 2, February 22, 1996

Interim Issues Ruling 2, February 22, 1996

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 Consolidated Mine in the Town of Nassau, Rensselaer County, New York

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

INTERIM ISSUES RULINGS

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 operation would gradually 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. The Department staff, while neither in favor of nor opposed to the project as applied for, submitted a draft permit for consideration in the hearing process. The draft permit proposes conditions under which the project could be approved, in staff's view.

On June 27, 1995, a legislative hearing on the project was held in the Town of Nassau. Comments received from the public were overwhelmingly opposed to the project. Two organized citizens' groups, Nassau Union of Concerned Citizens (NUCC) and Citizens Against Lane Mine (CALM), have petitioned for party status, as have the Towns of Nassau and nearby Chatham, the New Lebanon Central School District, the Rensselaer County Environmental Council, and three pro se individuals: Robert L. Henrickson and Alice and Leonard Impastato. Petitions for party status assert issues regarding the proposed mining project's impacts upon air quality, human health, water quality and quantity, wetlands and wildlife; negative impacts of noise and blasting; State Environmental Quality Review Act (SEQRA) issues, including community character, zoning, Kinderhook Creek impacts, and property values; and the alleged deficiency of the mining plan, and whether a MLRL permit can be issued in the absence of specific regulatory standards for reclamation.

Motion for Remand and Expedited Appeal

The issues conference commenced on July 24, 1995. On the eve of the issues conference, prospective intervenors NUCC and CALM moved for remand to Department Staff or suspension of the proceedings on several grounds: that the application was deficient in not including applications for SPDES and air emission permits, that the project violates local zoning and therefore the application should not be processed, that the application is deficient with regard to evaluation of impacts on historic resources in the vicinity of the proposed project. At the first session of the issues conference, CALM requested site access for the purpose of evaluating the wetlands and wildlife impacts, and other prospective intervenors sought permission to cross move regarding the motion for remand. The ALJs granted permission to cross-move. The motion was opposed by Department Staff and Lane.

The ALJs issued their Preliminary Ruling on these issues on September 21, 1995. The motion for remand or suspension was denied; the questions of whether Article 19 (Air) or Article 17 (SPDES) permits are required were found to be issues for adjudication, subject to refinement during the issues conference; CALM was granted limited site access; and the question of whether the Division of Mineral Resources' policy to process applications for mines which are asserted to violate local zoning ordinances is contrary to law or should be changed was reserved for the Commissioner. Since the ruling was preliminary, i.e. the issues conference had not been completed, the ruling was made appealable following the final issues ruling at the conclusion of the issues conference.

The prospective intervenors sought and were granted permission to take an expedited appeal to the Commissioner on the question of processing the application in the face of asserted local zoning prohibitions. They argued that a change in policy would obviate the need for further processing of the application until Lane and the Town of Nassau resolve the zoning issue. On November 27, 1995, Commissioner Zagata affirmed the Division's policy of processing such applications. See, Matter of Lane Construction, Interim Decision of the Commissioner, November 27, 1995.

Issues Conference

The issues conference took place on July 24 and 25, September 21, 22, and 26, 1995. Remaining to be dealt with were proposed issues concerning the project's impacts upon endangered or threatened species and upon historic resources. The final day of the issues conference to address these issues had been scheduled for December 12, 1995, but was adjourned until January 30, 1996, at the Applicant's request. During the hiatus between the September 1995 and the scheduled January 30, 1996 sessions, a site visit took place, pursuant to the September 21, 1995 Preliminary Ruling, to allow proposed intervenor's expert to evaluate the site for the presence of the threatened timber rattlesnake. In addition, and further in response to the Preliminary Ruling, Lane was to submit information required by the Office of Parks, Recreation and Historic Preservation (OPRHP) under PRHPL 14.09 and 6 NYCRR 621.3(a)(7).

At the applicant's request, prior to January 30th, the final day of the issues conference was postponed until February 15, 1996. Prior to that date the applicant again sought an adjournment, this time to late March or early April, to enable it to submit the requisite documentation and to give OPRHP time to review it prior to the final issues conference session. Scheduling conflicts indicate the final session will not take place before April 9, 1996.

In light of the fact that the record is complete with regard to all but two proposed issues, and because of the extended delays described briefly above, it would facilitate and expedite the permit review process to issue a ruling on the proposed issues for which the record is now complete, and upon party status. We anticipate that the issuance of the final ruling, dealing with the two remaining issues, will take place immediately following the final issues conference session.

Issuance of an interim ruling at this time will give all concerned a degree of certainty and allow the time required for appeals, following the final ruling, to be shortened. This will expedite the appeals process. For reasons of administrative efficiency, this interim ruling is appealable only after the ALJs have ruled upon all proposed issues.

RULING

Standard of Review

A petitioner seeking party status must demonstrate an environmental interest in the proceeding (6 NYCRR 624.5[b][1][ii]) and that a substantive and significant issue exists regarding the proposed project (6 NYCRR 624.4[c]). When the Department staff has determined that a permit application, conditioned by a draft permit, will meet all statutory and regulatory requirements, the petitioners then have the burden to show that the proposed issue is substantive and significant (624.4[c][4]).

An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further (624.4[c][2]). To make a determination of substantiveness, the ALJ must examine the proposed intervenor's presentation -- the petition for party status, offers of proof, issues conference presentation, and any written submissions on the issues -- in light of the permit application, the draft permit, if any, and written and oral arguments of the applicant and others in opposition. In order to successfully raise an issue for adjudication, a petitioning intervenor must go beyond expressing a concern. Rather, the intervenor must provide a basis for such concern founded upon facts which can be subjected to adjudication. An offer of proof must raise issues of fact which can be determined through adjudication.

A substantive issue may also be raised by the identification of a defect or an omission of pertinent information in the application and EIS, so as to warrant further inquiry. (Town of Brookhaven, Interim Decision of the Commissioner, July 27, 1995; In the Matter of Oneida County Energy Recovery Facility, Interim Decision, July 27, 1982; In the Matter of Halfmoon Water Improvement Area, Interim Decision, April 2, 1982; In the Matter of Broome County Department of Public Works, Commissioner's Decision, June 11, 1984)

An issue is significant if the adjudication can result in permit denial, a major modification to the proposed project, or the imposition of significant permit conditions beyond those proposed in the draft permit (6 NYCRR 624.4[c][3]).

In this case, the eight prospective intervenors, each of whom has demonstrated a sufficient environmental interest for either full or amicus party status under Part 624, have attempted to raise a number of adjudicatory issues, which we have grouped into categories. This ruling will deal first with the proposed issues for which the record is complete, and then determine party status.

Completeness

Whether the Department staff properly declared the MLRL or Air Permit applications complete is not an issue for adjudication. A determination of completeness by the agency merely means that the application is ripe for review; it does not mean a permit is approvable. Deficiencies in applications deemed complete by staff may be suggested by intervenors and staff. One function of the hearing process is to remedy any such deficiencies. The adjudication will focus on whether or not the application is approvable.

Ruling 1: Completeness of the application is not an issue for adjudication.

Water Quality and Quantity Issues

The Department's Uniform Procedures Act Regulations require an applicant to apply simultaneously for all permits needed for the project, or show good cause for not doing so. 6 NYCRR 621.3(a)(3). We found in the Preliminary Ruling that the prospective intervenors had presented offers of proof sufficient to raise an issue for adjudication concerning the need for a SPDES permit. Although both the DEIS and Mined Land Use Plan contemplate the need for a SPDES permit for stormwater discharge associated with industrial activity, and the draft permit, at page 9, requires that no development of the site be undertaken without a SPDES permit, and no discharge to surface water from land affected by mining may take place except as authorized by a SPDES permit, Lane has not to date applied for a SPDES permit. We reiterate the determination made in the Preliminary Ruling (September 21, 1995) that Lane must apply for a SPDES permit and Department staff must evaluate the application. Without the review which comes with the permitting process, it is not clear that Lane's detention pond and stormwater control plan will be adequately protective. There is a valid concern that industrial discharges from processing equipment and dust control activities on site and uncontrolled and untreated stormwater runoff will reach the bordering Kinderhook Creek. CALM offers proof that the project will result in excess turbidity, increase particulates, and produce temperature changes which could render the Kinderhook an unsuitable habitat for trout, and thereby impair this valuable regional recreational resource.

The intervenors have also raised an issue regarding the project's impact upon the quality and quantity of groundwater supplying nearby residential wells. NUCC asserts that Lane's hydrological data is insufficient to predict the impact of removal of Snake Hill on water resources, and offers proof that the applicant's estimate of water table drawdown is understated. NUCC's expert argues that more wells will be affected than the two neighboring wells identified by the applicant.

The Impastatos, through their engineering expert The Impastato's engineering expert, Paul R. Plante, P.E., withdrew as expert witness and participant in this proceeding by letter dated November 14, 1995., urge that the cumulative impacts of all mineral removals in the general vicinity of the proposed mine be evaluated for water quantity impacts. They assert that Snake Hill serves as both a water storage vessel and a "head" providing pressure for wells in the area, and its removal has not been adequately evaluated. The applicant asserts that there will be no impact upon neighboring wells because no mining will take place below the level of such wells.

Lastly, several parties assert that maps on file in the Rensselaer County Soil and Water District show an abandoned Town landfill exists on the property. From the DEIS, they say, the proposed detention pond appears to be located over or near the site of this landfill. If so, they assert, the landfill's contents could contaminate the stormwater and eventually the Kinderhook through outflows from the site. If the intervenors are correct, it may be necessary to relocate the detention pond. At this point, an investigation is needed to determine whether an abandoned landfill is in the vicinity of the proposed detention pond. If it is in the vicinity of the proposed detention pond, the Applicant will need to either relocate the pond or otherwise assure that the abandoned landfill will not leach and adversely effect the Kinderhook.

Further information is needed before we can determine with reasonable assurance that the proposed mining project will meet applicable regulatory standards and will not adversely impact the water resources of the Kinderhook Creek and of the residential community nearby. This is implicit in staff's August 16, 1995 response to the proposed intervenors' motion to remand. (See, Matter of Hyland, Fourth Interim Decision of the Commissioner, August 29, 1994.) Finally, we reject staff's notion of reserving the right to require the applicant to apply for a SPDES permit in future, should a discharge actually occur. It is more efficient and more protective of the Kinderhook, as well as required by regulation, to address the matter in these proceedings to ensure the completion of a acceptable FEIS.

Ruling 2: An adjudicable issue has been raised with regard to stormwater discharges. The Applicant is required to apply for a SPDES permit for stormwater discharges related to industrial activities; that application and staff's review thereof will be considered in this proceeding. b. An adjudicable issue has been raised on the mine's impact on the quality and quantity of groundwater supplying residential wells nearby. c. An adjudicable issue has been raised with regard to the existence and impact of a former landfill on site upon the Kinderhook Creek.

Air Quality/Emission Issues

On the eve of the July 24th issues conference, Lane submitted an application for a permit to construct and operate an air emission source (hereinafter the "air permit"). The emissions will come from aggregate processing on site, both from processing equipment itself and from fugitive dust. This application had been sought in the intervenors' pre-hearing motion; we found in the Preliminary Ruling that the question of whether an air permit is required would be an issue for adjudication. The air permit application was separately noticed in the Environmental Notice Bulletin (ENB) and the Troy Record; comments were received by the Department and copied to the Applicant and proposed intervenors.

The air permit application raises both procedural and substantive questions for discussion here.

a. Procedural Matters: The intervenors assert that the air permit, because it was not applied for prior to the June 27, 1995 legislative hearing on the Mined Land Use Permit application, should be handled separately from the instant proceeding, including being noticed and commented upon, with a separate legislative hearing and adjudicatory proceeding. They argue that otherwise the general public will not have an adequate opportunity to comment upon the air permit application. Even though the DEIS deals with air emissions from processing and fugitive dust, the intervenors point out that the emission estimates in the DEIS are substantially higher than those used in the air permit application; therefore, they assert, the DEIS requires amendment to take the lower numbers into account, at least.

The Applicant points out that the air issue is treated extensively in the DEIS; the emissions estimates in the DEIS represent a worst case scenario and are therefore conservative; and the impacted citizenry is adequately represented by NUCC and CALM and other potential intervenors in this proceeding, all of whom have had ample opportunity to comment upon the air permit application. DEC staff argues in addition that, had the air permit been applied for alone, it would have been classified as a minor application which requires no public notice, and as an unlisted action under SEQR.

The purpose of requiring that all applications necessary for a project be submitted and considered in one proceeding is to assure that all potential impacts are examined and dealt with together. Adequate notice was given, in the original public notice for the complete application and legislative hearing, that an air permit and a SPDES permit would be part of this project. (See Exhibits 1A and 2) Air impacts were extensively discussed at the legislative hearing, and in the proposed intervenors' petitions for party status, as well as in briefs submitted on the air permit application. Then, the air permit was separately noticed and additional public comments accepted; the applicant's responses will be part of the hearing record under 624.12. We note that former 624.7 required that the responsiveness summary be submitted prior to the close of the adjudicatory hearing, but new 624.12 is silent as to the timing. We will require that the responsiveness summary be submitted prior to the close of the adjudicatory hearing in order that it may be considered with air issues in the hearing. Further, the DEIS does deal with anticipated air emissions; the proposed intervenors have made offers of proof with regard to this matter, and we expect additional information on air impacts will be developed through the adjudicatory hearing, and will become part of the final EIS.

We find that the public, both individually and through the efforts of CALM and NUCC, has had ample opportunity to participate in a meaningful fashion with regard to the air issues in the instant proceeding. It is extremely unlikely that any additional substantive and significant matters, or indeed any additional information relevant to the air permit, would be raised if additional procedural steps were imposed on the Applicant. Such steps would be redundant, costly for all participants, and of no environmental value.

Ruling 3: No issue is raised with regard to the Department staff's processing the application for the permit to construct an air emissions source.

b. Substantive Matters: Department staff evaluated the air permit application and commented by memorandum (and attached documents) from Assistant Regional Attorney Ann Lapinski dated July 28, 1995. According to staff, the emissions for which the permit is being applied result from a minor activity associated with a major activity, and therefore the permit application is processed as a major permit. Staff's evaluation, the proposed intervenors' arguments and our rulings on each point, follow:

I. PSD/PM-10 and Fugitive Dust/Emissions: DEC staff says that only major new sources -- those emitting 250 tons per year of federal criteria pollutants -- are subject to Prevention of Significant Deterioration (PSD) requirements. The only federal criteria pollutant the proposed facility will emit is PM-10, suspended particulate matter below 10 microns in size. EPA estimates that between 10% and 33% of the total suspended particulates (TSP) from a facility of this nature are PM-10. Staff uses a more conservative 50% figure, multiplied by the projected 6 tons per year of TSP from the facility, for an estimate of PM-10 of 3 tons per year. This is well below the permit threshold of 250 tons per year. Finally, staff argues that fugitive emissions, such as those from drilling and blasting, should not be included in the calculations for permitting thresholds, and that the Clean Air Act Title V program is not in effect and, therefore, the proposed regulations do not apply here.

NUCC's expert, Dr. Colin High, says that the permit application is deficient in that it ignores particulates generated from mining operations other than the processing equipment itself, emissions he alleges are greater than controlled emissions from operating processing equipment. While such emissions are mentioned in the DEIS and in the Application (Exhibit 13 B), no estimates are given. Therefore, the applicant's PM-10 emission estimate of 3 tons per year does not include emissions from sources other than processing equipment.

NUCC's expert also urges that the application employs incorrect or inappropriate emission rates for processing equipment, and ignores manufacturers' emission rates and manufacturers' recommended fugitive dust controls, such as enclosure of equipment. Use of manufacturer-recommended controls would result in lower emissions. Similarly, NUCC and CALM argue that Lane's use of revised AP-42 emission factors in the permit application, instead of the AP-42 factors it used in the DEIS, should be explained and justified. Staff responds that use of manufacturer data should not result in an appreciable difference because manufacturers typically base their emissions estimates on EPA data; the manufacturers will probably lower their reported emission rates in response to the EPA's AP-42 revisions, staff asserts.

CALM argues that the proposed regulations to implement the State's program under Title V of the Clean Air Act which, under the Act, states were required to have in place prior to November, 1995, would apply to the project and would require that fugitive emissions be included in permitting. If a state should default in establishing its regulatory program, CALM argues, the federal EPA would administer the Title V program in New York, and EPA regulations concerning the inclusion of fugitive emissions would apply.

The proposed intervenors NUCC and CALM have made persuasive offers of proof which conflict with the positions of staff and the applicant regarding the appropriate emission rates for process equipment, rates employed in determining whether PSD requirements apply to this project. The DEIS employs prior AP-42 rates, while the air permit application employs the revised AP-42 rates. The result is that the rate for emissions from the crushers in the application, for example, is only one percent of the projection in the DEIS. EPA's guidance document itself calls into question the reliability of the lower revised AP-42 rates. The intervenors urge that manufacturers' rates be used, since they are more likely to reflect the actual emissions to be produced at the facility.

Ruling 4: Given that the resolution of this conflict could be the imposition of additional permit conditions to control emissions, an issue has been raised for adjudication regarding the PM-10/ fugitive dust emissions for minerals processing equipment.

We find that fugitive emissions from trucking and loading and from operations other than processing at the project are not subject to permitting as an air emission source. However, they are customarily dealt with in the Mining Plan, which takes into account fugitive emissions typically arising from non-process operations. While the federal Clean Air Act requires the State to have implementing regulations for Title V in place in November of 1995, New York and many other states do not yet have EPA-approved regulations in place. Further, although there is a default provision in the Act, there are no EPA Title V regulations in place, either. Therefore, EPA cannot come into New York and run the Title V program, as the Clean Air Act envisions in a default situation such as this. When either New York, preferably, or EPA has a Title V regulatory program in place which imposes requirements upon the applicant's operation, then those requirements can be the subject of permitting under the terms of such program. Until then, conditions which are neither required by regulation nor shown necessary under the specific circumstances of the proposed operation cannot be imposed upon the applicant.

This said, the intervenors have made a strong case for taking a closer look at fugitive emissions and potential impacts of fugitive dust on nearby receptors. Their expert argues that effective dispersion or diffusion modeling of area sources can be done to more accurately estimate these impacts. Dust is one of the community's major concerns. If there are acceptable methods of estimating dust dispersion, then data may be developed that could allay the community's concerns and/or could be used to establish additional dust control protocols to deal with the problem. It is incumbent upon the reviewing agency to assure with at least reasonable certainty that fugitive dust is not an adverse impact of this project. However, we note that if fugitive dust can be confined on-site, there can be no adverse off-site impacts. (See, Matter of Brookhaven, Interim Decision of the Commissioner, July 27, 1995)

NUCC's experts, High and Kaliski, offer studies to show that quartz silica, which NUCC alleges is a significant component of the fugitive emissions expected from the project, representing 70% of fugitive dust from Lane's operations, will exceed the annual guideline concentrations (AGC) of 0.238 g/m3 for inhalable silica at various sensitive receptors nearby and in a large part of the villages of East Nassau and Brainard. (See, High and Kaliski Report, attached to NUCC's petition for party status.) NUCC offers Mark R. Cullen, M.D., Director of the Occupational and Environmental Medicine Program at Yale Medical School, with regard to crystalline quartz silica's causal relationship with cancer and silicosis in humans, as well as regarding PM-10. The silica content of the dust and resulting impact upon health in the nearby community is a further reason for concern, should fugitive dust leave the site. Therefore, we find that the intervenors have raised an issue for adjudication with regard to the control of fugitive dust from all operations at the proposed facility.

Ruling 5: No issue has been raised regarding whether fugitive emissions from trucking and loading require a Title V air permit; however, an adjudicatory issue has been raised regarding the employment of adequate fugitive dust controls to prevent adverse human health and economic impacts off-site in the community.

II. NOx Emissions: CALM's preliminary submission on the air permit asserts that there is no enforceable permit condition limiting Lane to use utility-generated power, that the proposed regulations implementing Title V of the Clean Air Act will require that the permit account for the potential to emit NOx from diesel powered engines. These concerns were addressed by an agreement reached among the parties at the issues conference on September 21, 1995, on a condition for the MLRL permit regarding NOx, removing this as a potential issue for adjudication. The condition is that all processing equipment contained on the List of Equipment and Emissions Inventory, included in the July 10, 1995 air permit application, and any replacements for or additions to such listed equipment, including but not limited to crushers, conveyors, and screens, will be powered solely by electricity provided by an off-site utility. No other source of power, such as diesel powered processing equipment or on-site generators, shall be used by the permittee unless the permittee applies for and obtains an air permit modification.

Ruling 6: The draft permit shall be revised to add the foregoing agreed upon condition, and therefore NOx emissions are not an issue for adjudication.

III. Emissions from Blasting: Emissions from blasting per se are irregular and do not constitute a permittable emission source. However, staff will recommend a permit condition requiring prior DEC approval of drilling equipment and blast protocols to assure that available emission control and dust suppression technology are employed. CALM and NUCC, through an offer of proof, assert that emissions from quarrying operations may be modeled using EPA-approved dispersion modeling.

As stated above with regard to fugitive emissions, it is clear that dispersion modeling would provide more accurate information upon which to base a determination regarding impacts from operations, and should be done before a MLRL permit is issued. It would not be sufficient to merely pre-approve blast protocols and drilling equipment after permit issuance. The permit review process is the proper venue in which to determine whether additional controls are necessary at the outset. Then, should a permit be issued, it will be up to the inspectors to assure that the controls imposed are sufficient to protect the surrounding community.

Ruling 7: Emissions from drilling and blasting are an issue for adjudication and will be considered as part of the adjudication of the other fugitive emission issues. (See Ruling 5)

SEQR Issues

Many of the environmental "Environment" is used as the Legislature intended, as determined by the Court of Appeals in Chinese Staff and Workers Association v. City of New York, 68 NY2d 359, 509 NYS2d 499 (1986), where the Court found that, in SEQR, environment includes such matters as "community or neighborhood character", and not merely water quality, air, and natural resources. See 6 NYCRR 617.2(l) where "environment" is defined as "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic, or aesthetic significance, existing patterns of population concentration, distribution, or growth, existing community or neighborhood character, and human health." concerns raised by prospective parties relate to matters outside the scope of specific permitting regulations applicable to the project. These matters are addressed under the Department's authority and responsibility as lead agency under the State Environmental Quality Review Act (SEQR, ECL Article 8) and regulations (6 NYCRR Part 617).

The lead agency under SEQR is obligated to conduct a de novo review of the impacts of a proposed project upon environmental factors including traffic, zoning, and community character, regardless of whether other agencies may have had an independent obligation to analyze potential impacts of the facility. If impacts are reasonably expected to occur, then the lead agency must analyze them. If an involved agency has not offered its expertise to the lead agency with regard to an issue within the involved agency's jurisdiction, then the lead agency is still obligated to make findings on the issue. (See, Golten Marine Co. Inc. v. New York State Department of Environmental Conservation, 598 NYS2d 59 (AD 2d Dept., 1993).

a. Noise from Operations: All prospective intervenors, with the exception of RCEMC, have raised specific allegations with respect to noise from mining operations, including challenging the DEIS's evaluation of truck loading and traffic noise, its failure to provide background/baseline noise information, its failure to analyze the specific processing equipment to be used, lack of analysis of siren and blasting noise's short and long-term impacts, and its failure to deal with cumulative impacts of noise from all nearby industrial sources. NUCC, CALM and the New Lebanon Central School District Board of Education have retained experts and made offers of proof; the Impastatos challenge the lack of cumulative impacts assessment.

NUCC and CALM offer expert testimony that operational noise levels will create a public nuisance, and while Part 422 contains no noise standard, ECL Article 19 categorizes noise as a pollutant and requires it to be minimized. It is alleged that the Part 360 standards for operating heavy equipment in landfills in rural/hamlet areas, which the Commissioner has found may be considered in mining operations Matter of Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995., will be exceeded throughout Brainard by Lane's proposed operations. NUCC alleges that manufacturers of process equipment recommend mitigative noise control measures which Lane should be required to employ in order to lessen noise from processing. CALM argues that mitigative measures offered in the DEIS are not included in the draft permit. The school district offers expert testimony on the impacts of anticipated levels of noise upon school children, both inside and outside the school building.

The applicant disagrees with the assumptions and conclusions of the intervenors' experts, and with the assertion that Part 360 standards may be applied to mining operations, and argues that the mining plan of leaving a perimeter buffer and "notching into the mountain" will provide sufficient noise mitigation. Further, applicant argues that mining operations will produce less noise than traffic on surrounding roadways which will, in fact, muffle the sounds of mining.

Staff argues that the applicant's analysis of noise impacts is sufficient, and that Part 360 standards only come into play if the ambient noise level is below 57. Ambient noise levels in the East Nassau/Brainard area, staff says, are between 62 and 72. NUCC responds that these readings were taken next to the highways through the community, which are heavy with truck traffic, rather than at a distance from the highways where human receptors actually live and work. NUCC's experts have measured lower ambient noise levels.

Ruling 8: We find that an adjudicable issue has been raised with regard to impacts of noise from the proposed project.

b. Blasting: All prospective intervenors, with the exception of RCEMC and the Town of Chatham, have raised specific concerns with respect to blasting. NUCC, CALM and the New Lebanon Central School District have retained experts and made offers of proof. They allege deficiencies in the DEIS regarding impacts of noise from blasting and sirens, failure to set forth blasting protocols which may be evaluated, deficiencies in permit conditions regarding baseline assessments of nearby structures and blast monitoring, failure to employ predictive modeling, and failure to specify mitigative measures for evaluation by the community. Finally, the intervenors argue that long-term impacts of blasting upon humans and animals have not been addressed.

As with noise issues, Lane argues in conclusory fashion that the mining plan for "notching into the hill" will screen most of the blasting noise and concussion from surrounding receptors. DEC staff argues that it is sufficient for purposes of the MLRL that Lane follow US Bureau of Mines blasting protocols.

Ruling 9: Experts retained by the intervenors have raised questions which the applicant and staff have not been able to resolve. We find that substantive and significant issues have been raised with regard to short and long-term impacts of blasting on the surrounding community and its inhabitants, which we must examine and assure are mitigated under SEQR.

c. Traffic: The DEIS, Appendix G, recommends certain mandatory and optional mitigation measures to deal with the admitted impacts of increased truck traffic on Route 20 and Route 66 and on the intersection of those roads. Neither the draft permit nor the Mining Plan, incorporated by reference, contain conditions regarding traffic. NUCC's expert, George List, Ph.D, P.E., agrees in substance with the applicant's traffic study. However, he is prepared to testify that the mitigation measures are "absolutely critical" to transportation safety in the vicinity of the site. CALM has retained Creighton Manning and offered that firm's evaluation of the applicant's traffic data, which in summary disputes the projected amount of additional traffic from the mine using more recent NYSDOT data, disputes the applicant's evaluation of safety consequences from trucks entering Route 66, and notes that no analysis of noise from truck traffic and its impact upon the community has been provided. CALM's experts call for an analysis of heavy truck noise and vibration upon surrounding structures and propose additional permit conditions regarding traffic noise mitigation, including restricting the types and capacity of trucks, restricting hours of operation, and constructing noise barriers.

These substantial offers of proof have directly confronted the applicant's traffic data -- how much increased traffic will be generated by the applicant's operations and whether that increase will substantially impact upon traffic safety and ambient noise levels. Additionally, the school district has asserted special concerns regarding the safety of school children awaiting bus transportation, which usually occurs during hours of peak traffic volume.

Some of the proposed mitigation measures to address the consequences of increased heavy truck traffic and noise are clearly within the Department's permitting jurisdiction, related as they are to mining activities and to development of the site itself. NYSDOT maintains both roadways and is responsible for the intersection of Routes 66 and 20. Although SEQRA does not change the jurisdiction of agencies, it is well settled law that the lead agency for SEQR, DEC in this case, must analyze all environmental impacts and assure that adverse impacts are minimized or avoided. (Golten Marine, supra; see also Town of Henrietta v. New York State Department of Environmental Conservation, 76 AD2d 215 [4th Dept. 1980]) Involved agency DOT has apparently not yet provided its opinion on the consequences, if any, of the proposed mining operations to traffic safety on Routes 66 and 20 and at the intersection.

It is not without precedent that operations pursuant to a DEC permit are made conditional upon the completion of necessary transportation improvements (see, In the Matter of Empire Bricks, Inc., Interim Decision of the Commissioner, August 1, 1990). To the extent that the applicant, staff and the potential intervenors are able to agree upon permit conditions to mitigate any of the adverse traffic impacts the intervenors assert, these matters would be removed from consideration at the adjudicatory hearing. We direct staff to coordinate the review of traffic impacts from the project with NYSDOT in order that its expertise may inform the Commissioner's SEQRA findings herein.

Ruling 10: The parties have raised adjudicable issues with regard to traffic safety and traffic noise impacts from the project.

d. Community Character, including property values, human health, cumulative impacts, and the Kinderhook creek.

SEQRA requires the lead agency to examine and mitigate adverse impacts to community character. 617.11(a)(4),(5); 617.2(l). In determining the nature of the community's character and whether the project will have an adverse effect upon it, it is helpful but not necessary if there is a master land use plan, designated special districts, or local zoning ordinances in effect. (See, In the Matter of Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995). For a definition of this community's character, we are referred by case law and agency precedent Chinese Staff v. NYC, 68 NY2d 359 (1986); Dailey, Interim Decision of Commissioner, supra. to any existing local plans and ordinances, in this case the Town of Nassau's Zoning Ordinance. This ordinance designates the area comprising the mine site as rural/residential and limits mines to three acres in size and five years in duration. We note that this examination SEQRA requires in no way rules upon the validity of the ordinance itself or the validity of its application to the mining project proposed by Lane. We merely look to the ordinance as the expression of the community's vision of itself. In this regard, see also WEOK v. Planning Board, 79 NY2d 373 (1992); In the Application of Wilmorite, Commissioner's Decision May 24, 1982 and In the Application of Pyramid Crossgates, Commissioner's Decision November 28, 1980.

Prospective intervenors have made offers of proof concerning negative impacts they believe the project will have upon several aspects of the character of this hilly, wooded rural/residential community, including its visual aesthetics, its quiet country atmosphere, its recreational resources exemplified by the Kinderhook Creek, its thriving small businesses -- some of whom depend upon clean air and quiet, and the health of its residents. Impacts upon these aspects of the community are alleged to be the result of increased truck traffic; run-off to the Kinderhook; vibrations, noise and dust from mining operations and truck traffic; or consequences of the mining itself as it gradually removes the twin peaks of the highly visible Snake Hill; and from the eventual loss of Snake Hill as a prominent geographical feature of the community. Some of the adverse impacts alleged -- noise, truck traffic -- require assessment in the context of existing nearby industrial/commercial activity which impacts similarly upon the surrounding community, as raised by the Impastatos.

Most of these alleged community character impacts have been held to be issues for adjudication under the specific rulings above. See Rulings 2, 4, 7, 8, 9, and 10. We will deal separately with visual impacts and the alleged negative economic and social impacts.

1. Visual Impacts: Visual impacts of the proposed mining activities and of the removal and loss of Snake Hill are raised under community character impacts, to be addressed under SEQRA. NUCC has retained the services of Michael Roland, a NYS Registered Landscape Architect, whose report, annexed to NUCC's and CALM's petitions for party status, convincingly critiques the applicant's more conclusory visual study. Roland offers an alternative systematic approach to evaluating both the visual importance of the site to the life of the community and the anticipated visual impacts of the project. Included is an analysis of the project's impacts upon the recreational experience offered by the Kinderhook Creek, where there is state fishing access within sight of Snake Hill. Roland's testimony disputes the DEIS's contention that the many decades of mining activity and the mining technique -- retaining until the latter phases of mining a ridge around much of the perimeter of the area where mining is taking place, will in effect mute its visual impact.

Were the visual impacts found as substantive and central to the character of the community as Mr. Roland's report contends, it may require major modification or denial of the permit as applied for and as drafted by staff.

Ruling 11: We find that an adjudicable issue has been raised with regard to the project's adverse visual impacts upon the character of this community.

2. Property Values and Local Business: Proposed intervenors have made an offer of proof to establish that the proposed mine will have, and indeed already has had, an adverse impact upon the value of property in East Nassau and Brainard. The applicant and staff argue that the impact of mining operations upon property values is not one within the scope of this agency's jurisdiction under either the MLRL or SEQRA. They state that the regulations require that the reclamation plan must protect and preserve the value of property, and so the issue, they argue, may be addressed only with regard to the adequacy of the reclamation plan.

In Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989, in declining to consider property value and tax diminution in the context of a sand and gravel mine, the Commissioner stated that it is local government's prerogative to protect the community's property values through local zoning. Local zoning may restrict the activity that may cause a decline in property values. The MLRL amendments of 1991 explicitly retained local governments' authority to enact laws of general applicability -- zoning -- while restricting their power over mining activities and reclamation standards. The role of local governments in protecting the property values and tax base of the community through zoning has been affirmed in subsequent commissioner's decisions, as well as by the courts. (See, Matter of Dailey, Interim Decision of the Commissioner, May 14, 1992; Matter of Kearney Gravel, Interim Decision of the Commissioner, September 28, 1992) These cases stand for the proposition that diminution of property values per se will not be adjudicated by this agency, even under SEQRA. However, these cases also throw into sharp focus the importance of local governments' traditional role and power to protect its resident's economic interests and the community's tax base by establishing and enforcing permissible land uses within zoning districts.

While SEQRA explicitly calls for a balancing of environmental, social and economic impacts, it has been interpreted consistently, in mining and other permitting cases, to require that beneficial social or economic impacts from a project may be found to offset adverse environmental impacts that cannot be completely mitigated or avoided. (In the Application of Wilmorite, Commissioner's Decision May 24, 1982 and In the Application of Pyramid Crossgates, Commissioner's Decision November 28, 1980) Adverse economic or social impacts have been recognized in this equation only to refute an applicant's allegations of economic or social benefits which offset unmitigatable environmental harm. (See, Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989; Matter of Dailey, Interim Decision of the Commissioner, May 14, 1992; Matter of Kearney Gravel, Interim Decision of the Commissioner, September 28, 1992; Matter of Tompkins County Board, Issues Ruling, March 30, 1990)

While this result may seem callous, any other interpretation would be unworkable. In this case, according to the intervenors' offers of proof, even the possibility of a mine in the community has caused property values to plummet. Were this factor alone found to be a sufficient reason to deny a permit, there might never be another mine or landfill or recycling center or other necessary or beneficial public or private facility sited in New York. Today the public is wary of changes and distrustful of the government's will or ability to control adverse impacts. The purpose of careful and thorough environmental reviews such as this is to assure that adverse environmental impacts of a project are mitigated or avoided, or that benefits from the project outweigh any adverse impacts which cannot be completely mitigated or avoided, and thus provide a clear net benefit to the community. (See, Red Wing, supra)

Therefore, allegedly adverse impacts to the existing local economy, such as harm to local businesses, reduction in property values and diminished tax revenues, are relevant in SEQRA review only in response to the applicant's argument that the economic benefits of a project outweigh any environmental harm which cannot be mitigated.

Ruling 12: Since the balancing required by SEQR will be necessary if unavoidable environmental impacts are shown, the parties will have the opportunity to develop the record about the economic benefits from the project the applicant alleges, including increased direct and indirect employment opportunities, lower cost aggregate for local construction, and increased local tax revenues, to the extent such benefits are alleged to offset adverse environmental impacts which cannot be completely mitigated. Evidence of adverse social and economic impacts to the community, which the intervenors offer, may then be offered.

Reclamation Standards:

NUCC argues that the Department, by failing to promulgate regulations in accordance with the 1991 amendments to ECL 23-2709, has lost its permitting jurisdiction. Prior 23-2709 (1) provides, in pertinent part:

1. The department shall have and be entitled to exercise the following powers and duties:

(c) to examine and pass upon applications for permits, bonds, and mined land-use plans including mining and reclamation plans;

(d) to establish criteria for the operation of mining such that reasonable care is taken ;

(e) to establish criteria for acceptable reclamation of affected lands, such criteria to be reasonably

Revised 23-2709(1) states:

1. The department shall have and be entitled to exercise the following powers and duties:

(a) to issue permits in accordance with the criteria set forth in this article and the rules and regulations promulgated hereunder;

(c) to establish environmental standards and criteria for mining and reclamation of the affected land to achieve the purposes of this title;

A comparison of the two provisions leads to the conclusion that the Department has the authority to issue permits in accord with the statutory criteria of Article 23, as well as with the rules and regulations. It is further evident that the amendments broadened the Department's powers to develop and impose mining and reclamation standards and criteria. Such standards and criteria are now authorized "to achieve the purposes of this title", that is, title 27 of ECL Article 23, which the Legislature set forth in 23-2703. Declaration of Policy. The prior declaration of policy provision gave authority to regulate mining activities specifically "to prevent pollution" and reclamation activities specifically "to reduce soil erosion to a minimum and to lessen the visual impact of discontinued or partially discontinued mining operations." While Part 422, developed under the old authority, goes far beyond regulating to prevent pollution, reduce soil erosion, and lessen visual impact of discontinued mining operations, it is likely that the very narrowness of the policy provision gave rise to the broader grant of authority in new 23-2709(1)(c). The regulations may have gone beyond the statute authorizing them. Thus new 23-2709(1)(c) authorizes the Department to regulate mining and reclamation "to prevent pollution, to protect and perpetuate the taxable value of property; to protect the health, safety, and general welfare of the people, as well as the natural beauty and aesthetic values in the affected areas of the state" in addition to the previously authorized regulatory purposes.

The fact that the Department has not yet promulgated new regulations Amendments to Part 421 and 422 effective January 18, 1995, did not address the mining and reclamation standards NUCC cited. These amendments did, however, incorporate new ECL 23-2703's affirmation of local governments' ability to enact and enforce local laws and ordinances of general applicability and determining permissible land uses within zoning districts. to accomplish these broad purposes does not deprive the Department of its authority to regulate as the Legislature intended. Although 228 of Chapter 166 of the Laws of 1991 provides that the regulations necessary for implementation be promulgated within 180 days of the effective date of the Act, there is no indication that the Legislature intended DEC's authority over mining to sunset unless such regulations were in place within 180 days, as NUCC argues. Therefore, we conclude that regulations to implement the broadened scope of permissible authority over mining are desirable but not necessary for the Department to exercise its authority. The Department may use the old regulations, supplemented as appropriate to implement its broadened authority under the 1991 amendments.

Ruling 13: There is no adjudicable issue raised with regard to the Department's authority to regulate mining absent new regulations under Chapter 166 of the Laws of 1991.

Mining Plan Deficiency

NUCC and the Impastatos allege that the mining plan is deficient in failing to specify processing equipment to be used and its location through the phases of mining; in failing to set forth blasting protocols; and in failing to address adequately the industrial discharge and hydrological issues. The air permit application now sets forth the specific equipment proposed to be used; their location during the phases of mining will be addressed under the issue of fugitive dust modeling. We are addressing industrial discharges and hydrological impacts as adjudicable issues. Therefore, alleged deficiencies in the Mining Plan are all being addressed elsewhere in this proceeding.

Ruling 14: No issue is raised regarding the sufficiency of the mining plan as such; specific concerns raised regarding the mining plan will be addressed as set forth elsewhere in this ruling.

No further adjudicable issues are raised.

Party Status Rulings

Pursuant to 6 NYCRR 624.5 (d)(1), full party status will be based upon:

  1. A finding that the petitioner has filed an acceptable petition for party status pursuant to 6 NYCRR 624.5(b)(1) and (2);
  2. A finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
  3. a demonstration of adequate environmental interest.

Pursuant to 6 NYCRR 624.5(d)(2), amicus status will be based upon:

  1. a finding that the petitioner has filed an acceptable petition pursuant to paragraphs 624.5(b)(1) and (3) of this Part;
  2. a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and
  3. a finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.

Ruling 15: Rensselaer County Environmental Management Council has met the requirements of 6 NYCRR 624.5(d)(1) and is granted full party status.

Ruling 16: The Town of Nassau has met the requirements of 6 NYCRR 624.5(d)(1) and is granted full party status. The proposed mine is located within the Town; the Town's zoning is relevant with regard to the impact of the proposed mine upon community character.

Ruling 17: The Town of Chatham, in which reside neighbors of the proposed project and through which trucks going to and from the mine will travel, has offered a witness on traffic safety. Although the Town has not met the criteria for full party status under 6 NYCRR 624.5(d)(1), this case will benefit from the Town's special position and input on the foregoing as an amicus.

Ruling 18: Nassau Union of Concerned Citizens has met the regulatory requirements of 6 NYCRR 624.5(d)(1) and is granted full party status.

Ruling 19: Citizens Against Lane Mine has met the regulatory requirements of 6 NYCRR 624.5(d)(1) and is granted full party status.

Ruling 20: New Lebanon Central School District has offered information with regard to noise impacts upon children's ability to learn, property values, and traffic safety for school children. The District has demonstrated a special position with respect to these issues and is granted amicus status in this proceeding on noise and traffic safety.

Ruling 21: Robert L. Henrickson has met the criteria for full party status contained in 6 NYCRR 624.5(d)(1) and is granted full party status. In the interests of administrative economy in this proceeding, his participation is consolidated with that of NUCC.

Ruling 22: Alice and Leonard Impastato have met the criteria for full party status contained in 6 NYCRR 624.5(d)(1) and together are granted full party status. In the interests of administrative economy in this proceeding, their participation is consolidated with that of NUCC.

Appeals

Pursuant to 6 NYCRR Part 624, parties and potential parties have a right to appeal rulings of the administrative law judges to the Commissioner. For reasons of administrative efficiency, appeal of the rulings herein will not be entertained until the record is closed, the transcripts of all sessions of the issues conference are available, and final rulings have been made. The final ruling will contain directions and a schedule for filing appeals from these and the final rulings.

_________________________
Susan F. Weber
Administrative Law Judge

__________________________
Robert P. O'Connor
Administrative Law Judge

Dated: Albany, New York February 22, 1996

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