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Lane Construction Company - Final Issues Ruling 3, April 22, 1996

Final Issues Ruling 3, April 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

FINAL ISSUES RULINGS

INTRODUCTION

Lane Construction Company has applied for a permit under the Mined Land Reclamation Law (MLRL, ECL Article 23 Title 27) and a permit to construct and operate an air emission source under ECL Article 19, in order to obtain New York State authorization to operate an approximately 122 acre, 100 to 150 year, hard rock mine in the Town of Nassau, Rensselaer County. Region 4 staff has submitted for consideration a draft permit which proposes conditions under which the project could be approved.

A legislative hearing was held in Nassau on June 27, 1995, at which public comments overwhelmingly opposing the project were received. Petitions for party status were submitted 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 New Lebanon Central School District, the Rensselaer County Environmental Management Council, and three pro se individuals: Robert L. Henrickson and Alice and Leonard Impastato.

The issues conference commenced on July 24, 1995. On the eve of the issues conference, NUCC and CALM sought remand of the permit application or suspension of application processing on several grounds, as well as access to the site for investigation of the presence of wetlands and wildlife habitat. The motion for remand or suspension was denied in a Preliminary Ruling dated September 21, 1995, which further found that the questions of whether Article 19 (Air) or Article 17 (SPDES) permits are required would be issues for adjudication. 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.

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. Commissioner Zagata affirmed the Division's policy of processing such applications. See, Matter of Lane Construction, Interim Decision of the Commissioner, November 27, 1995.

The issues conference took place on July 24 and 25, and on September 21, 22, and 26, 1995. An Interim Issues Ruling on party status and on fourteen potential issues fully addressed during issues conference sessions through September 26, 1995, was issued on February 22, 1996. Appeals were reserved until issuance of final rulings at the conclusion of the issues conference.

Remaining to be dealt with were proposed issues concerning the project's impacts upon wetlands and endangered or threatened species, and upon historic resources. Apparently, review of the project for impacts upon any eligible historic structures by the Office of Parks, Recreation, and Historic Preservation (OPRHP), underway since 1994, had not been completed. The final conference session, at which these issues would be addressed, was scheduled and subsequently cancelled several times, at the Applicant's request, to allow Lane to submit information required by OPRHP, and to allow time for OPRHP to review and evaluate such information and make its determination of impacts under Parks, Recreation and Historic Preservation Law (PRHPL) 14.09 and 6 NYCRR 621.3(a)(7). Also during this hiatus, the site visit granted CALM in the Preliminary Ruling took place to evaluate the site for wetlands and wildlife.

This Ruling resolves the matters which were addressed at the final session of the issues conference on April 9, 1996.

RULING

Standard of Review

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]).

Historic Preservation Issues

The September 1995 Preliminary Ruling required Lane to submit information sought by OPRHP in making its determination under PRHPL 14.09 with regard to the project's impact upon historic structures. Such determination is then employed by DEC's commissioner in making SEQRA findings on the project's impacts upon the community, on whether specific impacts have been mitigated to the greatest extent practicable, and in balancing the benefits of the project against harm from unmitigated impacts. In holding this matter open and requiring the applicant to further document the potential impacts of this project, as OPRHP had requested, we anticipated that OPRHP's determination would provide specific and detailed analysis of visual impacts which could then be employed in substantive consideration in this proceeding, and in fashioning mitigative permit conditions. (See 9 NYCRR 428.8)

Lane performed the additional work required by the Preliminary Ruling to satisfy OPRHP's request. It submitted a Photographic Log: Views From Eligible Historic Structures, prepared by Heritage America, Ltd., which consists of photographs of structures, and of the mine site from structures, within 1.5 miles of the site which are eligible for listing on the State Register of Historic Sites. Computer-generated modelling was used to simulate the area's topography after mining and reclamation. The "after" renderings were laid over photographs showing the view of the site from each eligible structure, thus simulating the view toward the mine some 100 years into the future.

In addition, Lane submitted Supplementary Photographic Logs in response to a February 23, 1996 OPRHP request for more information. This supplementary information included surveys and analysis of 31 specific named structures, located within 1.5 miles of the Lane site, which OPRHP asserted were potentially significant and had not been included in the applicant's August 1995 survey or analyzed in the February 29, 1996, Photographic Log. Apparently, many of OPRHP's 31 sites were inaccurately located in their request and required field reconnaissance and interviews with residents to actually find. Some had in fact been previously documented by Lane or were located beyond the 1.5 mile radius established by OPRHP as the area of impact. Of the rest, the mine site will not be visible from most of them; others had been included in the earlier survey; still others had been determined by OPRHP as not eligible for listing as an historic site.

OPRHP's six sentence "determination letter" dated March 25, 1996, Exhibit 17, states with regard to visual impacts on historic structures that "the Lane mine project will have an adverse visual impact on historic resources."

The brevity and conclusory nature of OPRHP's determination gives no guidance as to which of the specifically named potential historic resources will be adversely impacted, the precise nature and extent of such impacts, when during the several phases of mining during the 100 plus year life-of-mine such adverse impacts are anticipated, and whether and how the impacts might be mitigated.

We believe deference must be given to a sister agency's review, jurisdiction and expertise. That is why we required, in the Preliminary Ruling, that the applicant comply with OPRHPs' data requests, and held the record open in order that OPRHP's expertise could inform this process. However, the substantive and significant standard necessary to raise an issue for adjudication should not be set aside when a governmental agency is involved. It is incumbent upon the reviewing agency to come forward with a useful analysis.

We found visual impacts to be an issue for adjudication in our February 22, 1996, Interim Ruling (Ruling 11). No offer of proof or substantive and significant information has been presented, either by the intervenors or by OPRHP, to support a finding that visual impacts upon historic resources may be any different in nature or kind, or may be any greater or more detrimental, from adverse visual impacts this project may have upon the overall character of this community. Indeed, the Town and others have argued that historic structures are integral to the character of the community. Consequently, visual impacts upon historic resources will be examined in the adjudicatory hearing. The applicant's submissions to OPRHP will be helpful in this evaluation. OPRHP is invited to assist in this endeavor by providing a detailed analysis addressing the questions set forth herein, in advance of the anticipated August 5th tentative hearing date. OPRHP may attend and offer evidence in support of their position regarding visual impacts through either the intervenors or DEC staff. However, visual impacts upon historic resources will not be a separate issue for adjudication. Regardless of whether OPRHP participates in the hearing, it is now apparent that SEQR findings on historic resource impacts can be made without further input from OPRHP under PRHPL 14.09.

With regard to OPRHP's assertions regarding the applicable blasting standards, it is not at all clear from the OPRHP determination letter or other materials in the record what precise resources are sought to be protected by imposition of standards apparently applicable to blasting beneath urban historic resources for tunnel construction. Further, the July 24, 1995 OPRHP letter (Exhibit 16) asserts that Peak Particle Velocity (PPV) protective of historic structures is .5 in/sec., which is the PPV standard set forth in the draft permit (Exhibit 4).

The Interim Ruling found that the intervenors had raised an adjudicable issue with regard to the short- and long-term adverse impacts of blasting upon the community and its inhabitants (Ruling 9). Once again, it has not been established that addressing the alleged impacts of blasting under Ruling 9 would not also adequately address the impacts of blasting upon historic resources. Consequently, we find that no separate adjudicable issue has been raised with regard to impacts of blasting on historic resources.

Finally OPRHP's determination letter cites "archeology" as an "outstanding issue". Earlier OPRHP correspondence (June 15, 1995, Exhibit 18) to DEC Region 4 staff identifies this issue more specifically as the Cahoon Site. Permit conditions suggested by OPRHP to protect the Cahoon Site were incorporated verbatim into the draft permit. In addition, the draft permit requires that "if any archeological or structural remains are encountered during excavation, the permittee must immediately cease, or cause to cease, all work in the area of the remains and notify the NYSDEC Regional Office. Work shall not resume until written permission to do so has been received from the Department." (Exhibit 4, Draft Permit, General Conditions #13) These conditions were previously deemed adequate by OPRHP to protect archeological resources on site. In light of the foregoing, no substantive and significant issue has been raised regarding archeological resources.

Wetlands and Wildlife

Wetlands: It is not disputed that there are no state regulated freshwater wetlands on site. CALM asserts, however, that the .37 acre on-site wetland in the saddle area between the two hills would be subject to regulation under the federal program administered by the Corps of Engineers. CALM further asserts that, although this wetland would ordinarily be covered under nationwide general permit 26, in this instance because there are historic resources in the vicinity that will be visually impacted by the project (although not by any activity in the wetland), a further inquiry by the Corps of Engineers is necessary.

Corps jurisdiction is triggered by filling, or by dredging which may result in material falling into federal wetlands; it is also triggered by mechanized land clearing. We note that this saddle area wetland is not within the area to be disturbed in the first five-year permit term, according to the mined land use plan and mining plan map. The Corps' nationwide general permit 26, applicable to small isolated wetlands such as this, allows discharge of up to one acre of fill in such wetland without Corps review/approval, subject to certain limited exceptions, and may be applicable here. In contrast, see In the Matter of William E. Dailey, Inc., Commissioner's Interim Decision, June 20, 1995, where the DEC staff was directed to determine whether the on-site and off-site wetlands were within the State 12.4 acre jurisdictional threshold and whether a Clean Water Act 404 federal permit, administered by DEC, was required.

As far as offers of proof are concerned, despite being granted access to the site for the purpose of obtaining information regarding wetlands and wildlife issues and despite specifically examining wetlands during the site visit, CALM's expert's report (Exhibit 23) does not provide any information or evidence of substantive and significant impacts to on-site wetlands.

The water quality and quantity impacts of construction and mining upon the on-site wetlands near Route 66, the off-site wetlands and the Kinderhook Creek will be addressed through our investigation into whether a SPDES permit will be required. (See Interim Ruling #2) Because there are no state-regulated wetlands on site, the intervenors' reference to 33 CFR Part 325, Appendix C, requiring protective measures when an activity within federal wetlands jurisdiction will impact a site eligible for the National Register of Historic Places, is not relevant in this proceeding. In any event, the Cahoon Site, the only site which OPRHP has identified as eligible for national listing, is protected under the permit conditions which OPRHP proposed and the draft permit contains. Obviously, the outcome of this proceeding does not absolve the applicant from responsibility for compliance with federal wetlands regulations.

Wildlife Issues: Consideration of the post-site investigation Bagdon Report dated December 7, 1995, (Exhibit 23), the July 21, 1995 memo from DEC Senior Wildlife Biologist Nancy Heaslip (Exhibit 24), the April 7, 1994 memo from Heaslip to Barbara Loucks (Exhibit 25) and discussions on the record of the issues conference on April 9, 1996, establishes that there is no adjudicable issue with regard to the endangered timber rattlesnake or raven. There have been no historic rattlesnake sightings within 20 miles of the area. The site visit failed to yield any suitable rattlesnake hibernating or basking habitat. Southeast-facing rock ledges with crevices suitable for hibernacula were not found, leading Bagdon's author to the conclusion that "the potential for timber rattlesnakes on the site is relatively low..."

Similarly, although Heaslip's 1994 memo reported the nest of a Common Raven, a bird of special concern under 6 NYCRR 182.6(c) but not an endangered or threatened species, this nest was apparently used by other species of bird in 1995 or was not located. And although the Bagdon Report suggests further site investigation should be performed to determine whether other avian species of concern would be impacted by the project, the site investigation apparently failed to yield any information upon which to base an offer of proof or a reason to inquire further. Therefore, we find that no adjudicable issue has been raised with regard to the impacts this project may have upon wildlife.

CONCLUSION

Although our April 9, 1996 bench ruling found that matters raised by OPRHP must be resolved in this proceeding in order that SEQR findings can be made, we now find, upon further careful review of the documents in the record, including the additional materials the applicant submitted to OPRHP, the DEIS, and applicable regulations, that these matters either will be properly addressed in adjudication of matters already found to be issues -- visual impacts and blasting, or are covered by existing draft permit conditions.

The question of whether a federal Corps of Engineers wetlands permit is required is not an issue for adjudication in the instant proceeding.

No adjudicable issue has been raised with regard to impacts upon protected wildlife.

APPEALS

Pursuant to 6 NYCRR Part 624, parties and potential parties have a right to appeal rulings of the administrative law judges in writing to the Commissioner. Faxed appeals are not permitted.

Appeals may now be taken from all issues rulings in this proceeding, which for your convenience have been listed on the attached Rulings Summary Document.

Appeal briefs must be received no later than Thursday, May 23, 1996. Reply briefs must be received no later than Friday, June 21, 1996. One copy of each submission must be received by Commissioner Michael D. Zagata, Room 608, 50 Wolf Road, Albany, New York, 12233-1010, and three hard copies, together with the brief on a 3.5" computer disk formatted in ASCII or WordPerfect, should be received at the Office of Hearings, Room 423, 50 Wolf Road, on the dates set forth above. All papers must be transmitted at the same time and in the same manner to the Commissioner and to all other parties.

Any requests for adjustments of the appeals schedule shall be made to Chief Administrative Law Judge Daniel E. Louis at the Office of Hearings.

/s/
Susan F. Weber
Administrative Law Judge

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

Dated: Albany, New York
April 22, 1996

To: Service List

ISSUES RULING SUMMARY DOCUMENT

Preliminary Rulings September 21, 1995

Ruling 1: The motion for remand or suspension because the Department failed to comply with the 1991 Mined Land Reclamation Law Amendments regarding local zoning prohibitions is denied.

Ruling 2: The Air Permit application will be considered on its merits as an issue for adjudication.

Ruling 3: An issue for adjudication has been raised by virtue of the lack of sufficient information from which it can be determined whether stormwater discharges containing industrial pollutants would take place into the Route 66 culvert and from thence to the Kinderhook Creek.

Ruling 4: The Applicant is directed to respond to OPRHP's requests for information since OPRHP's determination under 14.09 will be needed for the commissioner's SEQRA findings.

Ruling 5: CALM is granted site access for the limited purpose of assessing the site's suitability as timber rattlesnake habitat.

Interim Rulings February 22, 1996

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

Ruling 2: a. 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.

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.

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.

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.

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.

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)

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

Ruling 9: 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.

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

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.

Ruling 12: Since the balancing required by SEQR will be necessary if there are environmental impacts which cannot be mitigated, 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 may be shown 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.

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.

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.

Rulings on Party Status

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 will travel trucks going to and from the mine, 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 childrens' 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.

Final Ruling April 19, 1996

Ruling 1: Matters raised in OPRHP's March 25, 1996 letter (Exhibit 17) will not be separate issues for adjudication; visual impacts and blasting impacts upon historic resources will be addressed as part of previously determined issues (Rulings 9 and 11, Interim Rulings). Archeological impacts will be mitigated by OPRHP-approved draft permit conditions.

Ruling 2: Whether a federal wetlands permit is required for this project is not an issue for adjudication.

Ruling 3: No adjudicable issue has been raised with regard to impacts upon protected wildlife.

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