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Metro Recycling & Crushing, Inc. - Ruling, August 7, 2003

Ruling, August 7, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of METRO RECYCLING & CRUSHING, INC., for a Mined Land Reclamation Permit for a mine in the Town of Rochester, County of Ulster, pursuant to Article 23, Title 27 of the Environmental Conservation Law, and for an Air State Facility Permit

RULING ON ISSUES AND PARTY STATUS

DEC Application Nos. 3-5144-00065/00001 and 3-5144-00065/00004

August 7, 2003

SUMMARY OF RULINGS

This ruling identifies the parties and the issues for adjudication in the hearing on the application of Metro Recycling & Crushing, Inc. (the "Applicant" or "Metro") for the renewal of a mined land reclamation permit pursuant to Article 23, Title 27 (Mined Land Reclamation Act) of the Environmental Conservation Law ("ECL"), and for a modification of a previously issued permit to operate a portable jaw crusher at an existing sand and gravel mine (the "Site"). Metro has also applied for an Air State Facility Permit pursuant to Article 19 of the ECL for a portable aggregate crushing and screening plant with a maximum material processing capacity of 400 tons per hour.

The parties to the hearing are the Applicant, the Staff of the New York State Department of Environmental Conservation ("Department Staff"), and the Rochester Residents Association, Inc. ("RRA"), an association of residents in the vicinity of the Site. The RRA has raised an adjudicable issue with respect to traffic impacts associated with the larger crusher. Proposed issues that will not be adjudicated include whether mining has been abandoned, or mining operations have ceased, such that all previously permitted mining activities at the Site must be reviewed de novo, or whether such review is warranted due to a material change in permit and/or environmental conditions; air pollution impacts; noise; and the Applicant's record of compliance. The effect of the proposal on the drinking water wells adjacent to the Site will not be adjudicated, but a provision should be incorporated in the draft permit that would require the Applicant to address any contamination caused by its operations. Department Staff is directed to develop such a permit condition in consultation with the Applicant. The intervenors will be afforded an opportunity to comment upon the proposed permit condition. If such a condition cannot be agreed upon, the issue will be adjudicated.

BACKGROUND

Project Description and Location

Metro Recycling & Crushing, Inc., located at 1364 Route 9, Castleton, New York, proposes to operate a portable jaw crusher with a maximum material processing capacity of 400 tons per hour. The crusher would be placed at an existing 20.5 acre "life of mine" sand and gravel mine. Material processing (screening and crushing) was previously authorized under a permit issued by the Department, but using a smaller crusher, with a capacity of 150 tons per hour. The Site, known as "Rock Mountain Farms," is northeast of Queens Highway between Boodle Hole Road and Roberts Drive in the Town of Rochester, Ulster County.

Permits Required

By application dated January 19, 2000, the Applicant applied for a modification to a Mined Land Reclamation Law permit pursuant to ECL Article 23, Title 27, and Parts 420 through 425 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), as well as an Air State Facility Permit (ECL Article 19 and 6 NYCRR Part 201-5).

SEQRA Status and Determination of Completeness

The Department of Environmental Conservation (the "Department") is the lead agency for the review of the project under the State Environmental Quality Review Act ("SEQRA"), ECL Article 8 and 6 NYCRR Part 617. On December 15, 2000, Department Staff issued a Notice of Complete Application, indicating that a negative declaration was on file, stating that the project is an unlisted action and that the project would not have a significant environmental impact.

LEGISLATIVE PUBLIC HEARING

After duly published notice, a legislative hearing was held pursuant to 6 NYCRR Parts 617 and 621 on June 19, 2002, and was presided over by Administrative Law Judge ("ALJ") Maria E. Villa. Approximately 150 persons attended the hearing. Following a presentation by representatives of the Applicant, as well as remarks by Department Staff, seventeen individuals offered comments. Bernie Neumann, a geologist with George Marshall, LLC in Averill Park, New York, spoke on behalf of the Applicant. Mr. Neumann stated that processing of materials has always been a permitted use at the Site, and that in mid-1999, Metro applied for an air permit for larger capacity equipment, as well as a modification to the Mined Land Reclamation Permit, both at the Department's request. Mr. Neumann went on to note that a noise attenuation study was submitted in June 2000, and a response to public comments in December 2000.

The concerns expressed by members of the public focused primarily on noise and traffic impacts, particularly with respect to traffic safety issues on the secondary road serving the Site, the potential for contamination of the water supply serving a nearby subdivision, as well as Rochester Creek, a popular trout stream. In addition, speakers commented on the adverse effect of the proposed project on the quality of life enjoyed by members of the surrounding community. Speakers also noted the potential for increased air pollution due to the larger crusher, as well as the possibility of damage to historic structures as a result of the noise and vibration from heavy truck traffic, and the detrimental effect on property values. Concerns were raised about the lack of fencing at the Site, and violations of the existing permit for which the former operators had been cited.

Counsel for the Rochester Residents Association, Inc. argued that since the permit had been issued originally, a material change had occurred sufficient to require that the proposal be treated as a new application pursuant to 6 NYCRR Section 621.13. Specifically, counsel contended that mining operations at the Site had been abandoned for some years, and that residential development surrounding the Site amounted to a change in circumstances sufficient to invoke that provision of the regulations. Other speakers reiterated that the Site had not been operational for some years and, as a result, wildlife had returned to the area, and would be displaced if the proposal went forward. Speakers also mentioned the possibility of contamination from material allegedly disposed of at the Site in the 1980s, which might be disturbed by the proposed operations. All but one speaker expressed opposition to the proposed project; that speaker stated that the Site already was permitted for mining, that public opposition would not stop the project from going forward, and that the proposal would provide some employment opportunities.

Another speaker quoted from the Town's 1983 Zoning and Land Use Control Law, pointing out that the law characterized the quarries and sand and gravel pits located in the Town as an incompatible land use that should be avoided through future zoning, and detailing the efforts of residents to curtail the mining operations in the area through local government. Four persons submitted written comments at the hearing. Mark Servidone, the President of Metro Recycling & Crushing, Inc., also spoke at the conclusion of the hearing, stating that the mine had been continuously operated since Metro acquired it in 1998, and that the company had not been cited for any violations since it took title to the property.

As provided in the Notice of May 8, 2002, the filing of written comments was permitted until July 1, 2002, ten days after the hearing. A total of thirty-one letters and e-mails were received expressing opposition to the proposal, voicing concerns similar to those raised during the June 19 hearing. The Rochester Residents' Association ("RRA") submitted comments through its counsel, the law firm of Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, of Poughkeepsie, New York. Included as exhibits in that filing were further comment letters opposing the application. In addition, petitions, photographs, a videotape of the legislative hearing, and public opinion surveys were provided by Zali Win, President of the RRA.

ISSUES CONFERENCE

Conference Participants

Following the legislative hearing, Department Staff reviewed the comments received, and by letter dated January 15, 2003, requested that an issues conference be held. Pursuant to a Notice dated February 19, 2003, and published on that date in the Department's Environmental Notice Bulletin and the Daily Freeman, a pre-adjudicatory hearing issues conference was held on March 25, 2003, at the Rochester Fire House, to determine what issues, if any, within the scope of the Department's regulatory purview required adjudication and to consider all timely filed applications for party status to participate in any adjudicatory hearing which might be convened in this matter. The Notice also provided that any further written comments would be accepted up to and including the date of the hearing on March 25, but no additional written comments were received during that time.

The participants at the conference were the Applicant, Department Staff and the RRA. Although the Sylvan Water Glade Corporation filed a timely petition for full party status, at the issues conference, Stephen Lincoln, who represented the Corporation, withdrew the petition and indicated that the Corporation would join with the RRA and be represented by the RRA's counsel. Issues Conference Transcript, at pp. 48-49 (hereinafter "IC Tr. at p. ___").

The Applicant was represented by Rosemary Stack, Esq., Velasko Professional Park, Suite 2000, 5110 Velasko Road, Syracuse, New York 13215, and by Mark Servidone, the President of Metro Recycling & Crushing, Inc. Also attending on behalf of the Applicant were D.T. Froedge, of Geosonic Vibra Tech, and Jeff Lang and Brian Milliman, of Griggs-Lang Consulting.

Department Staff was represented by Jonah Triebwasser, Esq., Deputy Regional Attorney, in the Department's Region 3 Office, 21 South Putt Corners Road, New Paltz, New York 12561. Other members of Department Staff in attendance at the issues conference were Mined Land Reclamation Specialist Robert Martin; Region 3 Environmental Analysts Michael Merriman and Lawrence Biegel; Robert Stanton, P.E., Regional Air Pollution Control Engineer; and Beverly Wind, a legal intern.

The RRA was represented by George Rodenhausen, Esq., of the law firm of Rapport, Meyers, Shaw & Rodenhausen, LLP, 110 Main Street, Poughkeepsie, New York 12601. Also attending on behalf of the RRA were Charles Alongi of the Chazen Companies, traffic consultant Mark Gregory from Transportation Concepts, and Paul Rubin of HydroQuest, as well as Zali Win, the President of the RRA.

Conference Proceedings

In accordance with the Notice of February 19, 2003, petitions requesting full party or amicus status pursuant to 6 NYCRR Section 624.5(b) were to be filed by March 18, 2003. Two petitions for full party status were received, one from the RRA, and another from the Sylvan Glade Water Corporation. During a prehearing conference call among all participants on March 20, 2003, the Applicant objected to the RRA's petition as untimely, and also raised questions as to some of the individuals listed in the petition as members of that organization. After hearing argument, the ALJ accepted the petition as timely, and requested that counsel for the RRA inquire as to the membership status of the individuals in question. At the beginning of the issues conference, counsel provided some corrections to the membership listed in the petition, stating that two individuals that were not part of the RRA should be deleted from that Exhibit. IC Tr. at pp. 36-38.

During the conference call on March 20, 2003, argument was also heard concerning the RRA's request for an adjournment, which was made by letter dated March 19, 2003. The RRA requested the adjournment to allow additional time to review the Applicant's noise study, which the RRA received that day. At the issues conference, the RRA renewed the request for an adjournment, stating that its noise expert was not in attendance, and that he had not yet had an opportunity to review the study. The Applicant strongly objected, pointing out that the Applicant's noise expert was present at the conference, and was prepared to proceed as scheduled, after having the same amount of time to prepare a response to the issues raised in the RRA's petition. Following discussion, it was agreed that the RRA would provide its comments on the noise study in writing on April 7, 2003, with an opportunity for the Applicant and Department Staff to respond on April 21, 2003. The conference then focused on the various issues asserted by the RRA to be both substantive and significant and therefore appropriate for adjudication pursuant to 6 NYCRR 624.4(c).

RULINGS ON PARTY STATUS

The Applicant and the Department Staff are automatically full parties to the proceeding pursuant to 6 NYCRR Section 624.5(a).

With respect to the RRA, as provided in 6 NYCRR Section 624.5(d), and as applicable to this matter, to be entitled to full party status a determination must be made that a petitioner has:

  1. Filed an acceptable petition pursuant to 6 NYCRR Sections 624.5(b)(1) and (2);
  2. Raised a substantive and significant issue; and
  3. Demonstrated an adequate environmental interest.

The RRA is a not-for-profit corporation consisting of residents of the Town of Rochester, in Ulster County. According to the RRA's petition (IC Exhibit 5), most of the RRA members' residences are in the vicinity of the Site. The RRA's petition states that the organization opposes the project, because in the RRA's view, it will be detrimental to the environmental and natural resources of its members, and will affect their health, safety and welfare. At the issues conference, the Applicant and Department Staff did not raise any objection to the RRA's environmental interest in this matter.

Upon the record, I hold that the RRA has met the requirements of 6 NYCRR 624.5(d) in that it has filed a petition that comports with the requirements of 6 NYCRR 624.5(b)(1) and (2), raised an issue with respect to traffic impacts that is both substantive and significant, and demonstrated an adequate environmental interest. Accordingly, the RRA is granted full party status in this proceeding.

STANDARDS FOR ADJUDICABLE ISSUES

Pursuant to 6 NYCRR Section 624.4(c), an issue is adjudicable only if it (1) relates to a dispute between the Department Staff and the Applicant over a substantial term or condition of a proposed draft permit; (2) relates to a matter cited by the Department Staff as a basis to deny the proposed permit and such matter is contested by the Applicant; or (3) is proposed by a potential party and is both substantive and significant.

An issue is substantive if there is sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to the proposed project, such that a reasonable person would require further inquiry. In determining whether such sufficient doubt exists, the ALJ will consider the issue in light of the permit application and related documents, such as the proposed draft permit, the content of any petitions filed for party status, the record of the issues conference, and any subsequent written arguments authorized by the ALJ.

An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.

Pursuant to 6 NYCRR Section 624.4(c)(4), where the Department Staff has reviewed a permit application and finds that the Applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party to demonstrate that the issue proposed is both substantive and significant. This burden of persuasion is met by an appropriate offer of proof. As stated by the Commissioner, "the offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." In the Matter of Halfmoon Water Improvement Area, Decision, 1982 WL 25856, *2 (April 2, 1982). Thus, it is the RRA's burden to demonstrate that the issues it has raised are adjudicable.

DISCUSSION AND RULINGS

The RRA's petition for party status (IC Exhibit 5) raised a number of proposed issues. In its petition, the RRA argued that mining at the Site had been abandoned for a period in excess of five years, without notification to the Department and without any provision for such abandonment in the mined-land use plan approved by the Department. According to the RRA, the abandonment of mining mandated that the project be evaluated as a new application, with consideration of the environmental impacts that would result from the mining operation in its entirety, not simply the larger crusher. The RRA proposed to offer testimony of residents, who are members of the RRA, that there has been no activity at the site since the mid-1990s. The RRA also argued that the application is not for a project of a continuing nature pursuant to 6 NYCRR Section 621.13(i), and thus must be denied and/or treated as a new application.

In addition, the RRA took the position that the renewal/modification is a new application, because it involves a material change in existing permit conditions or in the scope of the permitted actions, and/or there is newly discovered material information or a material change in environmental conditions since the issuance of the existing approvals. The proposed intervenors pointed out that since 1996, additional residential development had occurred in the area surrounding the mine. According to the RRA, this development mandates a closer look at the activity proposed by Metro, due to the potential adverse effects that may be anticipated if the larger crusher is permitted.

The RRA's petition stated further that the permitting and operation of the larger crusher would adversely affect the health, safety and welfare of the RRA's members as a result of increased air pollution, noise, and traffic, and the potential for contamination of the residents' potable water supply. In addition, the RRA contended that the proposal was incompatible with the existing community land use and character in this rural, residential zoning district.

Department Staff and the Applicant objected to the petition as a whole, countering that the proposal complied with all regulatory requirements. The Applicant and Department Staff also objected to any discussion of issues other than air quality and noise, arguing that matters concerning traffic, hydrogeology, and community character were not related to the permitting of the larger crusher and, thus, were irrelevant and outside the scope of the hearing. IC Tr. at pp. 89, 90, 127, 163, 179, 185. The following discussion addresses each of the issues raised in the RRA's petition.

Abandonment of Mining

The RRA contended that Metro's application to renew or modify the permit issued to the Site's prior owner, Rock Mountain Farms, should be denied because no mining has taken place at the Site since approximately 1997. The RRA proposed to offer the testimony of a number of individuals who reside near the Site that there has been no mining activity since that time. IC Tr. at p. 210. According to the RRA, this lack of activity constitutes abandonment within the meaning of ECL Section 23-2705. The statute defines "abandonment" to mean

[t]he cessation of mining and reclamation activities on land affected by mining without prior notification to the department of such cessation of activities or without describing such cessation in a mined-land use plan approved by the department, and after opportunity to be heard.

ECL Section 23-2705(1).

The RRA argued further that, given the lack of activity at the Site, the renewal sought should be denied, or treated as a new application, because the project fails to qualify for an extension of an existing permit pursuant to Section 621.13(i) of 6 NYCRR. That provision allows for an extension of the expiration date of an existing permit, pursuant to Section 401(2) of the State Administrative Procedure Act ("SAPA"), "when a permittee has submitted a timely and sufficient application for renewal of a permit for an activity of a continuing nature . . . . Projects of a continuing nature are those involving an ongoing, operational activity." According to the RRA, the lack of mining activity at the Site deprives the Applicant of the protections of this "safe harbor" provision, and the permits sought must be denied, or subjected to the heightened level of scrutiny afforded a new application.

At the issues conference, Department Staff took the position that mining at the Site had not been abandoned, noting that a temporary operational hiatus is not uncommon in the mining industry, that the bond for the Site is in place, and that all regulatory fees have been paid. IC Tr. at p. 218. Robert Martin, Region 3 Mining Specialist, stated that the permit was transferred in July 1999, and that the Department has before it an application for a renewal and a modification. IC Tr. at pp. 217-18. Mr. Martin acknowledged that the Site had not been active for a period of time before Metro acquired the property, but went on to state that "[i]t is very evident to the Department that these people are waiting for the proper equipment to reactivate the mine to ensure proper reclamation of this site." Id. Mr. Martin concluded that, in his opinion, the Site had not been abandoned, and stated that the Department had not even considered citing the Applicant for abandoning mining at the property. IC Tr. at p. 218.

The Applicant asserted that the Site had not been abandoned, noting that market demand determines when a mining site such as this one will be operational, and that such demand can fluctuate. IC Tr. at pp. 234-35. Mr. Servidone, Metro's president, stated that material had been removed from the Site on a number of occasions, beginning in July 1999 through May 2002, and provided documentation to that effect. IC Tr. at pp. 231-33; IC Exhibit 15. The Applicant also offered documents concerning the vandalism of a piece of equipment at the Site in 2002 to support its argument that machinery is present at the Site, and that mining activity is taking place there. IC Tr. at pp. 235-40; IC Exhibits 16A-C; 17A and B. Mr. Servidone stated that the machinery had been brought to the property to excavate and load material. IC Tr. at 235-36. Furthermore, the Applicant asserted that Metro had made a significant financial investment in the Site, and would not have had any reason to abandon the property. IC Tr. at pp. 241-42.

Ruling: The record does not support the RRA's contention that the Site has been abandoned, or that the activity permitted is not of a "continuing nature," and, thus, should be ineligible for a permit renewal or modification. Department Staff and the Applicant argued persuasively that, since Metro acquired the Site, the Applicant has been pursuing the requisite regulatory approvals to conduct operations there, and that those actions are inconsistent with abandonment. Neither the statute nor the regulations contain any limitations with respect to the amount of time that mining may be suspended at a particular site, and the petitioners have not cited to any authority to support their contention that an operator must conduct continuous operations at a mining site to avoid permit lapse. Thus, no adjudicable issue is raised. Cf. Stephentown Concerned Citizens v. Herrick, 246 A.D.2d 166, 170 (3rd Dept. 1998), lv. dismissed in part and denied in part, 96 N.Y.2d 881 (2001) (in zoning case, where mining operator continued mining at site after expiration of second permit with the Department's explicit consent, no discontinuance of non-conforming use was found).

The RRA's abandonment argument is related to the points in its petition concerning the development of the land surrounding the mine site during the 1990s, and the assertion that as a result, the entire operation should be subject to review in this proceeding due to the changed circumstances at the Site. As discussed below, the RRA's position is not supported by the language of the Department's statutes and regulations, or applicable precedent.

"Material Change"

In its petition, the RRA maintained that the residential development adjacent to the mine constituted a change in environmental conditions, and newly discovered information, such that the permit sought should be treated as a new application. The RRA cited to Section 621.13(e) of 6 NYCRR, which provides that the Department may determine to treat an application for renewal or modification as a new application for a permit if:

  1. the application involves a material change in existing permit conditions or in the scope of the permitted actions;
  2. there is newly discovered material information or there has been a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the existing permit;
  3. an opportunity for public comment and/or hearing is required by law or is deemed necessary by the department;
  4. the renewal application is not timely or sufficient.

6 NYCRR Section 621.13(e)(1) through (4). At the issues conference, the RRA noted that during the 1990s, houses were built on the land surrounding the mine. That land is zoned residential. IC Tr. at p. 213. Some of the houses are within 200 feet of the edge of the mine. IC Tr. at pp. 213-14. The RRA's petition also noted that the Department's records contained a 1992 report by the engineer retained by the prior permittee, indicating that the area surrounding the mine was "generally vacant," and "relatively isolated." Exhibit 5, at pp. 4-5. The RRA argued that over the years, the Department had allowed numerous modifications of the initial permit's conditions and scope, to the detriment of the surrounding community.

As part of its response to the RRA's arguments, Department Staff introduced documentation concerning the residential development next to the Site. According to Mr. Merriman, Region 3 Permit Analyst, a 1994 map shows thirteen residential lots in an area immediately adjacent to the north side of the mine. IC Tr. at p. 222; IC Exhibit 13. Mr. Merriman went on to observe that in 1994, the Department was processing Rock Mountain Farms's application to expand the existing 4.9 acre mine to a total of 18.4 acres, into an area next to the subdivided lots. IC Tr. at p. 223; IC Exhibit 14.

The Notice of Complete Application for the proposed expansion states that "crushing and screening has been and will continue to be part of this operation." IC Exhibit 14; IC Tr. at p. 225. Department Staff also introduced documentation indicating that the Town of Rochester provided public notice with respect to the proposal, and ultimately approved the expansion. IC Exhibit 14; IC Tr. at p. 226-27. Department Staff contended that, given this notice, the RRA members could not now be heard to argue that the expansion of the mine into a residential area, or the presence of homes adjacent to the mine site, constituted newly discovered information or a change in environmental conditions since issuance of the existing permit in 1995. IC Tr. at pp. 226-28. The Applicant agreed with Department Staff's position, contending that the mine site was obvious to prospective residents, and that the construction of residences adjacent to the property was not a sufficient basis to discontinue mining at the Site. IC Tr. at p. 249.

In rebuttal, the RRA argued that it was not clear whether the residential lots shown on the documents provided by Department Staff had actually been built in 1994, and that it was necessary to inquire further into the actual activities that the Applicant maintained were taking place at the Site. IC Tr. at pp. 250-53.

The RRA also argued that Metro had not submitted timely renewal application to the Department. In response, the Applicant provided correspondence from Department Staff indicating that the renewal was, in fact, timely and stating that Metro was entitled to avail itself of SAPA's "safe harbor" provision. IC Tr. at p. 247-48; IC Exhibits 18 and 19.

Ruling: The language of Section 621.13(e) is discretionary, not mandatory. The regulation provides that the Department "may," if circumstances warrant, treat an application to renew or modify a permit as a new application. Given this language, as well as the arguments advanced by the Applicant and Department Staff, the offer of proof by the intervenors is inadequate to raise a substantive and significant issue whether this application should be subjected to heightened scrutiny based upon the four factors enumerated in Section 621.13(e).

The RRA first argues that the application to permit a larger crusher constitutes a material change in permit conditions and, thus, should be treated as a new application. Prior decisions of the Commissioner, as well as case law, make clear that, with respect to this section of the regulations, "[w]hat constitutes a 'material change' in permit conditions . . . requires evaluation of factual data within DEC's expertise and DEC's interpretation is thus to be given deference unless unreasonable." Scenic Hudson, Inc. v. Jorling, 183 A.D.2d 258, 262 (3rd Dept. 1992) (citations omitted); Matter of the Application of Superintendent of Fish Culture, 1999 WL 1008317, *12 (Interim Decision of the Deputy Commissioner, Aug. 19, 1999).

The record reveals that, in evaluating the application, Department Staff did take into account the residential housing that had developed on the land adjacent to the Site. By letter dated July 24, 2000, Environmental Analyst Lawrence Biegel advised the Applicant that comment letters and field verification by Department Staff indicated that there had been a "material change in environmental conditions" pursuant to part 621.14.(a)(4), and that, as a result, Department Staff determined that a permit modification would be required. IC Exhibit 18. The letter requested additional information from Metro's consultant about the berms proposed for the Site, reduced hours of operation as a noise mitigation measure, and stormwater handling. Id. In addition, Mr. Biegel asked that the Applicant respond to the concerns raised in the comment letters received. Id.

On this record, it cannot be said that Department Staff's determination to require additional information and a permit modification, rather than an entirely new application, was irrational, or legally erroneous. The RRA's offer of proof to the contrary is not sufficient to disturb that determination. A substantive and significant issue with respect to a "material change" in permit conditions or environmental conditions has not been raised.

In addition, review of the Town's decision to allow mining to coexist in a residential area is outside the scope of this proceeding. See Town of Poughkeepsie v. Flacke, 84 A.D.2d 1, 5-6 (2nd Dept. 1981), lv. denied, 57 N.Y.2d 602 (1982) (Department's jurisdiction under the ECL does not include the authority to adjudicate legal issues concerning compliance with local zoning); Matter of 4-C's Development Corp., 1996 WL 566235, *3 (Decision, May 1, 1996) ("It is well established that interpretation of zoning codes, issues of prior non-conforming use, and similar questions need to be decided by the local government having jurisdiction, subject to judicial review if necessary"); Matter of Preble Aggregate, Inc., 1996 WL 566256, *8-9 (Commissioner's Decision, July 19, 1996) (Department would not rule on zoning ordinance or assess land-use policies). Prior regulatory approvals by the Town and the Department were the subject of public notice. Under the circumstances, the growth of residential housing surrounding the Site cannot be considered a material change in environmental conditions sufficient to invoke the provisions of Section 621.13(e).

The RRA's petition did not advance any arguments in connection with subdivision (3) of the regulation (opportunity for public comment/hearing), nor were any arguments made at the issues conference in that regard. Finally, the RRA's argument that a timely renewal application by Metro was not received also fails, in light of the documents introduced to the contrary, and because the Department's determination in this regard is "usually found to be discretionary." Scenic Hudson, 183 A.D.2d at 262.

Air Quality

The RRA argued that the project is not eligible for a "minor facility registration under 6 NYCRR 201-1.4," but rather must secure a permit for a "major source" as defined in Title V of the federal Clean Air Act. Petition, at ¶ 8. In addition, the RRA maintained that the impact of dust levels on adjacent residences, specifically with regard to particulate matter, had not been adequately addressed. As part of its offer of proof, the RRA's consultant, Charles Alongi, stated that the Applicant failed to identify the total particulate matter emission rate, and that, based upon his calculations, total particulate matter would exceed the threshold for a Title V permit. The consultant concluded that a Title V permit was required. These contentions were detailed in an affidavit which was included as part of the RRA's petition, and Mr. Alongi also spoke at the issues conference. Specifically, Mr. Alongi stated that his calculations showed that the proposal would result in a potential to emit of 287 tons per year, and noted that the Title V threshold is 100 tons per year. IC Tr. at p. 54.

The RRA argued that any evaluation of the larger crusher's potential to emit must take into account the increased size of the crusher, which, in the RRA's view, could potentially be operational full time. IC Tr. at p. 55. The RRA's counsel acknowledged that the Applicant has indicated that the crusher will not operate continuously, but maintained that, other than restrictions on the hours of operation, the draft permit does not place limits on the amount of time that the crusher could be used. Id. The RRA took the position that, as a result, the Department must consider a worst-case scenario, where the crusher would run full time. IC Tr. at pp. 55-56. In addition, the RRA expressed concern that the Applicant had not included all the potential sources of particulates. Thus, given the crusher and screening system's potential to emit, the RRA argued that the 100 ton threshold would be exceeded. IC Tr. at p. 56. The RRA pointed out that the Applicant had not proposed or accepted a cap, nor had the Department imposed a cap on emissions from the proposed larger crusher. Id.

The Applicant's counsel offered the comments of Dean Herrick, who was not present at the issues conference. Counsel indicated that she had spoken with Mr. Herrick, who pointed out that Mr. Alongi's calculation was based upon particulate matter, or PM, rather than PM10, which which refers to coarse particulate matter less than or equal to 10 microns in diameter. IC Tr. at pp. 63-65. The Applicant maintained that the criteria pollutant under consideration in connection with its proposal is PM10, and that Metro had performed its calculations for that pollutant based upon 24-hour per day, 365 day per year full production, without exceeding the 100 ton threshold. Id.

In further support of its position, the Applicant cited to 6 NYCRR Section 202-2.1(b), Table 2, which sets forth the facility reporting thresholds for attainment areas, observing that the constituent referenced in that Table is PM10, not total particulate matter. IC Tr. at pp. 65-66. In addition, the Applicant referred to a page from the EPA Website (Green Book Criteria Pollutants), which indicated that since 1987, EPA has used PM10, as the indicator for suspended particulates in ambient air. IC Tr. at p. 66. The Applicant emphasized that the calculations submitted to the Department in connection with the proposal assumed 24 hour per day, 365 days per year operations, and that the actual operating scheduled would be much less, because of the limitations on hours of operation in the permit. IC Tr. at p. 67.

Department Staff, through its air engineer, Robert Stanton, stated that the Air State Facility Permit was appropriate, and that the potential to emit from the proposed operation would be below 100 tons per year. IC Tr. at p. 59; IC Exhibit 8. Mr. Stanton indicated that Department Staff used the Environmental Protection Agency ("EPA") Compilation of Air Pollutant Emission Factors, AP-42, Fifth Edition, Volume I: Stationary Point and Area Sources ("AP-42") in arriving at this conclusion. IC Tr. at pp. 59-60; IC Exhibit 9. AP-42 states that while "no data are available" to estimate total suspended particulates, the guidance recommends a multiplier of 2.1 in projecting emissions levels for PM10 in connection with rock crushing and processing operations. IC Exhibit 9, Table 11.19.2-2, fn. c; IC Tr. at pp. 60-62. Mr. Stanton acknowledged that there is "a lot of confusion" with respect to the use of PM10 versus total particulate matter, but stated that the facility would be below the Title V threshold for either pollutant. IC Tr. at pp. 70-71.

The Applicant asserted that AP-42 is used to assess all mining operations throughout the country, without regard to the type of material processed, and that the proposal met all regulatory requirements. IC Tr. at pp. 87-88. The Applicant pointed out that EPA has adopted AP-42 as a national emissions standard, and that under Section 202-2.4(a)(3) of 6 NYCRR, a national emissions standard is an appropriate method to estimate annual emissions. IC Tr. at p. 68. The Applicant argued further that the RRA's use of an emission factor for asphalt plants in its calculation was speculative, and that the RRA's expert lacked expertise with respect to air permitting for mining facilities. IC Tr. at pp. 68-69. Finally, both the Applicant and Department Staff observed that the draft permit contains provisions to control dust, including water spray bars on crushing units, and watering haul roads during dry conditions. IC Tr. at pp. 68-69; IC Exhibit 24. According to Mr. Stanton, the prior permit did not contain these provisions. IC Tr. at p. 112.

Mr. Alongi responded that he had experience spanning 19 years in air permitting and estimating emission rates for a variety of sources, including sources that generate particulates. IC Tr. at p. 74. According to the consultant, AP-42 lacks sufficient specificity, and consequently is less reliable as a standard for an operation such as the one proposed by the Applicant. IC Tr. at pp. 74-75. Mr. Alongi argued that a number of factors, such as stone type, moisture content, feed size and distribution, throughput rate, crusher type, size reduction and fines content affect particulate emission rates, and opined that, given the unreliability of the emission factors for such materials, an analogy to a hot mix asphalt plant would yield a more appropriate measure of particulate emissions in this case. IC Tr. at pp. 74-76. The consultant noted that the only emission factor provided in AP-42 is for primary crushing, and the activity proposed at the Site is secondary crushing. IC Tr. at p. 76. Mr. Alongi acknowledged that he did not know whether the Applicant planned to conduct some activities, such as fines crushing or screening, but that emission rates for such activities, as well as truck loading and unloading, should have been included in the application. Id. The RRA's consultant also contended that the application was incomplete, because no range code was provided for total particulates. IC Tr. at p. 78.

With respect to modeling for air impacts, Department Staff observed that none of the mining operations in the Region has a Title V permit, either because emissions do not reach the threshold, or because the facilities cap out. IC Tr. at pp. 83-84. Thus, in Department Staff's view, no modeling should be required. Id. Department Staff went on to state that because loading material onto trucks is exempted under the regulations, this activity was not considered in determining Title V applicability. IC Tr. at pp. 91-92. The Applicant stated that Metro had met all regulatory requirements, and that any consideration of emissions beyond that expected from the proposed crusher was outside the scope of the hearing. IC Tr. at pp. 88-90. Mr. Servidone, Metro's president, stated that the larger crusher would not necessarily increase the number of truck trips, because the use of the crusher would be dictated by market demand. IC Tr. at 100.

Finally, the RRA argued that adverse health effects, specifically, silicosis, could be anticipated if the proposal were approved. IC Tr. at pp. 90-98. The RRA offered the comments of Paul Rubin, a hydrogeologist, who opined that modeling air emissions is not necessary, because impacts were observable even with a smaller scale operation at the Site. IC Tr. at p. 96. Mr. Rubin contended that the dust resulting from mining activities could cause respiratory problems. IC Tr. at p. 97. Department Staff, in response, stated that they had not received any dust complaints, reiterated that the draft permit incorporated additional dust control measures, and objected to Mr. Rubin's qualifications. IC Tr. at pp. 99, 111, 106. The RRA responded that given the lack of mining activity in recent years, it was not surprising that no complaints had been received. IC Tr. at p. 108.

The Applicant also objected to the consultant's qualifications, and offered statements by Gregory Lang, a mining industry consultant. IC Tr. at p. 113. Mr. Lang stated that during his 17 years as a mining consultant, he had never heard of an instance of a resident developing silicosis as a result of any of the approximately 3,000 permitted mining operations throughout the state. IC Tr. at pp. 103-04. The Applicant also reiterated that the application at hand dealt only with the increased size of the crusher, that Metro would be in compliance with more stringent air permitting standards, and that an inquiry into already permitted activities was inappropriate. IC Tr. at p. 115-16.

Ruling: The RRA's offer of proof is insufficient to advance the issue of impacts to air quality to adjudication. First, Metro has applied for an Air State Facility permit pursuant to Subpart 201-5, not a minor facility registration, as the RRA's petition appears to assert. The proposed intervenors' argument that "potential to emit" should not consider limitations on the hours of operation fails because the applicable regulation expressly states that such limitations are to be taken into account. Moreover, the RRA did not dispute the Applicant's assertion that calculations for PM10 emissions were performed assuming 24 hour a day, 365 days per year operation.

Subpart 201-5 of 6 NYCRR (State Facility Permits) is applicable to owners and/or operators of new facilities that are not exempt or trivial as those terms are defined pursuant to Subpart 201-3, or eligible for a minor source registration pursuant to Subpart 201-4, but still fall below the threshold for a Title V permit. The facility's "potential to emit" is defined at Part 200 (General Provisions) to mean

[t]he maximum capacity of an air contamination source to emit any regulated air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the emission source to emit a regulated air pollutant, including . . . restriction on the hours of operation, . . . shall be treated as part of the design if the limitation is enforceable by the department and the administrator.

6 NYCRR Section 200.1(bn). Here, the limits on hours of operation are part of the draft permit terms, and would be enforceable by the Department. Thus, the RRA's argument that potential to emit must assume continuous operation is not supported by the relevant regulation. In any event, the Applicant and Staff pointed out that the emissions calculations assumed continuous operation, and emissions from the proposed crusher still fell below the 100 ton per year threshold. The RRA's offer of proof with respect to the appropriate standard is not persuasive, given the references to PM10 in the regulations, the guidance relied upon by Metro and Department Staff, and Department Staff's contention that emissions from the crusher would not exceed the Title V threshold using either total particulate matter or PM10.

The RRA has not demonstrated that the use of emission factors for a hot mix asphalt plant would be more predictive, and the offer of proof with respect to the type of stone to be mined is insufficient to raise an adjudicable issue, particularly since the RRA's consultant acknowledged that a number of the activities in question might not take place at the Site. Moreover, the dust suppression measures in the draft permit will further reduce particulate concentrations. Finally, the RRA's offer of proof with respect to the health effects to be anticipated from the larger crusher fails because it was based on statements by an individual lacking the necessary credentials to address this issue, and whose statements lacked a sufficient foundation to be convincing.

Noise

Section 422.2(a) of 6 NYCRR requires that a mining plan include a description of "the applicant's proposed method of mining including proposals for minimizing the effect of mining on the environment and on the property, health, safety and general welfare of the people of the State." More specifically, 6 NYCRR Section 422.2(c)(4)(i) provides that noise control may be accomplished in part "through the utilization of equipment which is adequately muffled to prevent excessive noise and vibration; and through the use of screening for control of dust and/or noise." Section 422.2(c)(4)(iii) provides that screening "may consist of either artificial or natural barriers such as berms." The Department has also issued a Program Policy and Guidance Memorandum entitled "Assessing and Mitigating Noise Impacts," DEP-00-1, rev. 2/2/01 ("Noise Guidance"), which presents noise impact assessment methods, examines the circumstances under which sound creates significant noise impacts, and identifies avoidance and mitigation measures to reduce or eliminate those impacts.

As noted above, the Applicant's noise study was the subject of written submissions following the issues conference. In its petition, the RRA contended that there were a number of deficiencies in the Applicant's submissions with respect to noise impacts, but because the most recent noise study, dated February 25, 2003, was received shortly before the issues conference, the petition did not address that study. Instead, the RRA provided written comments on the more recent study on March 28, 2003 through its expert, Lewis S. Goodfriend of Lewis S. Goodfriend & Associates (the "Goodfriend Letter"), to which the Applicant and Department Staff responded.

In its submission, the RRA contended that the February 25, 2003 Noise Impact Assessment (the "Noise Assessment") did not comport with the Department's Noise Guidance. The RRA argued that the baseline level for ambient noise measurements is not, as the Noise Assessment assumed, the existing plant operations. Instead, according to the RRA, the ambient noise level should be "the sound level in the moments before the plant begins operation in the morning and the moments after the plant shuts down at night." Goodfriend Letter, at ¶ 1. Given this, the RRA contended further that the predicted noise levels for the new crusher, at many locations, would be well above those suitable for residential purposes, and were expected to exceed 10 decibels above the ambient noise level the RRA assumed.

The Goodfriend Letter also identified other alleged deficiencies, stating that (1) the sound pressure levels for the Caterpillar 3412 generator set were not presented in the Noise Assessment; (2) a map showing the noise receptor and berm locations was not bound into the report; (3) the Appendix did not include computations for the effect of the various noise barriers proposed, including a 10-foot high berm to be constructed in the southeastern portion of the life-of-mine area; and (4) the A-weighted octave band sound pressure levels were not shown summed.

The Applicant's response addressed each of these deficiencies, pointing out that the missing information was, in fact, included in the Noise Assessment, and noting that the RRA's submission did not suggest that the permit should be denied or that the Noise Assessment's conclusions were incorrect. IC Exhibits 23A and 23B. The Applicant disputed the RRA's assertion with respect to the ambient noise level, countering that "the comparison of noise levels from the existing permitted operation to those which would be produced from the 400 tph crusher was correct." IC Exhibit 23A, p. 2; IC Exhibit 23B.

The data contained in the Applicant's Noise Assessment indicates that "direct substitution of the proposed crushing plant for the currently permitted crushing plant, without implementation of any other mitigation measures, will result in a sound level decrease of up to 4 dBA at nearby receptors." IC Exhibit 20, at Section 8.0, p. 16. Further, the Noise Assessment states that the 400 ton per hour crusher would reduce the actual time that the crusher would operate by over 60%, thus reducing noise exposure. Id. In addition, the Applicant has proposed several additional mitigation measures to reduce noise impacts. These include the construction of berms; reduced hours of operation; the use of mufflers, sound-dampening liners on the crusher, and infrared backup alarms on mobile equipment; and strategic placement of the crushing plant. Significantly, these mitigation measures were not reflected in the Noise Assessment. IC Exhibit 23B.

At the issues conference, Department Staff stated that it had accepted the Noise Assessment. IC Tr. at pp. 26-27. By letter dated April 21, 2003, Department Staff reiterated that the Noise Assessment was acceptable, noting that "the use of the new quieter crusher would be an improvement over the use of the currently permitted crushers." IC Exhibit 22. Department Staff also concurred with the Applicant's position that ambient noise refers to noise that would be produced by the crusher currently permitted at the Site.

Ruling: Noise impacts from the larger crusher will not be adjudicated. The Applicant has made a sufficient showing, which the RRA did not rebut, that predicted noise levels for the proposed crusher are below those currently approved. Moreover, the Noise Assessment does not take into account the mitigation measures proposed, which are consistent with the Department's Noise Guidance, and can be expected to reduce noise impacts even further. The issue is not significant, because it does not have the potential to result in the denial of a permit, a major modification to the proposed project, or the imposition of significant permit conditions in addition to those proposed in the draft permit.

In light of this, it is not necessary to determine what the appropriate baseline level should be. The RRA did not cite to any authority, in its petition or in the Goodfriend Letter, to support its contention that the RRA's proposed baseline is the more appropriate measure of noise impacts at the Site. The Department's Noise Guidance states that "[f]or existing facilities, the program specialist will determine the need for additional mitigation measures to control noise effects either in response to complaints or other changes in circumstances such as new noise from existing facilities or a change in land-use proximal to the facility." Noise Guidance, Section IV, p. 6. This section of the Noise Guidance acknowledges that noise impacts must be evaluated, and additional mitigation measures proposed, in response to complaints or changed circumstances, but does not imply that a return to a non-operational ambient noise baseline would be appropriate under those circumstances.

The RRA's arguments in this regard are not sufficient to raise an adjudicable issue. The statement in the Goodfriend Letter states that an increase of 10dB above true ambient noise levels is "expected," but does not provide any comparison or references to support this conclusion. Moreover, other than stating briefly in its petition that the permit should be denied, the RRA has not indicated what, if anything, it would propose if it were to prevail on this issue. Accordingly, noise impacts will not be adjudicated.

Hydrogeology

The RRA argued that the draft permit failed to assess adequately the impact of the proposed mine on groundwater quality or quantity in the surrounding area. The proposed intervenors asserted that the increased extraction of material that would result from permitting the larger crusher could adversely affect drinking water wells. Moreover, according to the RRA, groundwater could be threatened by petroleum spills from trucks used to haul material, or from refueling vehicles.

The RRA's offer of proof consisted of the affidavit of hydrogeologist Paul A. Rubin, of Hydroquest (the "Rubin Affidavit"), as well as a presentation by Mr. Rubin at the issues conference. According to the Rubin Affidavit, due to the proximity of the mine site to the Sylvan Glade water supply wells, the hydrogeology of the Site and its relationship to the water supply wells has not been adequately characterized. The RRA contended that the wells downgradient of the Site are extremely vulnerable to contamination from the proposed operations. Mr. Rubin took the position that prior to the issuance of any approvals for the proposal, complete hydrogeologic testing and characterization of the aquifer should be conducted, as well as an assessment of the risk of contamination and adequacy of remediation in the event of a spill.

At the issues conference, Mr. Rubin raised several concerns with respect to the proximity of the wells to this Site, including the high transmissibility of the soils, and the possibility that the actual groundwater flow path could be under 250 feet from the mine to the wells. IC Tr. at pp. 143-45. In addition, Mr. Rubin opined that the pumping of water associated with the use of the wells increases the hydraulic gradient, which, in his opinion, is already significant given the topography of the Site. IC Tr. at pp. 146-47. Mr. Rubin made an analogy to a situation in British Columbia, where the aggregate mined was mixed with salt. IC Tr. at p. 148. The salt stored at the facility ultimately made its way to the groundwater and contaminated a municipal water supply. IC Tr. at pp. 148-49. Mr. Rubin reiterated that a hydrogeologic study should be performed, and that provision for an alternate water supply should be made. IC Tr. at p. 150.

The Rubin Affidavit stated that contaminants from a spill could reach the 34 drinking water wells in the Sylvan Glade water supply within one week under normal groundwater flow conditions, and that there have been instances in the past associated with operations at the Site where such contamination has occurred. According to Mr. Rubin, because the distance between the Site and the wells is so short, monitoring wells installed downgradient of the Site may not be sufficient to detect contamination in time to protect the wells. Given the uncertainties associated with groundwater characterization at the Site, Mr. Rubin took the position that further study was mandated.

Department Staff maintained that Special Condition 9 in the proposed permit was sufficiently protective, and that the RRA's proposed issue should not be advanced to adjudication. Department Staff pointed to the provisions in the draft permit that (1) prohibit on-site fuel storage; (2) require that any fueling of on-site vehicles be performed in a manner that would prevent any spills on the mine floor; (3) require a spill containment kit; and (4) require that any spill be reported in one hour, less than the time required under the Department's regulations. Department Staff went on to note that the draft permit prohibits Metro from storing any waste fuels, chemicals or lubricants on the Site. IC Tr. at p. 157; IC Exhibit 24. Mr. Martin, the Region 3 Mined Land Reclamation Specialist 2, stated that while he agreed with Mr. Rubin's conclusions concerning groundwater flow and distances, he had concluded that a sixty-foot buffer of sand and gravel existed between the mine floor and the groundwater table, based upon his review of the materials submitted with the application, and the original elevations of the groundwater system, which were done by an engineer. IC Tr. at pp. 159-62. Department Staff took the position that the RRA's offer of proof was too speculative to raise an adjudicable issue. IC Tr. at p. 162.

The RRA responded that the measures in the draft permit would not be sufficiently protective of the drinking water supply. IC Tr. at pp. 154-55. Mr. Rubin contended that there was reason to believe that the depth to groundwater was less than sixty feet, and that a bedrock outcrop might serve as a hydrologic barrier which diverted the underground spring water. IC Tr. at p. 170-71. According to Mr. Rubin, further study is necessary to characterize properly the Site's groundwater adjacent to this public water supply. IC Tr. at p. 172-3.

The Applicant reiterated that the RRA's concern had already been considered when the permit was issued and renewed and was not an appropriate subject for the issues conference. IC Tr. at p. 163. The Applicant took the position that the only appropriate consideration was whether the proposed crusher would affect hydrology or water quality in any way. Id. Mr. Lang, of Griggs-Lang Consulting, opined that the crusher would not affect groundwater, and stated that he was familiar with a study of groundwater quality that examined over approximately 1000 sand and gravel mining operations in the State. IC Tr. at p. 165. Mr. Lang stated that the study concluded that there were no impacts that could be attributed to mining activities from either a quantity or quality standpoint. Id.

The Applicant reiterated that mining at the Site would be driven by market demand, and that the larger capacity crusher simply made the operation more efficient, and that fuel consumption would not increase. IC Tr. at p. 166. The Applicant argued that the RRA had not shown a sufficient similarity between this Site and the British Columbia case, and also contended that the earlier instances of contamination had not been proven. IC Tr. at p. 167. The RRA responded that it was prepared to offer testimony concerning that contamination, and that the principles of hydrology applicable in the British Columbia case were universal. IC Tr. at p. 171-72; 175. Finally, the RRA asserted that a larger facility, with a larger generator set, would consume more fuel, with a corresponding increased risk of contamination of downgradient wells. IC Tr. at p. 178. Under the circumstances, the RRA argued that, at a minimum, some contingency plan to supply drinking water should be adopted. IC Tr. at p. 173.

Ruling: Given the proximity of the drinking water wells serving the residents adjacent to the Site, and the RRA's offer of proof with respect to this issue, it is appropriate to require that the draft permit contain a provision that would address the possibility of contamination of the wells as a result of operations at the Site. Nevertheless, given the RRA's own acknowledgment that monitoring wells are unlikely to provide sufficient protection, adjudication of this issue, with the possibility of ultimately requiring that the Applicant characterize the Site's groundwater, might not be a productive exercise. Adjudication may be avoided if the draft permit includes a condition, for example, requiring the Applicant to provide potable water to adjacent landowners if the wells become contaminated, "unless and until the Applicant can demonstrate to the satisfaction of the Department that its mining operation is not a contributing cause." Matter of Empire Bricks, Inc., 1990 WL 179755, *1 Interim Decision (Aug. 1, 1990) (finding no issue where Applicant agreed to permit condition).

Department Staff did not dispute the RRA's expert's conclusions with respect to the direction or rate of groundwater flow. While both the Applicant and Department Staff contended that the likelihood of spills at the Site was remote, pointing out the depth of the buffer zone, this, without more, is not sufficient to address concerns with respect to the groundwater which provides the public water supply. In fact, the unlikelihood of a spill argues for a permit condition which the Applicant may never have to satisfy. The opinions offered by the Applicant's expert with respect to the study of mining operations statewide were not sufficient to overcome the Site-specific concerns raised by the RRA, particularly in light of the Applicant's contention that conditions at other Sites are too speculative to be of value in assessing the risk of contamination at this mine. Under the circumstances, a permit condition to provide additional groundwater protection, through a contingency plan or some other means, should be imposed. If agreement cannot be reached on such a condition, a hearing on this issue will take place.

Department Staff is directed to develop a permit condition to address this issue, in consultation with the Applicant, and to submit the proposed permit condition to the ALJ and the intervenors by close of business on August 22, 2003. The RRA is to provide any comments to the ALJ, Department Staff, and the Applicant by close of business on August 29, 2003.

Traffic

The RRA's petition contended that if the requested permits were granted, there would be "substantial negative impacts to public safety surrounding the site of the mine because of the location of the project on Queens Highway and the volume of truck traffic the project will generate." RRA Petition, Affidavit of Mark W. Gregory, at ¶ 5. The RRA took the position that the larger crusher would result in a greater potential for material to be produced by the operations at the Site, with a corresponding increase in truck traffic. IC Tr. at p. 199. According to the RRA, a traffic impact analysis was required to assess the risks associated with that increase. IC Tr. at p. 186.

The RRA's expert, Mark Gregory of Transportation Concepts, stated that Queens Highway, the road from State Route 209 to the Site, had no center line, a number of curves, and was hilly. IC Tr. at p. 187. Mr. Gregory said that this narrow road also had no shoulders, and no posted warnings, as well as road side hazards such as trees and telephone poles. IC Tr. at pp. 188-89. In addition, Mr. Gregory stated that there is a crest just north of the Site which limits intersection sight distance. IC Tr. at p. 189.

Mr. Gregory also opined that the hours of operation at the Site will coincide with commuter traffic times, as well as pickup and dropoff of students on school buses, with peak travel at 7:00 a.m. when the mine opens in the morning. IC Tr. at pp. 189-91, 198. The RRA noted that there had been two fatalities on the road in recent years. IC Tr. at pp. 191-92. Mr. Gregory said that a count of average daily traffic and intersection counts at the Site driveway and the intersection of Queens Highway and Route 209 would be appropriate in assessing the level of service impacts. IC Tr. at pp. 192-93. According to Mr. Gregory, there are concerns with respect to sight distance, the width of the roadway, and horizontal and vertical restrictions on Queens Highway. IC Tr. at pp. 193-95.

The Applicant and Department Staff contended that the proposed issue was irrelevant to the permitting of the larger crusher. Mr. Servidone stated that the use of the higher capacity crusher would not increase the market demand, which governs the amount of material sold from the Site. IC Tr. at p. 205. Consequently, according to Mr. Servidone, he does not expect truck traffic to increase due to the use of this equipment. IC Tr. at p. 205.

Department Staff argued that the control of traffic is outside the Department's jurisdiction, and introduced a memorandum dated October 17, 2000 from the Town of Rochester Highway Superintendent to the Chairman of the Town Planning Board. IC Tr. at p. 200-01; IC Exhibit 12. That memorandum refers to the Metro Site, and states that the bridge between the mine entrance and State Route 209 "will carry any legal load that is permitted on a state highway without a special weight permit." IC Exhibit 12. Department Staff argued that the Town, which has expertise in traffic matters, had spoken and, thus, no adjudicable issue had been raised. IC Tr. at pp. 203-04.

Mr. Gregory acknowledged that the load rating might be sufficient, but that other concerns still remained with respect to negotiating the Site driveway. IC Tr. at pp. 207-08. The RRA pointed out that Exhibit 12 dealt only with the load limit on the bridge, and did not express any opinion as to the safety of the roadway. IC Tr. at p. 208. Mr. Gregory's affidavit recommends that the Site driveway be reconstructed to provide a minimum of a ten feet wide travel lane in each direction, as well as a two foot wide gravel shoulder at the intersection of Queens Highway and the driveway, and that the driveway approach be graded. Mr. Gregory also stated that the intersection should include a reflectorized "Stop" sign and bar, and notes that the sight distances at the intersection appear to be inadequate.

Ruling: The RRA's offer of proof is sufficient to advance this issue to adjudication. While the Applicant has argued that truck traffic is not expected to increase as a result of the larger crusher, the draft permit contains no limit on truck trips. Moreover, Exhibit 12 contains only a terse statement with respect to the load limit on the bridge on Queens Highway, and does not address the points raised by the RRA concerning the potential for increased truck traffic or the traffic-related improvements the RRA suggested be made on the Applicant's property at the intersection at the entrance to the mine.

Department Staff's deference to the Town is not supported by the record. The Town's memorandum does not provide a sufficient level of detail, and does not supplant Department Staff's obligation to consider this issue. See Golten Marine Co., Inc. v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 742, 743 (2nd Dept. 1993) (negative declaration properly annulled; other agencies' obligation to analyze potential impacts of facility, including traffic, did not abrogate DEC's own obligation to do so); Matter of William E. Dailey, Inc., 1995 WL 394546, *3, Interim Decision (June 20, 1995) ("The fact that other agencies may have independent obligations to analyze the potential impacts of the facility has no bearing on DEC's own obligation, as lead agency, to analyze the existing areas of environmental concern.") While a draft environmental impact statement was under consideration in Dailey, which is not the case here, in this case Department Staff must take into account the possibility of increased trucking if the larger crusher is permitted. Department Staff and the Applicant also contended that there will be no increase in truck traffic. Since this assumption is not embodied in the draft permit, it is appropriate to subject this issue to adjudication to determine whether the potential for increased truck traffic should be addressed in the permit.

The RRA's offer of proof with respect to this issue indicates that measures may be taken to address concerns with respect to additional truck traffic. The participants are, of course, free to negotiate additional permit conditions in an effort to avoid adjudication of this issue. In the absence of such permit conditions, however, a substantive and significant issue exists with respect to traffic impacts.

Record of Compliance

The RRA argued that the Applicant's permit must be revoked, and the requested modification denied, pursuant to Section 23-2711(6) of the ECL because of the Applicant's history of non-compliance. The RRA also maintained that the prior permittee's authorization should have been revoked for non-compliance. Consequently, Metro should not have been able to seek renewal of that permit, in the RRA's view.

Pursuant to Section 23-2711(6), the Department is authorized to revoke or suspend a mining permit for repeated or willful violation of any of the permit terms or provisions of the ECL, or for repeated or willful deviation from the mined-land use plan. Further, the Department may refuse to renew a permit where there is a repeated or willful violation of any terms of the permit, Title 27, or any rule, regulation, standard or condition promulgated thereto.

Section 621.14 of 6 NYCRR authorizes the modification, suspension or revocation of a permit for, among other things, a permittee's failure to comply with any terms or conditions of the permit, exceeding the scope of the project as described in the permit application, noncompliance with permit conditions or provision of the ECL or regulations, materially false or inaccurate statements in the permit application or supporting papers, or for newly discovered material information or a material change in the environmental conditions since the issuance of the existing permit.

According to the RRA, the Department's files indicate that on October 20, 1997, the Town of Rochester issued an "Order to Remedy Violation" for mining after hours. The RRA also referred to a December 9, 1994 letter from the Department reflecting that an order on consent had been prepared to address certain violations. At the issues conference, the RRA acknowledged that no violations had taken place since 1997, and that the proposed intervenors were not aware of any violations that applied to Metro. IC Tr. at pp. 214-15. The RRA did assert that there was a town special use permit violation applicable to Metro in connection with a lack of fencing at the Site. IC Tr. at p. 215.

The Applicant countered that all of the violations alleged were attributable to the former owner and operator of the Site, Rock Mountain Farms, and that the two entities are not associated with one another. Thus, according to the Applicant, the RRA's offer of proof was fatally defective. With respect to fencing, the Applicant pointed out that there was no requirement in the mining plan or the MLRL that the Site be fenced, and that Metro had not been cited for any violations at the Site by the Town or by Department. IC Tr. at p. 244-46.

Department Staff concurred with the Applicant, noting that the Department's guidance on an Applicant's record of compliance does not support an inquiry into the compliance history of a former owner and operator unconnected with the applicant in a particular case. With respect to violations attributable to the prior owner/operator of the Site, Robert Martin, the Department's Mined Land Reclamation Specialist, stated that he had personally prepared the orders on consent, the prior owner/operator complied with those orders, and no environmental damage resulted from the violations in question. IC Tr. at pp. 229-230. Mr. Martin also indicated that Metro had complied with his request in an August 1998 letter to erect fencing and repair the slope at the mine. IC tr. at p. 218.

Ruling: The intervenors have failed to establish that Metro's record of compliance should be adjudicated. It is not appropriate to consider a wholly unrelated entity's compliance history in assessing the Applicant's record of compliance in this proceeding.

The Department's Record of Compliance Enforcement Guidance Memorandum ("ROC/EGM") (issued August 8, 1991; revised March, 1993), provides that the Department must evaluate an applicant's compliance history before a permit is issued or renewed. The ROC/EGM establishes the policies and procedures by which the Department is to ensure that persons who are unsuitable to carry out responsibilities under Department permits, certificates, licenses or grants, are not authorized to do so. Compliance with the ECL and enforcement against those who violate the ECL can be advanced by ensuring that the permit review procedures incorporate such consideration at the earliest possible stage in the review process.

ROC/EGM at ¶ I. The ROC/EGM requires an assessment of an applicant's compliance record, on a case-by-case basis, to determine what, if any, actions the Department should take to safeguard the State's environment. The record of compliance policy applies to every permit applicant. ROC/EGM at ¶ VII(3). Consideration is given not only to the applicant's record, but also to the compliance history of any other entity in which the permittee has a substantial interest or acts as a "high managerial agent or director." Id.

As this language makes clear, the inquiry is confined to entities that have some relationship to the prospective permittee. The RRA has made no showing that the prior owner/operator has any involvement with the Applicant, or that any of the violations detailed in the RRA's petition are attributable to Metro. Similarly, the proposed intervenors' argument that if the prior permit had been revoked for violations attributable to the former owner/operator, the Applicant here would be unable to apply for a renewal of the existing permit, fails because the prior permit was not revoked.

Moreover, the RRA's argument that no violations have taken place during Metro's tenure because of a lack of activity at the Site is not persuasive. The Applicant operates other facilities in the State, and the RRA has not provided any information that would suggest that Metro has violated the Mined Land Reclamation Law or other laws or regulations of the Department in connection with its other operations. Accordingly, no substantive or significant issue has been raised with respect to the Applicant's record of compliance.

APPEALS

As provided in 6 NYCRR 624.8(d)(2), during the course of a hearing, a ruling by the Administrative Law Judge to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed as of right to the Commissioner on an expedited basis. While such appeals are to be filed with the Commissioner in writing within five days of the disputed ruling as required by 6 NYCRR 624.6(e)(1), this time frame may be modified by the ALJ, in accordance with 6 NYCRR 624.6(g), to avoid prejudice to any party.

Accordingly, any appeals in this matter must be received at the office of Commissioner Erin M. Crotty, 625 Broadway, Albany, New York 12233, no later than the close of business on Friday, September 5, 2003. Moreover, responses to the initial appeals will be allowed and such responses must be received as above no later than the close of business on Friday, September 26, 2003.

The appeals and any responses sent to the Commissioner's Office must include an original and two copies. In addition, one copy of all appeal and response papers must be sent to me and to all other persons on listed below, at the same time and in the same manner as to the Commissioner. Service of any appeal or response thereto by facsimile transmission (FAX), or by electronic mail, is not permitted and any such service will not be accepted.

Appeals and any responses thereto should address the ALJ's rulings directly, rather than merely restate a party's contentions and should include appropriate citations to the record and any exhibits introduced therein.

As provided above, Department Staff is directed to develop a permit condition to address the hydrogeology issue, in conjunction with the Applicant, and to provide that condition to the ALJ and the RRA by close of business on Friday, August 22, 2003. Any comments by the RRA are to be provided by close of business on Friday, August 29, 2003 to the Applicant, Department Staff, and the ALJ.

New York State Department of
Environmental Conservation
/s/
Maria E. Villa
Administrative Law Judge

Dated: Albany, New York
August 7, 2003

To: Rosemary Stack, Esq.
5110 Velasko Road, Suite 2000
Syracuse, New York 13215

Jonah Triebwasser, Esq., Deputy Regional Attorney
New York State Department of Environmental Conservation
Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

George Rodenhausen, Esq.
Denise M. FitzPatrick, Esq.
Rapport Meyers Whitbeck Shaw & Rodenhausen LLP
110 Main Street
Poughkeepsie, New York 12601

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