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Palumbo Block Company, Inc. - Ruling 3, February 9, 2001

Ruling 3, February 9, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of PALUMBO BLOCK COMPANY for a Mined Land Reclamation Permit for
a proposed mine in the Town of Ancram, pursuant to Article 23, Title 27 of
the Environmental Conservation Law

February 9, 2001

RULING ON ISSUES AND PARTY STATUS

DEC Application No. 4-1020-00035/00001

Summary

This ruling identifies the parties and the issues for adjudication in the hearing on Palumbo Block Company's application for a mined land reclamation permit for sand and gravel mining to be conducted in the Town of Ancram, Columbia County. The parties to the hearing are the Applicant, the Department Staff, and a consolidated party consisting of the Town of Ancram and the Taconic Valley Preservation Alliance. The Village of Millerton's petition for party status is denied. The issues identified for adjudication in the hearing are: the Applicant's record of compliance, erosion control and drainage, freshwater wetlands impacts, visual impacts, noise, impacts on the character of the community, and deficiencies in the maps that are part of the application. Proposed issues which will not be adjudicated include impacts on groundwater, spill prevention, air and dust impacts, and traffic. A Supplemental Environmental Impact Statement is not being required.

Background

Palumbo Block Company (the "Applicant") proposes to mine unconsolidated sand and gravel from 73 acres over a period of twenty years, removing approximately 2,000,000 cubic yards of sand and gravel. The mining would occur in seven phases. The mining would take place in the Town of Ancram, Columbia County, on the east side of Route 22 approximately one mile north of White House Road.

The Applicant applied for a mined land reclamation permit pursuant to Environmental Conservation Law ("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 Parts 420 through 425").

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). The Department determined that the project may have a significant environmental impact and required preparation of an Environmental Impact Statement ("EIS").

The hearing on the project began on July 20, 1999 with a legislative hearing for unsworn comments about the application and the Draft EIS. The issues conference had been scheduled for July 21, 1999 but was postponed by agreement of the parties and potential parties to October 5, 1999. The issues conference continued on October 27 and December 16, 1999. The hearing is being held pursuant to 6 NYCRR Part 624, the Department's permit hearing procedures.

Two petitions for party status were received, one from the Village of Millerton (the "Village") and one from a consolidated party consisting of the Town of Ancram and the Taconic Valley Preservation Alliance (the "Intervenors"). The Town of Ancram had also submitted comments under ECL 23-2711.3 in July 23, 1999 letter from Warren Replansky to Michael Higgins.

The Applicant is represented in this hearing by Laura Zeisel, Esq., New Paltz. The Department's Region 4 Staff is represented by Richard Ostrov, Esq., Assistant Regional Attorney, DEC Region 4, Schenectady. The Intervenors are represented by Warren S. Replansky, Esq., of the firm of Osofsky and Replansky, Pine Plains. The Village of Millerton is represented by Michele W. Haab, Esq., of the firm of Downey, Haab & Murphy, Millerton.

As discussed in a ruling dated October 22, 1999, the issues conference record remained open pending the outcome of an enforcement hearing involving a facility in the Town of Dover, Dutchess County, in which the Applicant was one of the Respondents. On October 5, 2000, the Commissioner of Environmental Conservation issued an Order finding that the Respondents in that matter had violated the Mined Land Reclamation Law and an Order on Consent by mining without a permit.

Also during 2000, there was additional correspondence on a number of subjects including confirmation by the U.S. Army Corps of Engineers of a wetland boundary delineation on the site, a site visit requested by the Intervenors, and a supplemental notice regarding the location of the land which the Applicant has an option to buy for use in the project.

The original notice of hearing had identified the site as being entirely in the Town of Ancram, Columbia County, based on the depiction of the site in the DEIS. In correspondence after the beginning of the hearing, however, the Applicant's consultant identified the land as also including an area in the Town of Northeast, Dutchess County. Although the Applicant proposes to mine only on the area within the Town of Ancram, the Applicant does propose to take the other land into account in determining setback distances from property lines. The Applicant also identified the possibility of growing trees on the land which is located in Northeast, although that is not part of the present proposal. The Town of Northeast was notified of the application and provided an opportunity to comment pursuant to ECL Section 23-2711.3. The Department Staff responded to these comments on November 7, 2000 and made no changes in the draft permit in response to the comments.

The Applicant, the Department Staff and the Intervenors submitted summary statements regarding the proposed issues on December 6, 2000.

The location of the site and of nearby geographic features is illustrated on Appendix A of this ruling. A state-regulated wetland designated as CO-26 is on and adjacent to the site although all mining activities are proposed to take place outside of the wetland and its 100-foot adjacent area. The wetland flows into the Noster Kill.

The depiction of the site in Appendix A shows the boundary that includes land in both the Towns of Ancram and of Northeast, although only the area in Ancram is shaded. The map which is Appendix A is taken from the November 20, 2000 Updated Mined Land Use Plan, but that plan and its appended Erosion and Sediment Control Plan still contain two different depictions of the site. The boundary of the land which the Applicant has an option to buy, and which it wishes to have taken in to account in considering property line locations and setback distances, has not been well defined and will need to be clarified.

Status of Application and Draft Permit

The application has undergone a number of revisions during the issues conference process, including a change in the location of the mine phases. The current application includes an Updated Mined Land Use Plan narrative dated November 20, 2000, a Mining Map dated January 5, 2000, a Reclamation Map dated November 12, 1999 and an Erosion and Sediment Control Plan dated November 19, 1999. Some of the other reports and correspondence submitted by the Applicant during the issues conference process may be considered as supplemental application materials.

The draft permit was also revised. Some of the revisions resulted from discussions among the parties about possible resolution or narrowing of issues. The most recent draft permit consists of the initial four pages of the October 18, 1999 draft permit, the special conditions dated January 14, 2000 (pp. 5 through 8), and the two additional changes identified in Richard Ostrov's letter of December 4, 2000.

Ruling on Party Status

The Applicant and the Department Staff are parties to the hearing pursuant to 6 NYCRR 624.5(a).

The Town of Ancram and the Taconic Valley Preservation Alliance (the "Intervenors") are granted party status as a consolidated party. They filed a petition as required in 6 NYCRR 624.5(b), demonstrated an adequate environmental interest in the project, and (as discussed below) have raised a number of substantive and significant issues for adjudication.

The Village of Millerton also petitioned for party status, but it was unclear whether the Village proposed any testimony. The Village participated in the issues conference only to a limited extent. There was mention that the Village might consolidate its participation in some manner with that of the Intervenors, but this was never confirmed. On November 2, 2000, I wrote to the attorney for the Village, stating that in the absence of a response about the Village's intention to participate, I would conclude that the Village was no longer requesting party status. I have received no response to the November 2, 2000 letter. The Village's petition for party status is denied.

Intervenors' Request for a Supplemental EIS

In both their petition for party status and their December 6, 2000 summary statement, the Intervenors stated that the Draft Environmental Impact Statement is deficient and fails to address or study numerous significant impacts that were identified in the Department Staff's positive declaration and the scoping document. The Intervenors contend that a Supplemental Environmental Impact Statement ("SEIS") should be required.

Some of the missing information was provided during the time between the start of the hearing and the present. The application has been supplemented and revised on a number of occasions. The record on certain other subjects will be developed through the adjudicatory hearing since they are being identified as issues for adjudication (see 6 NYCRR 624.13(c) and 624.4(c)(6)).

A lead agency may require an SEIS only under certain conditions identified in 6 NYCRR 617.9(a)(7), limited to subjects not addressed or in adequately addressed in the EIS that arise from changes proposed for the project, newly discovered information, or a change in circumstances related to the project. In the present case, the criticisms of the EIS are not related to project changes, new information or changed circumstances, so the procedure of supplementing the EIS does not apply here and an SEIS will not be required unless the conditions contemplated in 617.9(a)(7) occur. Instead, issues arising from the EIS may be addressed through adjudication, as discussed below.

Ruling on Issues

Standard of Review

6 NYCRR Section 624.4(c) specifies the standards for adjudicable issues in a DEC permit hearing. When the Department Staff has determined that a permit application, conditioned by a draft permit, will meet all statutory and regulatory requirements, the potential party proposing an issue has the burden of persuasion to demonstrate that the proposed issue is substantive and significant.

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)). 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 (624.4(c)(3)).

In order to establish that adjudicable issues exist, "an intervenor must demonstrate to the satisfaction of the Administrative Law Judge that the Applicant's presentation of facts in support of its application do not meet the requirements of the statute or regulations. 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 of the Commissioner dated April 2, 1982).

Where the Department, as lead agency, has required the preparation of a DEIS, questions of whether to adjudicate issues concerning the sufficiency of the DEIS or the ability of the Department to make findings required by SEQRA are determined under the same standards that apply to identification of issues generally (624.4(c)(6)(i)(b); 624.4(c)(1) through (4)).

SEQRA requires that an agency approving an action must make findings regarding the agency's consideration of environmental effects and alternative actions and the minimization or avoidance of adverse environmental effects (see 617.11).

Record of Compliance

The Intervenors, in their petition for party status, contended that the application should be denied based on the Applicant's compliance history (and that of related companies) at other facilities in the Town of Dover, Dutchess County. The Intervenors cited three orders on consent as well as allegations of violations that have not been the subject of final enforcement actions, and proposed to present testimony of three current or former Town of Dover officials and of a Department employee.(1) The testimony was proposed to include alleged lack of reclamation at the Dover gravel mine site.

The Department Staff did not take a position regarding whether this issue should be adjudicated, pending the outcome of the DEC Region 3 hearing mentioned above (In the Matter of Palumbo Block Company, Inc., Danny Fortune and Company, Inc., Fortunato Palumbo and Anthony Palumbo, DEC Case No. R3-1999-0909-52, the "Dover enforcement hearing"). Commissioner John P. Cahill issued an order in this enforcement hearing on October 5, 2000, finding that the Respondents had violated ECL 23-2711, 6 NYCRR 421.1(a), and a December 3, 1998 Order on Consent, by mining without a permit at the site involved in that matter. The October 5, 2000 Order imposed a penalty of $12,250 upon the Respondents. On December 6, 2000, the Department Staff stated its position regarding the proposed record-of-compliance issue in the present hearing, arguing that the nature of the violations does not rise to the level of conduct that would support denial of the permit.

The Applicant, in letters dated October 13, 1999 and December 6, 2000, argued that as a matter of law the Enforcement Guidance Memorandum regarding record of compliance issues (EGM II. 24, dated March 5, 1993) does not apply to applications under ECL Article 23 (mined land reclamation). The Applicant also argue that even if the policy is applied, the violations for various reasons are not such that the application should be denied, and that the Department has not revoked the mining permit of Palumbo Sand and Gravel, a related company. The Applicant contends that reclamation of the affected areas that were the subject of the enforcement actions was and/or is being accomplished.

On October 22, 1999, I made a ruling that the proposed issue was not excluded as a matter of law, that it remained a potential issue, and that the issues conference record would remain open pending the outcome of the Dover enforcement action.

EGM II. 24 provides guidance on how an applicant's compliance history should be taken into a account in deciding whether to issue, condition or deny a permit under a variety of the Department's permit programs. Factors which should be considered are described on pages 4 and 5 of the policy, and include whether an applicant has been determined to have violated any provision of the ECL or related regulations, permits or orders, and such violations posed a significant potential threat to the environment or were part of a pattern of non-compliance. These factors also include whether the applicant has made materially inaccurate statements in the permit application, supporting papers, or the conduct of the permitted activity, or has exceeded the scope of the project as described in any permit.

It is worth noting that the policy relates not only to the question of whether or not an applicant's record of compliance supports denial of a permit application but also to the question of whether an applicant should be subject to more stringent permit conditions than might otherwise be imposed (EGM II. 24, page 2). This suggests that even if the Department's Region 3 Staff has not moved to revoke the permit of a company closely related to the Applicant, the record of compliance of the present Applicant (and of related companies and persons) could be considered in weighing the need for additional or more stringent permit conditions.

The review of past compliance applies not only to the immediate entity applying for a permit, but to related business entities and persons, as discussed further on page 5 of the EGM. In the present case, the Order in the Dover enforcement hearing discusses the close relationship among persons and business involved in that matter, in the present permit hearing, and in the enforcement matters and allegations cited by the Intervenors (see particularly paragraphs 23 through 25 of the Commissioner's October 5, 2000 Order).

The EGM contemplates review of events that occurred within ten years of the date of completion of the record of compliance form, a form that may be required in the context of an application. The Department Staff has apparently not required the Applicant to provide a record of compliance form in the present case, so the date for the ten year time period is unclear. It would appear reasonable to use the date of completion of the application for this purpose.

An additional threshold cited by the Respondent, in arguing that the enforcement matters cited by the Intervenors should not be considered, is the $25,000 penalty amount that appears on page 6 of the EGM. This figure appears, however, in the context of a paragraph about considering "other state or United States matters." In contrast, the factors cited on pages 4 and 5 of the EGM are not limited to situations in which a penalty in excess of $25,000 was imposed. In evaluating an applicant's compliance history, the Department has also considered alleged violations of the Environmental Conservation Law that had not yet been the subject of a final enforcement action and thus would not have any penalty amount associated with them (see, for example, In the Matter of Seaboard Contracting and Material, Inc., Interim Decision dated June 6, 1990, and A-1 Recycling and Salvage, Interim Decision dated March 19, 1992).

The October 5, 2000 Order and the Orders on Consent which have been submitted as part of the offer of proof already document events that should be considered in evaluating the present application. The October 5, 2000 Order found that the Applicant and related entities had violated the ECL, a Department regulation and an Order on Consent by mining without a permit. The June 6, 1994 Order on Consent stated that the Respondents in that matter had substantially deviated from their mined land use plan in several ways including by conducting mining-related activities which affected areas outside the permitted boundaries, by conducting mining activities in non-compliance with their phase plan and without the required financial security, and by maintenance defects involving a settling pond and a berm. The other two orders on consent also involve violations of the Environmental Conservation Law and regulations, and the July 7, 1999 Modified Order on Consent involves violation of the December 3, 1998 Order on Consent. In addition to the matters that have been the subject of final DEC orders, the Intervenors propose testimony regarding lack of reclamation at the Dover mine site.

The offer of proof presented by the Intervenors has raised an issue for adjudication regarding the Applicant's record of compliance.

With regard to reclamation violations alleged by the Intervenors, which have not been the subject of an Order on Consent or a hearing, the Intervenors will need to provide a more detailed statement of their allegations prior to the hearing and will need to present evidence on this subject if they wish to pursue it. The Applicant will have the opportunity to present evidence on this subject as part of its direct case or as rebuttal.

Erosion Control and Drainage

The Intervenors' petition for party status presented a number of criticisms of the application with regard to this issue. These included that the DEIS (as of the date of the petition) did not provide a storm water control plan, that the project as proposed did not provide adequate measures to minimize siltation into the wetland and that the project would alter the existing drainage patterns. The Intervenors took the position that the drainage and erosion control measures for this project are particularly important since the site and areas uphill from it currently drain towards a large, ecologically significant wetland and a stream that supports trout spawning. The Intervenors asserted that the project would adversely affect the wetland and the stream and that a State Pollutant Discharge Elimination System ("SPDES") permit for storm water discharge should be required.

The Department Staff took the position that no SPDES storm water permit was required since there would be no discharge of turbid water from the site pursuant to special condition 15 of the draft permit. Both the Applicant and the Department Staff opposed adjudication of this issue at the start of the issues conference and they continue to do so. During and following the issues conference, the Applicant submitted an Erosion and Sediment Control Plan dated November 19, 1999 and revised the mining map to show berms and earthen dikes at locations where the Intervenors argued that runoff would leave the mined area toward the wetland.

Several regulatory provisions relate to this proposed issue, including the mined land reclamation requirements, SEQRA, and potentially the State Pollutant Discharge Elimination System (ECL Article 17, Title 8). The mined land reclamation regulations require that information on drainage control and erosion control be included in both the mining map and the mining plan narrative, and these regulations also contain substantive requirements about the objectives to be met in this regard (6 NYCRR 422.2). The reclamation plan is also required to have information related to these subjects, and to meet certain requirements regarding drainage and water impoundments (6 NYCRR 422.3).

Regarding the mining plan, "[a] description of the applicant's proposed method for preventing pollution, reducing soil erosion, and minimizing the effect of mining on the people of the State shall be required when and to the extent necessary to achieve compliance with the regulations of the department relative to: land use; air and water quality; solid waste management; the use and protection of waters; the protection of the natural resources of the State including soil, forests, water, fish, wildlife, and all aquatic or terrestrial related environment, and to any other applicable standards." (6 NYCRR 422.2(c)(4)).

In the context of the State Environmental Quality Review Act, ECL 8-0109.8 requires that, "When an agency decides to carry out or approve an action which has been the subject of an environmental impact statement, it shall make an explicit finding that the requirements of this section [preparation of environmental impact statement] have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided." 6 NYCRR 617.11 contains a similar requirement.

ECL 8-0105.6 defines "environment" in the context of SEQRA as meaning "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patters of population concentration, distribution or growth, and existing community or neighborhood character."

The third regulatory consideration, which may or may not be applicable to this project based on the outcome of this issue, is the State Pollutant Discharge Elimination System. There is a substantive disagreement regarding whether storm water will be discharged from the site. The Department administers two general permits regarding storm water (for construction activities and industrial activities, GP-93-06 and GP-98-03 respectively) but the Department Staff has taken the position that these are not applicable here since there would be no discharge to the waters of the United States.

Although the draft permit contains a condition prohibiting discharge surface water from any unreclaimed mining area and prohibiting discharge of turbid or sediment filled waters (Special Condition 15), the discussion at the issues conference indicated that, during at least portions of the mining, runoff from the mining area would be discharged if the mining was conducted as shown on the maps. The maps were amended after this discussion, by the addition of berms and earthen dikes, but there is still a dispute about the effectiveness of these measures and about ponding of water on the mine if the barriers are effective. No retention ponds are shown on the current maps. If the evidence demonstrates that a discharge requiring a SPDES permit will occur, or if the project is modified in such a way as to include such a discharge, a SPDES permit would be required. No SPDES permit application (or general permit procedure) is part of the application at present, however.

Even after the revision of the mining map and the inclusion of the Erosion and Sediment Control Plan, there remain unresolved, substantive disputes that, if proven true, would lead to significant modification or denial of the application, based on the requirements of the mined land regulations and/or SEQRA. The Intervenors have identified qualified witnesses to testify regarding both the drainage issue and the related issue of impacts on the wetland and stream. Among the remaining factual disputes are whether the berms and dikes will be effective, the actual size of berms and dikes that would be required in contrast to how these are depicted on the map (and how this would affect the boundaries of the area to be mined), the effectiveness of silt fences and hay bales in protecting the wetland from runoff in the area of the berms (even if the berms are effective at containing runoff from the mine itself), whether retention ponds need to be provided for, and how water entering the site through culverts under Route 22 is to be managed.

There are inconsistencies between how the berms and dikes are depicted in the Erosion and Sediment Control Plan and how they are depicted on the mining map, to the extent that it would make it difficult in the future to interpret what is required by the mined land use plan which would be incorporated by reference into the permit (Additional General Conditions 6 and 11). This is discussed further in the section below on "Alleged Deficiencies in Mapping."

Impacts on Wetland CO-26 and Waters Downstream

A freshwater wetland designated as CO-26 on the Department's freshwater wetlands maps is located adjacent to and partly on the site. The project as proposed would be located outside of both this wetland and the 100 foot adjacent area around the wetland. Consequently, no freshwater wetlands permit under ECL Article 24 would be necessary.

The Intervenors had questioned whether a federally-regulated wetland was within the project area. The boundary of the wetland, in terms of the jurisdiction of the U.S. Army Corps of Engineers, was reviewed by a consultant for the Applicant and by the Corps of Engineers. The conclusion of this review was that the project would also be located outside of the federally-regulated wetland. The proposed issue of federal wetlands jurisdiction was withdrawn by the Intervenors in a November 20, 2000 letter from Warren Replansky to me.

As discussed above, no SPDES permit application or general permit process has been required for this project by the Department Staff. Thus, at present the question of the project's impacts on wetland CO-26 and the Noster Kill would only be an issue for adjudication if there was a substantive dispute about whether the findings required under SEQRA could be made (ECL 8-0109.8, quoted above).

The sufficiency of an environmental impact statement, and its scope or lack of coverage of specific environmental concerns, is evaluated by the "hard look" standard which also applies to the determination of whether or not to require an EIS. This involves identifying the relevant areas of environmental concern, taking a "hard look" at them, and making a "reasoned elaboration" of the basis for the agency's determination (Aldrich v. Pattison, 107 A.D.2d 258, 486 N.Y.S.2d 23 (2nd Dept., 1985)).

There is a substantive and significant dispute about whether the required "hard look" has been taken regarding impacts on wetland CO-26 and the Noster Kill, as well as whether the project as proposed will avoid, and mitigate to the maximum extent practicable, impacts on the wetland.

The Intervenors have proposed testimony by an expert witness and have presented extensive information on this proposed issue. The information includes documents regarding the significance of the wetland and the stream as habitat which were prepared by the proposed witness, by a consultant for the intervenors in the Harlem Valley Materials hearing regarding the same site, and by the Dutchess County Environmental Management Council. This information asserts that rare or regionally-rare plant and animal species occur in the wetland, that the wetland includes a rare habitat type (rich shrub fen), and that the maintenance of the existing plant communities and rare species is dependent upon maintenance of the quality and quantity of groundwater and surface water inputs to the system. The Intervenors also argued that the wetland has features which indicate that bog turtles (an endangered species) may occur on the site and that an appropriate survey regarding bog turtle presence has not been conducted. Bog turtles are listed as endangered in New York State (6 NYCRR 182.6(a)(5)(ii)) and the Intervenors assert that they are a federally-listed endangered species. The Intervenors argued that the DEIS relies on a 1988 letter from the Department's Significant Habitat Unit although the letter itself states that the Habitat Unit's files should not be substituted for on-site surveys that may be required for environmental assessment, and the letter recommends that an updated response be requested if the project is still active a year from the date of the letter (DEIS sections 3.4 and 11.4).

The wetland flows into the Noster Kill. The DEIS, at page 21, initially identified the Noster Kill as being class D, but following discussions at the issues conference the DEIS was amended to state that the Noster Kill has the classification and standards of C(ts) (see 6 NYCRR 701 and 703 regarding stream classifications and standards, and 6 NYCRR Part 863 particularly section 863.6 item 58.1).

The January 20, 1998 positive declaration which the Department Staff issued regarding the project, requiring preparation of the DEIS, identified as two of the possible significant environmental impacts "adverse impacts on the adjacent wetlands (FWW CO-26)" and "adverse impacts on the Noster Kill, a protected trout spawning stream."

Although the DEIS acknowledges the presence of the rich shrub fen and that it contains plants that are rare in the state, the information in the DEIS cannot be considered to be a "hard look" at the biological resources that may be adversely affected by the project, nor at the measures necessary to avoid or mitigate such impacts. The DEIS relies on out-of-date documentary information and there is no indication that the Applicant has had on-site biological work conducted. This is particularly of concern in this case, where impacts on the wetland and stream were identified as being potentially significant in the positive declaration, where the information available about the ecosystem indicated the presence of a rare and vulnerable natural community next to the proposed mine, and where the question of potential habitat for bog turtles was raised in the 1989 hearing. (The differences between the former application and the present application do not eliminate this last item, since the present project may still cause adverse impacts on the wetland.)

The Department Staff's assertion that no bog turtles have been sighted does not resolve this last question, since there is no indication that either the Applicant or the Department Staff has looked. The Intervenors have asserted that conducting a survey for bog turtles requires specialized skills, but that such a survey has not been done. Neither the Applicant nor the Department Staff assert that an appropriate survey has been done but failed to reveal bog turtles, but instead seek to dismiss this question as speculative or theoretical, without effectively contradicting the information which indicates that the wetland is potential bog turtle habitat.

Similarly, the Applicant argued that the Intervenors presented no peer-reviewed literature on the impacts of mining on wetlands and that the absence of such literature supports an argument that the issue is speculative. The Intervenors argued that no studies that would have produced the data for such literature have been required by the Department. The Intervenors' position is actually underlined by the Department Staff's January 14, 2000 revision of the draft permit, which eliminated Special Condition No. 26; this condition would have required the Applicant to submit annual reports regarding the quality and quantity of groundwater inputs to the wetland and the water budget of the fen portions of the wetland. The Intervenors, apparently considering Special Condition 26 as being still part of the draft permit, argued that this information should also be required prior to the mining in order to establish a baseline to which the later reports could be compared.

As discussed in the prior section of this ruling, there is an issue regarding the adequacy of the drainage and erosion control measures proposed by the Applicant. (In addition to surface water inputs to the wetland, the Intervenors assert that changes in the groundwater inputs to the wetland could adversely affect the habitat.) The mine's effects on the quantity and quality of water entering the wetland, when evaluated in the context of the environmental conditions in the wetland, have the potential for resulting in denial or major modification of the project or imposition of significant permit conditions in order for the Department to make the findings required under SEQRA. In addition, the record as it currently stands does not indicate that the required "hard look" has been taken at the relevant ecological resources and the project's impacts on them.

Two sub-issues were discussed at the issues conference, which led to a site visit and sampling that occurred on October 3, 2000. These sub-issues were whether liquid manure was being applied to the site (which the Intervenors argued would increase the nutrients in runoff from the site) and questions about an old farm dump located within phase 6 of the mine. (An additional farm dump is located outside of the mining area, in the adjacent area of the wetland.) The Intervenors had argued that farm dumps may contain discarded pesticides and that these substances, if moved to areas near the wetland, could adversely affect the wetland.

The report regarding the site visit does not raise any additional issues, although the data from the report may be used in the hearing to the extent that it is relevant to the identified issues. While the report gives figures for various nutrients in the soil at the site, it does not compare these concentrations to any information which would show that they are unusual or that they pose problems other than those associated with silt runoff at any site.

Two of the samples were also tested for various herbicides and pesticides, but all of the results were below the detectable concentrations. The report also does not show how close to the farm dumps the samples were taken. The Intervenors had the opportunity to test samples from near the dumps for pesticides and herbicides, but the report does not indicate that this was done, nor that the waste in the dumps included containers from these substances.

6 NYCRR Part 360 contains an exemption for disposal areas located within the property boundaries of a single family residence or farm for solid waste generated from that residence or farm (360-1.7(b)(1)) and, with certain conditions, disposal areas for waste pesticides by the farmer who used them (360-1.7(b)(2)). Similar exemptions existed in earlier versions of Part 360.

Requirements regarding waste disposal would only arise here if the waste was moved. The mining will, however, involve excavating one of the two dumps if it is carried out as proposed on the mining and reclamation maps. The contents of the dump in phase 6, as described in the report of the October 3, 2000 site visit, are solid waste. At the issues conference, the Department Staff suggested the possibility of not mining in the dump area, but that appears unlikely since that would leave an unmined hill about 20 to 45 feet high in the phase 6 area. This dump should be dealt with by including a permit condition that the waste material be removed and be disposed of according to applicable requirements prior to the mining of phase 6. I am directing that the Department Staff formulate such a permit condition prior to the hearing.(2)

Groundwater

A proposed issue regarding protection of groundwater was discussed in the Intervenors' petition for party status, involving both the mine's effects on groundwater inputs to the wetland and the question of whether the mining would extend to below the water table. Evidence regarding groundwater inputs to the wetland may be relevant to the wetland issue identified above. The second question, however, appears to have been resolved by revision of certain permit conditions that relate to determining the groundwater elevation and the elevation of the mine floor more precisely, and to maintaining a minimum separation of five feet of sand and gravel between the mine floor and the seasonal high groundwater table. No separate issue has been raised regarding groundwater.

Spill prevention

The Intervenors' petition for party status contended that although the DEIS states that fuel will be stored in a tank in a barn on a concrete foundation, the barn no longer appears to exist and the gravel at the barn's location would be mined during one of the mining phases. Following discussion of this at the issues conference, it appears that one of the barns does still exist on the site. The Applicant revised the spill control plan to state that the tank would be in the barn during phases 1 through 4 and that refueling in later phases would be from an external above-ground fuel tank or fuel would be delivered to the equipment as needed. The revision of the spill plan also included additional information about the kind of tank that would be used. No issue remains for adjudication regarding the spill control plan.

Visual impacts

The DEIS acknowledges that the mining activities will be visible from the Taconic State Park (DEIS, section 5.3), portions of the Harlem Valley Rail Trail (4.7), and some of the residences near the mine (3.6.6). The DEIS proposes screening the view of the mine from Route 22 by use of topsoil berms and by planting pine trees two to five feet tall in the buffer zone along Route 22 (1.4.3, 4.7). The DEIS states that there is no effective way to screen the site from view of potential receptors in the Taconic State Park and lists this as an unavoidable adverse impact during the life of the mine (5.3).

During the fall of 1999, the Applicant changed the proposed phasing of the mine. Mining would now occur in seven phases which are in order from the north to the south end of the site, as opposed to the original proposal of phases 1 through 4 being located from north to south along the east side of the site and phases 5 through 7 being located from south to north along the west side of the site. At the December 16, 1999 session of the issues conference, the Applicant's consultant stated that mining in each of the new phases would progress from north to south in order to minimize visual impacts at viewpoints to the east and west of the site. The Intervenors questioned the effectiveness of this measure for viewpoints located other than straight east or west of the location of the active face, and the Department Staff's mined land reclamation specialist stated that mining in each phase from east to west would be preferable. The north to south mining progression is not reflected in the November 20, 2000 revised mining plan, which states that mining within each phase will be done in an east to west direction (section 3.3).

The January 14, 2000 draft permit requires planting of two staggered rows of four foot tall white pine trees in the buffer area along Route 22, with the plantings being done in three segments, going north to south, as the mine phases are developed. The draft permit also requires that vegetative cover be maintained on the berms until they are used for reclamation and that no vegetation be disturbed on the permittee's contiguous property outside of the life-of-mine area. The draft permit also requires that no more than 10.5 acres be in a disturbed condition at any time.

The Intervenors' petition for party status argued that the visual impact analysis in the DEIS did not provide the required "hard look" at the impacts and did not use standard methodologies for evaluating such impacts, and that the mining operation would have substantial, unmitigatable visual impacts on important receptors. At the issues conference, the Intervenors presented a draft visibility analysis which was discussed by one of their proposed witnesses on this subject, Nicholas Schwartz of Clough, Harbor and Associates. The analysis focused on identifying the view shed from which the mine would be visible and portraying the proposed mine's location in the existing view through photo-simulations. Mr. Schwartz noted the distinction between visual impacts of an object (a change in a view) and aesthetic impacts (an effect on the perceived beauty of something). Mr. Schwartz also noted that his draft visibility map was prepared with a model that does not extend to the eastern-most part of New York State. This area which is beyond the mapping includes Brace Mountain and portions of the Taconic State Park. Mr. Schwartz stated that the photo-simulations did not include a view from the rail trail since he could not get there due to private property concerns. The view shed analysis shows that the site would be visible from the majority of the section of the rail trail that parallels the site, about 600 to 800 feet from the mine.

The Department Staff and the Applicant criticized the draft visibility analysis for numerous reasons, including that the photo-simulations show the entire area of the mine rather than just 10.5 acres(3), that the Department has not specified a particular method to be used in evaluating visual impacts, that the Department document regarding visual impacts which was cited by Mr. Schwartz is a draft that was never adopted, that the appearance of the mining operations will not be significantly different from that of the existing agricultural operations, and that the special conditions in the draft permit adequately mitigate any impacts.

On July 31, 2000, the Department issued a Program Policy regarding "Assessing and Mitigating Visual Impacts" (Policy DEP-00-2). This policy provides guidance to the Department in evaluating visual and aesthetic impacts. It does not prescribe a method or methods for analyzing visual impacts, but it discusses use of line-of-sight-profiles and digital viewsheds, with decisions about the adequacy of methods to be made taking into account the scope and potential significance of the activity (policy, p. 5). The policy also emphasizes state- and federally-designated aesthetic resources in the DEC's evaluation of impacts, while stating that the Department Staff should defer to local decision-makers with regard to impacts on local aesthetic resources (p. 2). The policy contains a list of categories of aesthetic resources of statewide significance, including state parks and state or federally designated trails. The Taconic State Park and the Harlem Valley Rail Trail would be considered aesthetic resources of statewide significance.

The New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") did not petition for party status in the hearing but did submit comments on the application and the DEIS. These comments highlighted OPRHP's concerns about impacts on the rail trail, including visual and noise impacts, stated that additional information should be included in the DEIS with regard to mitigation of these impacts, and recommended consideration of a buffer zone with plantings along the eastern side of the mine. The comments also stated that reclamation is key to preservation of the aesthetic resources and that DEC should take into consideration the Applicant's past record in reclamation activities.

The Columbia County Board of Supervisors and the Columbia County Tourism Department also submitted written comments stating concerns about noise and visual impacts on the rail trail. The Board of Supervisors requested denial of the permit for reasons including visual impacts on the Taconic mountains.

The record of the hearing, as developed thus far, demonstrates that a substantive and significant issue exists regarding visual impacts of the mine. There are places of statewide aesthetic significance from which the project will be visible, and the DEIS does not contain a meaningful evaluation of the visibility from these locations (other than providing a visual cross-section which includes Brace Mountain, DEIS Figure 3-11b). The aesthetic impacts of the views of the mine are substantively in dispute, as is the adequacy of screening. It is not in dispute that the site cannot be screened from the view of potential receptors in the Taconic State Park. The Department Staff's effort to equate the appearance of the mine with that of a cornfield does not lead to a conclusion that the impacts of the mine's visibility will be insignificant. This is particularly so given the opposing opinions of the state and local entities mentioned above, given the absence of an opinion by a qualified Department Staff witness to this effect (as opposed to argument), and given the requirement in the mining regulations that mining plans include measures for screening mines for purposes which include minimizing the visual impacts (6 NYCRR 422.2(c)(4)(iii)). If mines could be assumed to look like plowed or vegetated agricultural fields, it is doubtful that there would be such a requirement in the mining regulations. With regard to this particular application, there is an additional factor (cited by both the Intervenors and OPRHP) regarding the track record of the Applicant or related companies in carrying out reclamation.

Noise

The Department's mining regulations contain narrative requirements regarding noise control. These include 6 NYCRR 422.2(c)(4)(i), regarding use of adequately muffled equipment and screening, as well as more general provisions regarding preventing pollution and providing information in the mining plan which would be of use in evaluating noise impacts. Noise is also an aspect of the environment under SEQRA (see 6 NYCRR 617.2(l)) and a substantial adverse change in existing noise levels is among the indicators of significant adverse impacts on the environment (617.7(c)((1)(i)).

The Intervenors critiqued the adequacy of both the evaluation of noise impacts in the DEIS and the mitigation measures proposed in the DEIS. The Intervenors asserted that the project would cause unacceptable increases in noise at nearby residences and at the rail trail. The Intervenors proposed testimony by an engineer regarding these subjects. The Intervenors also argued that the numerical noise standards in 6 NYCRR Part 360, applicable to solid waste facilities, have been used by the Department in the past as guidance in evaluating noise in mining projects and should be taken into consideration here.

The Department Staff stated that some prior decisions of the Department have referred to Part 360 as guidance but that the noise standards in Part 360 do not control mining projects. The Applicant acknowledged these decisions also, but argued that the mining regulations currently contain no noise performance standards and that if the Department wants to start applying uniform noise performance requirements to mines this should be done by promulgating such standards as regulations. The Applicant presented a copy of the Town of Ancram noise ordinance and stated that this does not contain any specific decibel limits nor does it specifically refer to noise from mines. The Applicant argued that it is legally impossible for a noise issue to be "substantive" since there are no statutory or regulatory criteria for noise.

Interim Decisions in prior DEC hearings about mines have stated that consideration can be given to the noise standards in Part 360 and other standards applicable to noise from comparable operations, and that such standards may be used as guidance to held accomplish the SEQRA objective in mining cases (In the Matter of Sour Mountain Realty, Inc., Interim Decision dated July 18, 1996; In the Matter of William E. Dailey, Inc., Interim Decision dated June 20, 1995).

SEQRA provides authority (and responsibility) to the Department to review environmental impacts of mining projects in addition to the review process in the mined land reclamation regulations. In a case involving visual impacts of a hard rock mine, the Appellate Division stated that, "...while part of the goal of ECL Article 23 was to promote mining by providing guidelines through the adoption and creation of uniform restrictions and regulations [citation omitted], the statute does not mandate that DEC pass detailed regulations describing the exact visual or sound impacts that would preclude the issuance of a mining permit." (Lane Construction Corporation v. Cahill, 270 A.D.2d 609, 704 N.Y.S.2d 687 (3d Dept., 2000), motion for leave to appeal denied 95 N.Y.2d 765).

In addition, there are statutory and regulatory criteria that apply to noise. These include the criteria for making the required findings under the State Environmental Quality Review Act, regarding the review of the project and the choices of alternatives and mitigation measures.

Additional program guidance on the Department's evaluation of noise impacts became available following the last day of the issues conference, in the form of the DEC Program Policy on "Assessing and Mitigating Noise Impacts," DEP-00-3, issued on October 6, 2000. Official notice is taken of this policy. This policy does not adopt nor reject the Part 360 numerical standards in considering projects other than solid waste facilities. The Program Policy describes a general framework and factors for evaluating and mitigating noise impacts. This involves evaluation of sound characteristics, identification of receptors and their distance to a project's operations at the time when these will be closest to the receptors, and prediction of project-related changes from the existing noise level at the receptors. The policy identifies the need for considering all aspects of a project that will produce noise, plus site-specific factors affecting noise. The policy also contains examples of mitigation measures, which include limitations on hours of operation of a facility or of the noisier operations at a facility.

The Intervenor's critique of the noise information in the DEIS and in the August 6, 1999 report prepared for the Applicant identified omissions from the evaluation of noise levels, disputes about the adequacy of mitigation measures, and information which would which show that the project as proposed and conditioned by the draft permit would produce substantial adverse increases in noise. Noise has been shown to be a substantive and significant issue for adjudication in the hearing.

Among other matters, the Intervenors argued that the project will produce increases in noise at nearby residences that are "unacceptable according to any noise criteria," and even greater increases in noise levels along the rail trail. The Intervenors also argued that the vegetation to be planted along the west side of the site will not provide any useful mitigation of noise impacts since it would take a much larger and denser stand of vegetation to attenuate noise. There are other points regarding distances between noise receptors and noise sources which will not be summarized here but which relate to omissions in the Applicant's noise analysis and/or to disputes between the Applicant's position and that of the Intervenors regarding the changes in noise levels due to the project. The Intervenors also stated that the Towns of Ancram and Northeast had both requested more limited hours of operation than are proposed. The Intervenors (which include the Town of Ancram) argued that shorter hours are feasible in view of the proposed use of the mine as a materials source for a specific block plant rather than for commercial sales.

The Intervenors stated that the Applicant's noise evaluation does not include noise from a portable screen although the draft permit would allow for such equipment. The DEIS (at section 4.6.8) discussed the noise sources from the project as being a bulldozer, a rubber-tired loader and 25- to 50-ton capacity haul trucks but did not discuss any noise from a portable screen. The table regarding calculated noise levels (DEIS, table 4-1) lists only the loader and trucks as noise sources, but not the bulldozer. As discussed below, under "Air," the Applicant has not identified the screen equipment other than that it will be a portable screen with a maximum rated processing capacity less than 150 tons of minerals per hour. In the absence of a more specific identification, the evidence regarding noise impacts of the screen may include information about the range of noise levels that could be produced by equipment fitting this description, including the most impact-intensive equipment.

On the second day of the issues conference, the Applicant sought to exclude the rail trail as irrelevant to the noise issue, based on a rail trail pamphlet that stated that the section of the trail next to the project is not open to the public. In response, the Intervenors provided information about the phases in which the rail trail was being developed, including a letter from Roger F. Akeley, Commissioner of the Dutchess County Department of Planning and Economic Development, which stated that his Department hoped to secure funding for the segment north of Whitehouse Crossing (i.e., the segment next to the project) within 18 months from late 1999. It can reasonably be expected that this segment of the rail trail will be developed soon. As with the visual impacts issue, local governmental agencies and the NYS OPRHP have commented on the significance of the rail trail and their concerns about the project's noise impacts affecting use of the rail trail.

As stated above, noise has been shown to be a substantive and significant issue for adjudication in the hearing.

Air

The Intervenors contended that an air permit application should be required for the portable screen which the Applicant proposes to use at the site to sort sand and gravel by size. The Department Staff included a special condition (No. 24) in the draft permit which would prohibit the operation of a mobile or portable screen with a maximum rated processing capacity greater than 150 tons of minerals per hour. Pursuant to the exemption in 6 NYCRR 201-3.2(c)(29)(ii), a screen which complied with this draft permit condition would be exempt from the requirement for an air permit under 6 NYCRR Part 201.

The application does not specifically identify the type of portable screen which the Applicant proposes to use. When asked about this at the issues conference, the Applicant provided a letter from the manufacturer of a screen that the Palumbos currently have at another facility, identifying the capacity as up to 135 tons per hour of bank run. The Applicant has not decided what type of screen it would actually use at the Ancram facility although it might move its screen from the other facility to Ancram.

The draft permit condition, with a minor modification, eliminates the need for requiring an air permit application or adjudicating issues about air permit standards. The minor modification which should be made to the draft permit condition is to require the Applicant to provide documentation to the Department Staff regarding the maximum rated processing capacity of the screen it decides to use, prior to starting to operate the screen at the project. This would address the question of how the Department Staff would know whether the equipment which the Applicant eventually decides to use is in compliance with the permit condition.

The Intervenors' proposed issue regarding air quality focused mainly on permit requirements and the adequacy of the DEIS's review of air impacts. The role of the Intervenors' consultant with regard to this issue was primarily to raise questions regarding these subjects. The Intervenors proposed testimony from local residents regarding high winds in the valley and dust generation from the two mines which are north and south of the site of the present proposal.

As stated above, no permit under Part 201 is required for the screen, if the project is conducted as conditioned in the draft permit. The Intervenors have also not made an offer of proof to show that the other permits and air analyses mentioned in their May 14, 1999 comments on the DEIS would be necessary in this case. A review of the DEIS indicates that the subjects identified in the scoping document have generally been discussed, and it does not appear that omissions or lack of detail in the DEIS are substantive and significant enough to require adjudication. In addition to the dust control measures identified in the DEIS, the draft permit contains special conditions requiring that the access roads be paved for at least 150 feet from their intersection with Route 22 and requiring that there be no visible emissions of dust beyond the life-of-mine boundary. Unlike the controversy over the condition prohibiting runoff of turbid water, the Intervenors have not called into question the feasibility of the permit condition or the ability of the project (as proposed in the mined land use plan) to comply with it.

Although the Intervenors offered testimony by local residents concerning dust from the neighboring mines, the dust control requirements for those mines and their compliance with the requirements are not identified. This may be a matter for enforcement investigation by the Department Staff, rather than for consideration in the permit hearing on the present application.

There is no issue requiring adjudication regarding air quality issues in this hearing.

Traffic

This issue was proposed by the Intervenors in their petition for party status but was not discussed to a great extent in the issues conference and related correspondence. It relates primarily to the adequacy of the SEQRA review process. Mine-related traffic would enter Route 22 and travel on Route 22, which is a state highway. Although a member of the Department Staff mentioned that he thought there was a letter from the New York State Department of Transportation ("DOT") regarding the project's traffic impacts, no such letter has been provided for the record. The DEIS, at page 11, states that a Commercial Highway Access Permit from DOT is required, and that review of this is pending.

The DEIS estimates the truck traffic from the mine to be 10 to 12 round trips per day, and suggests that this will be a minor increase in truck traffic. The Intervenors have asserted that there are traffic hazards on Route 22 which are generated in significant part by gravel mine trucks. This is truck traffic which already occurs from other existing mines. The Intervenors have not made an offer of proof that the Applicant's traffic will cause a significant increase in this problem, nor about what should be done to mitigate or avoid any additional impacts. Although the Intervenors questioned the need for three entrances onto Route 22 from the mine, it appears likely that only one of these entrances would be in use while any particular mine phase was operating.

The record of this proceeding does not demonstrate that a substantive factual dispute exists regarding the impact of the additional traffic that the Applicant's mine would produce. The review of this application is, however, deficient with regard to review by DOT, the state agency which is responsible for Route 22. In the present case, traffic was cited by the Department Staff as one of the reasons why the project may have a significant adverse impact, necessitating the preparation of a DEIS. Review by DOT of the traffic impacts of the present application is appropriate and will need to occur if it has not been done already (see, Interim Decision dated June 20, 1995 In the Matter of William E. Dailey, Inc., regarding input from agencies responsible for affected roads). The Department Staff will need to provide for the record the letter from DOT which was mentioned at the issues conference, or request from DOT its evaluation of the traffic impacts of the project and provide DOT's response for the record.

Community character

The definition of "environment" for purposes of the State Environmental Quality Review Act includes "...resources of agricultural, archaeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character..." (6 NYCRR 617.1(l)). The need to consider impacts on the character of the community in the environmental review process has been recognized by the Courts (Jackson v. Urban Development Corporation, 67 N.Y. 2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986]; Chinese Staff and Workers Association v. City of New York, 68 N.Y. 2d 359, 509 N.Y.S.2d 499, 502 N.E.2d 176 [1986]; Meschi v. Department of Environmental Conservation, 114 Misc. 2d 877, 452 N.Y.S.2d 553) and the agency needs to consider these in the context of the particular location involved (Harlem Valley United Coalition, Inc. v. Hall, 54 N.Y.2d 977, 446 N.Y.S.2d 33, 430 N.E.2d 909 [1981]).

The Intervenors have proposed adverse impacts on the character of the surrounding community as an issue for adjudication. Their reasons for alleging such impacts relate largely to the issues of noise and visual impacts, and to the importance of tourism, recreational and agricultural activities in the economy and social fabric of the area surrounding the proposed mine. This is not solely an economic issue (Wal-Mart Stores, Inc. v. Planning Board of the Town of North Elba, 238 A.D.2d 93, 668 N.Y.S.2d 774 (3d Dept., 1998)).

Noise and visual impacts of the project have been found in these rulings to be substantive and significant issues for adjudication, as discussed in preceding sections. The role of the rail trail and the Taconic State Park in the significance of these issues has also been mentioned. Some of the proposed testimony regarding impacts on the character of the community will be relevant to the noise and visual impact issues as well.

The Intervenors proposed to call officials of the Towns of Ancram and Northeast, Columbia County, and the Harlem Valley Rail Trail Association as witnesses regarding community character and related impact issues. The Intervenors also submitted, as part of their petition for party status, the Town of Ancram's Development Plan adopted in 1972. The plan emphasizes, among other goals, providing a predominantly open and rural character to the Town, preserving the natural environment, and encouraging recreational activity. Impacts on the existing character of the community will be an issue for adjudication.

Need for the Project and Economic Impacts

The DEIS asserts that minerals from the proposed mine will be used to supply materials to the Applicant's block plant in Dover, Dutchess County (DEIS p. 12). The Intervenors have questioned whether this additional mineral source is needed, in view of the statement by one of the companies related to the Applicant that the Palumbo Sand and Gravel Company's mine in Dover Plains had an estimated life of 20 years as of 1992, and in view of other mines already in existence in the area of the present project and the block plant. The Intervenors also asserted that the project would have severe impacts on the property values of nearby residences, but conceded that this would only be considered if it is determined that the project will have unavoidable environmental impacts which require that the impacts be balanced against the need for the project. The Intervenors requested leave to make an offer of proof regarding impacts on property values in the event that such unavoidable impacts are found.

The Interim Issues Ruling in the matter of Lane Construction Company (ruling dated February 22, 1996) contains a discussion of the extent to which property values and economic impacts are to be considered in the DEC hearings on mining applications. Adverse economic impacts only come into the record to refute an applicant's allegations of economic or social benefits which offset unmitigatable environmental harm. If a project is shown to have no adverse environmental impacts which are not mitigated or avoided through permit conditions, the economic need for or benefits from the project would not have to be evaluated.

If the Applicant in the present hearing chooses to present evidence regarding the need for the project, or to argue that the DEIS demonstrates sufficient need for the project to outweigh adverse environmental impacts that remain when the permit conditions are taken into account, the Intervenors will be allowed to make an offer of proof regarding adverse economic impacts on the community. At present, both the Applicant and the Department Staff argue that there are no issues that require adjudication regarding adverse environmental effects of the project, and that the project can be approved as conditioned in the draft permit.

Alleged deficiencies in mapping

6 NYCRR 422.2(b) and 422.3(c) specify the information that needs to be included on a mining map and on a reclamation map, respectively. (6 NYCRR 422.1(c) contains additional requirements concerning maps in mined land use plans.) The map requirements were discussed at the issues conference and the maps were amended by the Applicant. The Intervenors now argue that even after the amendments, the maps still fail to show certain things which are required to be shown and which the Mined Land Reclamation Specialist who reviewed the application confirmed should be shown when the earlier maps were discussed. Where the Department requests information which is reasonably necessary to make any findings or determinations required by law and that information is not provided, it is a basis for denying an application (6 NYCRR 621.15(b)).

In addition, there are inconsistencies within the maps that were identified by one of the Intervenors' proposed witnesses on the second day of the issues conference, and there remains an unresolved question regarding whether these were corrected by the revision of the reclamation map and the two revisions of the mining map. Among these alleged inconsistencies are ones which would show sections of the reclaimed slopes as being steeper than those allowed by the mining regulations (presumably 6 NYCRR 422.3(d)(2)(v)), and ones which would illustrate conditions that would be impossible to construct in the course of mining or reclamation. The Intervenors also allege that the topography shown on the reclamation map would interfere with use of tractors, on a site whose intended use after reclamation would be agriculture. The conflict between the width of the berms (and the edge of the mining area) as depicted on the maps versus the width of the berms as discussed in the erosion control plan does not appear to have been resolved, and there are perimeter berms and ten foot high dikes that are shown on the maps in the current erosion control plan but not on the mining map.

Since the mining map and the reclamation map would become part of the permit, approving the maps with such inconsistencies uncorrected would create a situation in which it would be difficult or impossible for the Department Staff to determine whether the project was being carried out in compliance with the permit and/or the mined land regulations. A problem of interpreting erroneous site plans arose in the Dover enforcement case, involving drawings prepared by the same person who prepared the mining map and reclamation map in the present case (see particularly paragraphs 47 and 48 of the Hearing Report regarding the Dover enforcement action). The Department should not grant a permit that is ambiguous.

Although the Department Staff cited 6 NYCRR 422.1(c) as not requiring a survey map or mapping at a level beyond that provided by the Applicant, the regulation cited is a minimum requirement for applications generally, not a prohibition against requiring more detailed or reliable information. Particularly where the information submitted by an applicant appears to be internally inconsistent or inconsistent with regulatory requirements, a closer look is necessary. This is also the case where additional, clear information about a project is necessary in order to evaluate and mitigate significant adverse environmental impacts.

Alleged need for additional permit applications

The Intervenors argued that certain additional permit applications are required for the project, pursuant to 6 NYCRR 621.3(a)(3), which requires that if a project requires more than one permit from the Department, the applicant must submit all the necessary applications or demonstrate that there is good cause not to do so. As discussed in several of the sections above, no air permit is required for the portable screen if the project operates as conditioned in the draft permit, and no water quality certification is required (since no wetlands approval from the Corps of Engineers is required). The question of whether a SPDES permit for storm water is required remains unresolved and will depend on the outcome of the drainage and erosion control issue. The Intervenors have not identified how sending the minerals from the Ancram mine to facilities operated by the Applicant or its related companies in Dover would necessitate any changes in the permit for the Dover sand and gravel mine.

Appeals

Pursuant to 6 NYCRR Subdivisions 624.6(e) and (g), and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.

Any appeals must be received at the office of the Commissioner no later than March 1, 2001, at the following address: Commissioner John P. Cahill, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1010. Any responses to such appeals would need to be received by March 15, 2001, at the same address. The parties are to transmit copies of any appeals and replies to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner.

Any request for an adjustment to the appeal schedule must be made to the Chief ALJ, at the Office of Hearings and Mediation Services address.

Exhibit List and other Matters

Enclosed please find a revised exhibit list. This lists the documents which the parties requested be market as exhibits, plus a ruling and several additional documents that were provided at the issues conference or after the date of the lists of proposed exhibits.

The exhibits are marked for identification only at this point, and have not been moved in evidence or received in evidence. They can be proposed as exhibits in evidence in the adjudicatory hearing, to the extent that they are relevant to the issues for adjudication. At present, they are part of the record as offers of proof, changes or supplements to the application, notices, rulings and other types of documents in the hearing record.

Please also note that there has been correspondence to or from me that is in the correspondence file of the hearing record but that was not marked as exhibits.

Also enclosed is a revised service list.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
February 9, 2001

Encls.

TO: Persons on Revised Service List

cc: Michele Haab, Esq.

1 The 1986 civil settlement of a 1985 ticket against Palumbo Sand and Gravel in Dover Town Court will not be considered, due to the date of this matter and the ten year time period for considering an applicant's record under the Enforcement Guidance Memorandum.

2 It is unclear whether the Applicant would want to accept the permit condition, to modify the project to mine around the waste, or to adjudicate the addition of this permit condition.

3 The four line-of-site-profiles in the DEIS also depict the entire site rather than taking the phases into consideration.

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