Peckham Materials Corporation - Decision, January 28, 1994
Decision, January 28, 1994
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
In the Matter
- of the -
Application of PECKHAM MATERIALS CORP. for permits to
excavate sand, gravel and quarry stone, in conjunction with a processing facility,
in the Town of Easton, Washington County.
DEC Project No. 5-5326-00021/00001-1
January 28, 1994
DECISION OF THE COMMISSIONER
The attached Hearing Report of Administrative Law Judge ("ALJ") Edward Buhrmaster on the application of Peckham Materials Corp. for permits to excavate sand, gravel and quarry stone, in conjunction with a processing facility, in the Town of Easton, Washington County, is adopted as my Decision in this matter, subject to my comments below. The Hearing Report, along with the other materials referenced at the end of the report, is also accepted as the Final Environmental Impact Statement ("FEIS") for this action, in which the Department is the lead agency pursuant to the State Environmental Quality Review Act ("SEQRA").
Two issues were actually adjudicated in this matter: (1) mining impacts upon groundwater resources, including neighboring wells and springs; and (2) the efficacy of a tree planting plan, outlined in DEC Staff's draft permit, to mitigate off-site visual impacts.
On the first issue, I agree with the ALJ that a contingency plan to provide water for nearby well and spring users is unnecessary since the groundwater used by these residents will not be affected by the project as conditioned by the draft permit. On the second issue, I find that with amendments proposed by the ALJ, the tree planting plan will ensure that the mined rock faces are screened to a level that is adequate given SEQRA considerations.
General mining condition No. 13 and special mining condition No. 24 adequately address concerns about historic and archeological resources that may yet be discovered as the project moves forward. Furthermore, the FEIS, which includes the record of this proceeding, affords an adequate basis for rendering the SEQRA findings which are necessary for this project to be approved. I certify that:
- The requirements of 6 NYCRR Part 617 have been met;
- Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the action hereby approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the final environmental impact statement; and
- 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 by incorporating as conditions to the decision those mitigative measures which are identified in the draft permit prepared by DEC Staff, as supplemented and amended by the ALJ's hearing report.
Department Staff is hereby directed to issue a permit consistent with the ALJ's written recommendation.
IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York, this 28th day of January, 1994.
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, Commissioner
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
In the Matter
- of the -
Application of PECKHAM MATERIALS CORP. for permits
to excavate sand, gravel and quarry stone, in conjunction with a processing facility,
in the Town of Easton, Washington County.
DEC Project No. 5-5326-00021/00001-1
- by -
Background and Brief Project Description
Peckham Materials Corp. ("the Applicant") owns a 92-acre site on the east side of Route 40 about 1.25 miles south of Route 29 in the Town of Easton, Washington County. It proposes to use the site for the excavation, quarrying and on-site processing of sand, gravel and consolidated materials. This is expected to be a 100-year project, during which about 72 acres are proposed to be disturbed. Processing equipment is expected to include a primary crusher, a secondary crusher, tertiary crushers, screens and conveyors.
Pursuant to Article 23, Title 27, of the Environmental Conservation Law of the State of New York ("ECL") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420-423, the Applicant has applied for a Mined Land Reclamation Permit. Also, pursuant to ECL Article 19 (Air Pollution Control) and 6 NYCRR Part 200 et seq. (Prevention and Control of Air Contamination and Air Pollution) the Applicant has applied for permits to construct air contamination sources related to its crushing and screening facility. These applications were filed and have been processed pursuant to ECL Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); and Article 8 (State Environmental Quality Review ["SEQR"] Act); as well as 6 NYCRR Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures) and Part 617 (SEQR).
As lead agency, the Department of Environmental Conservation ("the Department" or "DEC") determined that the project may have a significant effect on the environment and issued a Positive Declaration on February 23, 1989. A Draft Environmental Impact Statement ("DEIS") was prepared by the Applicant and accepted as complete by Department Staff on August 10, 1990.
Legislative Public Hearing Session
Upon Department Staff's determination that a hearing be held on the project, this matter was referred to the Department's Office of Hearings and assigned to Administrative Law Judge ("ALJ") Edward Buhrmaster. A Notice of Public Hearing, dated October 25, 1990, was prepared by the Office of Hearings and published in The Greenwich Journal and Salem Press on November 1, 1990, and in the Department's Environmental Notice Bulletin on October 31, 1990. Copies of the notice were mailed to local officials and others deemed interested in the project, including persons who had already made comments on the DEIS.
A legislative hearing was held on the evening of December 3, 1990, at the Easton Town Hall on Route 40 in North Easton, New York. Twenty people spoke at the hearing. All were local residents opposed to the project. Many of the residents were affiliated with a local citizens group, Save Easton Environment, which also filed for party status.
Apart from oral comments made at the public hearing, about two dozen written statements were filed with the ALJ. Two statements expressed support for the project: one from Morehouse Construction Corp., a small excavating and asphalt paving business in Middle Falls, New York, which expressed a need for a new source of quarry stone; and another from a farmer in Schaghticoke, New York, who said the project would provide an affordable source of limestone dust for spreading on his fields.
The remaining written statements, most from local residents, expressed opposition to the project or requested closer study of project impacts. Groups opposing the project included the Battenkill Conservancy (N.Y.) and the Hudson Mohawk Group of the Sierra Club. The American Farmland Trust said more careful consideration should be given to the project's impact on the surrounding agricultural community. The Washington County Advisory Council on Historic Preservation said there should be further studies of impacts to local historic resources.
Comments against the project or seeking further study of its impacts focused mainly on the following concerns, which were later proposed as issues for adjudication: visual impacts upon historic properties; impacts upon archeological resources; blasting and mining impacts upon groundwater resources; blasting impacts upon wildlife and historic structures; truck traffic impacts; impacts to the local agricultural district; property value impacts; impacts to community character; and impacts from dust and stormwater runoff. Special concern was expressed about the project's projected visual impact from the Saratoga Battlefield (in Stillwater, about six miles southwest of the project site), the Saratoga Battle Monument (in Schuylerville, about 3.8 miles northwest of the site), and various parts of a rural historic district along New York State Route 40 in the Town of Easton, which is less than a mile north of the site, and comprised of 19th century farmsteads.
Convening of Issues Conference
A pre-adjudicatory hearing issues conference was convened on December 4, 1990. Its purpose was to identify issues that would require adjudication and to hear requests for party status by three prospective intervenors: Save Easton Environment ("SEE"), the Battenkill Association of Concerned Citizens ("BACC"), and George Houser, a local resident who filed on his own behalf and as secretary-treasurer of BACC. After a brief discussion, the conference was adjourned upon the agreement of all parties. This was done for negotiations, which proved unsuccessful.
The conference resumed on January 15, 1991, at which time the Department Staff, joined by the prospective intervenors, moved orally that a Supplemental Draft Environmental Impact Statement ("SDEIS") be prepared pursuant to 6 NYCRR 617.8(g)(1)(ii). Arguments were also heard as to whether the Applicant should submit "additional information which is reasonably required to make findings or determinations required by law" [6 NYCRR 621.15(b)].
On July 9, 1991, the ALJ ruled that the Applicant prepare an SDEIS addressing project impacts upon groundwater, historic and archeological resources, and various bird species that might be affected by project-related blasting. The Applicant was required to provide more detail regarding its blasting plans and to supplement its discussion of project alternatives with a more detailed evaluation of possible "downsized" projects that would eliminate visual impacts upon the Saratoga battlefield and battle monument.
Upon appeal of the Applicant, the Commissioner affirmed the ALJ's ruling on January 27, 1992, except as to project alternatives, which he said did not require supplementation.
On August 5, 1992, DEC Staff accepted a SDEIS from the Applicant as adequate for public review. Pursuant to public notice, comments on the SDEIS were received up until October 16, 1992. The issues conference resumed on November 17, 1992, at the Easton Town Hall. It continued on November 19, 1992, at the Easton Methodist Church on Route 40, also in the Town of Easton.
The Applicant was represented at the issues conference and throughout the subsequent adjudicatory hearing by the Syracuse law firm of Devorsetz, Stinziano, Gilberti and Smith, P.C. (William Gilberti, Esq., of counsel, and Rosemary Stack, Esq., special counsel).
The Department Staff was represented by Steven L. Brewer, Assistant Region 5 Attorney, Ray Brook, New York, except during one day of the adjudicatory hearing, at which Malcolm A. Coutant, Region 5 Attorney, appeared instead.
BACC and George Houser were represented at the issues conference and throughout the adjudicatory hearing by the Clifton Park law firm of Ianiello, Anderson, Reilly, Luhn, Nichols and Lecce (Rosemary Nichols, Esq., of Counsel).
SEE was represented at the issues conference by the Saratoga Springs law firm of King, Murphy, Adang and Arpey (Anthony P. Adang and Stephen Rodriguez, Esqs., of counsel) and at the adjudicatory hearing by Ianiello, Anderson, Reilly, Luhn, Nichols and Lecce (Ms. Nichols, of counsel), in a consolidation with the other intervenors.
The proceedings at the issues conference are detailed in rulings of the ALJ on party status and issues, dated February 12, 1993. In those rulings the ALJ found that the SDEIS, as accepted by Staff in August, 1992, was substantially compliant with the Commissioner's interim decision, dated January 27, 1992, rejecting intervenors' claims to the contrary. He also found that among the issues proposed by the intervenors, two met relevant standards for adjudication: (1) mining and blasting impacts upon groundwater resources, including neighboring wells and springs; and (2) the efficacy of a tree planting plan (which was outlined in Staff's draft mined land reclamation permit) to mitigate off-site visual impacts.
The ALJ's rulings were appealed by both the Applicant and the intervenors. They were upheld in an interim decision of the Commissioner, dated March 15, 1993.
Reconvening of the Issues Conference - - Historic and Archeological Resources
In his February, 1993 issues rulings, the ALJ reserved decision on whether there were issues related to historic and archeological resources that the intervenors alleged to be on-site. A ruling was deferred pending a site visit that occurred on April 28, 1993. The circumstances of that visit, the subsequent excavation of a land feature alleged by the intervenors to be a Native American "fire mound", and the reconvening of the issues conference on May 5, 1993, are detailed in the ALJ's supplemental issues ruling, dated June 22, 1993. That ruling found no issue to exist and no further action or site surveillance to be required.
In his ruling, the ALJ noted that the "fire mound" feature had not been deemed eligible for listing in the state register of historic places and could not be found, upon excavation, to be an object of historic significance, which would require consideration under SEQRA. In the absence of a contrary offer, the ALJ also accepted the conclusion of the Applicant's archaeologist that ceramic fragments uncovered during the "fire mound" excavation postdated the Civil War. This conclusion was significant since the state Office of Parks, Recreation and Historic Preservation ("OPRHP") had indicated in a June 10, 1993 letter that if the ceramics were 19th or 20th century in origin, the site where they were found would not meet criteria for listing in the state or national registers of historic places, and no further archeological excavations would be warranted.
The ALJ's supplemental issues ruling was appealed by the intervenors and affirmed by the Commissioner in an interim decision, dated July 30, 1993.
On November 17, 1993, the intervenors moved to reopen the issues conference based on new information about the project site's archeological resources. In a memorandum dated November 22, 1993, the ALJ denied the motion as inadequate on its face. The ALJ said the only new information alleged in the motion were opinions attributed to Paul Huey, an OPRHP archaeologist, which were alleged to have caused a change in that agency's position.
According to the intervenors' motion, Mr. Huey had reviewed the ceramic fragments that were retrieved from the "fire mound" excavation and had concluded that they dated from the Revolutionary War era. The motion related this conclusion to a statement in OPRHP's prior letter that if the fragments predated the 19th century, "it is possible that additional testing within the site area would be warranted."
The ALJ provided a copy of his memorandum denying the intervenors' motion to OPRHP. The memorandum said that if OPRHP wanted to supplement its prior letter, it should do so promptly. OPRHP responded in a letter dated December 6, 1993, from Bruce Fullem, assistant director of its field services bureau. Mr. Fullem's letter acknowledged that since June, 1993, the ceramic fragments had been assessed by Mr. Huey, and that Mr. Huey had found they were 18th century in origin, and probably from the 1770's. The letter continued as follows:
"Given the great age of this site and the potential that it may relate to the events of the Revolutionary War period, it is the opinion of the OPRHP that additional archeological excavations at the site should be conducted. The goal of these investigations should be to gather enough information about the site's size, integrity, and artifactual material so that an assessment of the site's significance can be made. If this work is completed and based upon OPRHP review it is determined that the site does not meet the criteria established for determining historic significance, then OPRHP would recommend that no further archeological work would be needed and there would be no remaining outstanding issues. If additional archeological work indicates that the site is historically significant, data recovery excavations designed to mitigate the project impacts to the site would be recommended."
Mr. Fullem's letter was discussed during a conference call initiated by the ALJ and held on December 10, 1993. During this call the Applicant expressed interest in negotiating an additional permit condition which would address OPRHP's concerns. This proposal was endorsed by the ALJ and an opportunity provided for discussions among the Applicant, OPRHP and DEC Staff.
On December 20, 1993, Staff announced a new draft mining permit condition (special condition No. 24) which it said satisfied both the Applicant and OPRHP. The Applicant's acceptance of the condition was confirmed during a conference call, also on December 20, 1993, which was initiated by the ALJ.
During this call the ALJ set a schedule by which the intervenors could comment on the new condition. He ruled that this condition should be considered in the context of the entire draft permit, OPRHP's consideration of the historic ceramics (as noted in Mr. Fullem's correspondence) and an assessment of DEC's duties with regard to on-site archeological resources.
Pursuant to the ALJ's schedule, the intervenors' comments were received on December 28, 1993. Responses by the Applicant and DEC Staff were received on January 4, 1994, on which date the hearing record closed.
Since further proceedings are not deemed necessary, the intervenors' comments are addressed within the "Discussion" section of this report. Relevant conclusions and recommendations, which are subject to the Commissioner's review, are incorporated at the end of the report.
The adjudicatory hearing in this matter was held on April 21, 22, 23, and 26, and May 4 and 5, 1993, at the Easton Town Hall, North Easton, New York.
Prior to the hearing the parties were ordered to pre-file their testimony. This was done pursuant to 6 NYCRR 624.7(b)(6)(ii) to eliminate surprise, ensure a clear record, and expedite the hearing. The Applicant was ordered to pre-file first since it has the burden of proof.
Regarding groundwater impacts, pre-filed testimony was received as follows:
- For the Applicant, from Gordon M. Stevens, a hydrogeologist with Dunn Corporation in Chicago, Illinois; Robert C. LaFleur, Dunn's regional manager of operations permitting in Albany, New York; and Jeffrey T. Lang, a senior geologist and hydrogeologist with George L. Marshall Engineering Geologists in Averill Park, New York. (The Marshall firm prepared the project DEIS and the Dunn firm prepared the section of the SDEIS which is titled, "Supplemental Hydrogeologic Information and Investigation.")
- For the intervenors, from Roger Waller, a private hydrogeologic consultant in East Greenbush, New York; and Janet Stewart, an Easton resident and co-chair of the intervenor group SEE.
Regarding the tree planting plan, pre-filed testimony was received as follows:
- For the Applicant, from Joseph M. McMullen, a plant ecologist and botanist with Terrestrial Environmental Specialists, Inc., in Phoenix, New York; Paul H. Griggs, a senior engineering geologist with George L. Marshall Engineering Geologists in Averill Park, New York; and Peter Loyola, a landscape architect with Continental Placer, Inc., in Albany, New York, who has experience in mining site reclamations. (Robert Lafleur, one of the Applicant's hydrogeology witnesses, also testified regarding the tree planting plan.)
- For the intervenors, from Robert N. Coughlan, a self-employed forestry consultant in Queensbury, New York.
- For the DEC Staff, from John T. Hastings, a senior forester with DEC's Region 5 sub-office in Warrensburg, New York.
Exclusion of Blasting Impacts as Hearing Issue
As noted above, the ALJ's ruling of February 12, 1993 certified as a hearing issue the impacts of mining and blasting upon groundwater resources. Blasting impacts were made a hearing issue based on the intervenor SEE's offer that blasting would likely close fissures in bedrock, thereby restricting the amount of water for adjacent bedrock wells. This offer, attributed to the intervenors' expert, Roger Waller, ran contrary to a federal survey that was cited by the Applicant and attached to its SDEIS. That survey found that well performance and water quality are unaffected by blasting-generated ground vibrations.
Quoting from the issues ruling (at page 13), "Whether blasting here would close fissures, as SEE contends, or open them, as the Applicant contends, is at this point a matter of differing expert opinions. Therefore, an issue is joined, and the effects of excavation and blasting upon groundwater supplies will be considered as a matter for adjudication."
As part of its case, the Applicant pre-filed testimony from two blasting experts, Roland L. Pritchard and Stanley R. Pilshaw. No testimony on the blasting issue was filed either by DEC Staff (which, at any rate, did not seek to raise the issue) or by the intervenors.
At the issues conference, the intervenors' counsel, Ms. Nichols, had said that her expert, Mr. Waller, was prepared to testify about the impact of blasting upon existing cracks and fissures. But at the adjudicatory hearing she conceded that Mr. Waller had warned her he was not an expert on blasting per se and did not want to be put forward in that manner.
In the absence of contrary testimony, the Applicant moved that the ALJ make findings based on the testimony from its two blasting experts, Mr. Pritchard and Mr. Pilshaw. The Applicant said it would be an undue hardship to call its experts for cross-examination since they were both from outside New York State, and since, at any rate, there was no longer a dispute on the blasting issue. The Applicant's motion was opposed by both DEC Staff and the intervenors, who argued that even with no evidence of their own, the intervenors should still have the chance, through cross-examination, to defeat the Applicant's case.
Having heard the parties' arguments, the ALJ ruled not to admit the testimony from Mr. Pritchard and Mr. Pilshaw, and not to make findings at all on the blasting issue. The ALJ ruled that the blasting issue was in effect eliminated by the intervenors' failure to file testimony, as it was raised in the first case only because of the intervenors' issues conference offer. The ALJ's ruling means that in the context of this report, groundwater impacts are limited to those that are related to mining excavation.
Other Rulings on Pre-Filed Testimony
During the course of the adjudicatory hearing several motions were made to strike all or parts of various witnesses' testimony. These motions were addressed as follows:
- The Applicant moved to strike all of the intervenors' pre-filed testimony as having been submitted past the deadline set in an ALJ's hearing scheduling memorandum. This motion was denied as the remedy was considered too harsh, and since the Applicant had not shown that it was substantially prejudiced by the filing delay.
- The Applicant moved to strike all pre-filed testimony of one of the intervenors' prospective witnesses, Joseph Driscoll. Mr. Driscoll is the district manager of the Washington County Soil and Water Conservation District and had been offered on the planting plan issue. The Applicant moved that the testimony be struck as "a fraud upon the tribunal" after it was substantially revised while the witness was on the stand and just prior to his cross-examination. The ALJ struck the testimony because of the degree to which it was changed and the prejudice this caused for the other parties.
- The Applicant moved to strike the pre-filed testimony of intervenor witness Janet Stewart as raising issues that were precluded by an ALJ's written ruling of April 5, 1993. In that ruling the ALJ had precluded the intervenors from asserting any inaccuracy in a well and spring user survey that was ordered of the Applicant (and prepared as part of its SDEIS) other than those inaccuracies which were alleged in the intervenors' comments on the SDEIS. As Ms. Stewart's testimony alleged inaccuracies beyond those allowed by his ruling, the ALJ struck parts of her pre-filed testimony, as shown on the face of that exhibit (Direct testimony of Janet Stewart, Exhibit 16). [The ALJ's preclusion ruling of April 5, 1993, which also excused the Applicant from submitting a corrected well and spring survey, was appealed by the intervenors and affirmed by the Commissioner in an interim decision, dated April 26, 1993.]
- The Applicant moved to strike the pre-filed testimony of intervenor witness Roger Waller as incomprehensible. This motion was denied since the ALJ found that this testimony called into question the Applicant's assertions about groundwater resource impacts.
- Various motions were made and granted to strike pre-filed testimony deemed outside the scope of the issues that had been certified for adjudication. For instance, the ALJ struck portions of the testimony of intervenor witness Roger N. Coughlan (Exhibit 13) under the headings "Viewshed Analysis" (on page 2) and "Hydrological Concerns" (on pages 7 and 8).
The partial striking of any witness's pre-filed testimony is shown on the face of the testimony as incorporated as a hearing exhibit. Minor corrections to any witness's testimony were marked in pen by the ALJ prior to the testimony's receipt as part of the hearing record.
SUMMARY POSITIONS OF THE PARTIES
Position of the Applicant
The Applicant contends that it has mitigated to the maximum extent practicable any potential impact its mining might have upon groundwater resources. It finds there is no evidence that the mining operations, as controlled by the draft permit, will have an adverse effect upon the quantity or quality of groundwater resources. Therefore, the Applicant says there is no need to consider further mitigation measures proposed by the intervenors. These measures include a contingency plan for the Applicant's provision of water to off-site users of wells and springs.
Position of DEC Staff
According to DEC Staff, the proposed mining activities should not have a significant adverse effect on groundwater resources, including neighboring wells and springs. Staff agrees with the Applicant that the potential for impacts has been mitigated or avoided to the maximum extent practicable, in compliance with SEQRA.
Given a lack of foreseeable off-site impacts, Staff agrees with the Applicant that it is unnecessary to require a contingency plan to provide water for neighboring well and spring users.
Position of the Intervenors
The intervenors contend that the Applicant has not mitigated groundwater impacts to the maximum extent practicable. They assert that the Applicant has ignored a mounded water table beneath a hill on the western edge of the site. They are concerned that this water table will be breached before adequate monitoring occurs and that this will restrict the supply of water to neighboring wells and springs.
Should the Department grant a mining permit, the intervenors request that the Applicant be required to furnish water to adjacent landowners in the event that their supplies become insufficient, unless and until the Applicant can disprove responsibility. The text of this and other conditions proposed by the intervenors is included in the discussion section of this report.
TREE PLANTING PLAN
Position of the Applicant
To mitigate off-site visual impacts, the Applicant accepted a tree planting plan, proposed by DEC Staff, for screening the mined rock faces. (This plan is outlined below in the findings of fact.)
According to the Applicant, the tree species chosen are suitable for the site, and the soil conditions will be such that the trees will grow to heights of 50 feet and more, thereby achieving their intended result, which is the eventual screening of the mined rock faces. The Applicant finds that wind, temperature, frost and other climatic conditions will not jeopardize the success of the planting plan.
Position of DEC Staff
DEC Staff agrees that the planting plan should succeed in terms of its screening function. According to Staff, the trees will have adequate sunlight, water and soil-based nutrients. Staff asserts that the tree species chosen are hardy and appropriate for screening purposes based on growth rate and growth form characteristics, among other factors. Staff does not foresee a problem from the site's climatic conditions, and agrees with the Applicant that site topography will actually create an "amphitheater" effect, shielding the young trees from harsh winds.
To better ensure success of the planting plan, DEC Staff proposed additional permit terms as part of its closing brief. Those terms are outlined in the discussion section of this report.
Position of the Intervenors
The intervenors submit that the planting plan is inadequate to ensure that the trees perform their screening function. They contend that three feet of soil is not sufficient for the trees' survival, and that harsh climatic conditions (winds, summer heat, and deep winter frosts) raise serious and unresolved doubts about the trees' achieving a 60 percent survival rate at the end of their second growing season, as is required by the draft permit and by 6 NYCRR 422.3(d)(2)(vi)(d)].
Since the tree planting plan is key to the project's visual mitigation strategy, the intervenors propose that any permit contain additional and more stringent standards than those proposed by DEC Staff. These standards are outlined in the discussion section of this report.
FINDINGS OF FACT
- Peckham Materials Corp. ("the Applicant") owns a 92-acre parcel on the east side of Route 40 about 1.25 miles south of Route 29 in the Town of Easton, Washington County.
- The Applicant proposes to use this parcel for the excavation, quarrying, and on-site processing of sand, gravel and stone. Processing equipment is proposed to include a primary crusher, a secondary crusher, tertiary crushers, screens and conveyors. (Activities will occur in an area marked as the "site" in "Figure 1", attached to this report.)
- - HYDROGEOLOGY
- On the east side of the project site (as shown on "Figure 1") is Schuyler Mountain (elevation 1,014 feet). Mining is proposed along its western face to an elevation of 870 feet.
- On the west side of the site is an unnamed hill (elevation 600 feet), referred to in this report as the "west" hill. Mining is proposed to occur along its eastern face (as shown in "Figure 1").
- There is a valley (at elevations below 450 feet) at the center of the site. This valley, between Schuyler Mountain and the west hill (and shown as the "central valley" in "Figure 1"), is where the Applicant will have its processing facilities.
- A long fault passes through the middle of the site separating the Hudson-Champlain lowlands (on the west) and the Taconic uplands (on the east). The fault runs in a north-south direction. It is a thrust fault, which occurred as one level of rock was forced over another. It exists not as one distinct break, but as a zone of rock fractures.
- Over time this fault has healed through a process of calcification. This occurs as calcite precipitates from water moving through the rock fractures. The calcite eventually fills the rock fractures, closing them to groundwater percolation.
- Two unconnected aquifers lie beneath the surface of the site. One is in bedrock, and the other is in the unconsolidated materials that are closer to the ground surface. Aquifers are water-bearing strata of permeable rock, sand or gravel.
- - Bedrock Aquifer
- Groundwater flow within the bedrock aquifer is uniformly from east to west across the site. It moves along a steep hydraulic gradient that is generated by Schuyler Mountain as the site's highest point. From there, the groundwater flows toward the Hudson River, which is west of the project site.
- With the exception of that portion underneath the west hill, the bedrock aquifer underlying the project site is confined by glacial till and clay-rich, finely grained lake sediments. Beneath the west hill, it is semi-confined by thick, moderately fractured bedrock.
- The bedrock aquifer is artesian, meaning that when wells pierce the aquifer, water is raised above the aquifer surface.
- The artesian bedrock aquifer west of Schuyler Mountain has a potentiometric surface above ground level in most areas. The potentiometric surface is an imaginary plane to which water will rise and become static in a well that is sunk into a confined or semi-confined aquifer. Where that surface is above ground level, it is manifested by local wells that are flowing at the ground surface.
- - Unconsolidated Aquifer
- Overlying the project site's bedrock are layers of unconsolidated materials, which consist of till, lacustrine, delta and ice-contact outwash deposits. The delta and ice-contact outwash materials have fairly high permeability and infiltration capacity. Hence, they furnish a sizeable supply of groundwater both at the site and for neighboring wells and springs.
- The aquifer in the unconsolidated materials is separated from the bedrock aquifer by the confining layer referred to above. This layer of highly-compacted material precludes high volume direct percolation of recharge water from the unconsolidated aquifer to the bedrock aquifer. In effect, it isolates the bedrock aquifer from the unconsolidated aquifer, and allows for the saturation of the unconsolidated materials in the valley between Schuyler Mountain and the west hill.
- Groundwater in the site's unconsolidated aquifer flows with a strong northerly component toward and eventually into a stream that passes through the center of the project site. At an elevation of about 340 feet, this stream is also fed by surface runoff from direct precipitation and snowmelt from the surrounding upland areas.
Existing Recharge Patterns
- Under current conditions, precipitation percolates into and thereby recharges the unconsolidated aquifer. This water ultimately enters the on-site stream or slowly infiltrates downward to the till or bedrock interface.
- The bedrock aquifer beneath the site receives most of its recharge from the large upland area of Schuyler Mountain. Recharge occurs as the result of widespread, low volume percolation through the overlying unconsolidated materials on Schuyler Mountain, and also from precipitation falling directly on the mountain's exposed rock outcrops.
- Precipitation that does not penetrate and thereby recharge the bedrock aquifer flows down the mountain along the till/bedrock contact and either recharges the unconsolidated aquifer or is discharged to the stream that flows through the site's central valley.
Project Impacts on Aquifer Recharge
- Once mining begins, runoff and recharge will occur generally as before, with insignificant variations.
- In the bedrock aquifer, slightly more recharge will occur as overlying unconsolidated materials are removed and the bedrock is exposed more directly to precipitation. Recharge will occur as the precipitation percolates toward the bedrock aquifer along joints, fractures and bedding plane partings, in much the same manner as now.
- No mining will be permitted within the bedrock aquifer; therefore, it will not be affected directly.
- In the unconsolidated aquifer, slightly less recharge will occur, given the diversion of more precipitation to the bedrock aquifer.
- Excavation below the water table in the unconsolidated aquifer will be permitted only for the construction of settling ponds.
- The settling ponds in the site's central valley will remove sediment from quarried stone. In effect, they will displace those parts of the aquifer into which they are built.
- Under the Applicant's mining plan, some surface water will collect in sumps within the mine quarry rather than flow directly into the unconsolidated aquifer. But water collecting in these sumps will be pumped to the settling ponds, from which the aquifer will be recharged.
- The settling ponds will operate in a "closed-loop" system by which water will be removed from the ponds for stone processing and then returned to the ponds.
- The only water lost to this system will be small amounts removed by pond evaporation or on the surface of wetted stone. This loss will be insignificant in relation to the large amount of water now held within the site's unconsolidated aquifer. Hence, there will be no impacts to the unconsolidated aquifer, wells within the aquifer, or the stream that drains the aquifer.
- Construction of the settling ponds will slightly increase the storage capacity of the unconsolidated aquifer.
- A well (SW-1) predating the Applicant's purchase of the Easton property is located at the northwest border of the project site.
- This well has an approximate surface elevation of 345 feet and is about 50 feet deep. It has a potentiometric surface of about 4 to 5 feet above grade (in other words, about 350 feet) and is therefore classified as a flowing artesian well.
- Because the well is flowing in the vicinity of exposed bedrock, it must encounter a confining bedrock unit somewhere between its surface elevation (345 feet) and its drilled depth (295 feet). To feed the well, the upper limit of the groundwater beneath the confining layer, and therefore within the bedrock aquifer, must also be between these elevations (most likely just above 295 feet, since drilling likely stopped when water was first encountered).
- The SW-1 well is due north of the west hill's summit (as shown in "Figure 1"). Assuming a westerly flow gradient, the well indicates that the potentiometric surface of the hill's bedrock aquifer is also at or about 350 feet elevation, and that the aquifer itself is somewhere between the elevations of 295 and 345 feet.
Dry Limestone Quarry
- On the northern perimeter of the west hill and near the SW-1 well is an abandoned limestone quarry. About one-half acre in size, the quarry predates the Applicant's purchase of the project site in the late 1980's.
- The quarry has a floor elevation of about 345 feet. There is no expression of groundwater on the quarry floor or in its 30-foot-high faces.
Proposed Permit Controls on Mining
- Prior to any bedrock mining below the elevation of 350 feet, DEC must approve a plan, to be developed by the Applicant, which would require installation of monitoring wells.
- These wells would establish the precise location of the seasonal high groundwater level within the bedrock aquifer. The Applicant would not be able to mine within five feet of this level, as determined by its investigation. (See special mining condition No. 5 in the DEC draft permit.)
- The Applicant has proposed to mine to an average floor elevation of 370 feet on the east side of the site and 310 feet on the west side of the site. Regardless, mining would be prohibited within five feet of the seasonal high groundwater level in bedrock. Hence, the maximum depth of mining will ultimately be determined by findings from the monitoring wells referred to in the two preceding paragraphs.
- As initially proposed, this project included plans for installation of an on-site bedrock well to furnish water for the processing facility. This well is no longer proposed as the site's unconsolidated aquifer should be able to produce all the water needed for the mining operation.
- Special mining condition No. 20 in DEC's draft mining permit provides that "water for industrial uses shall be used from unconsolidated aquifer deposits only. Installation or use of process water from a deep consolidated bedrock well will require a modification to this permit."
- Another special mining condition (No. 21) requires the Applicant to monitor and report to DEC the water elevations in the on-site bedrock well (SW-1) and in the unconsolidated aquifer. This is to occur during the life of the project or until DEC indicates otherwise.
- Should this project have unanticipated adverse impacts upon groundwater quantity, special mining condition No. 21 is designed to identify them on-site before there are off-site repercussions.
- - TREE PLANTING PLAN
- The mining project proposed by the Applicant will have off-site visual impacts. The most significant of these adverse impacts will be to the Saratoga Battle Monument (in Schuylerville, about 3.8 miles northwest of the project site) and various parts of a rural historic district along New York State Route 40 in the Town of Easton. This district, less than a mile north of the site, is comprised of 19th century farmsteads.
- Mined areas of Schuyler Mountain at and above 370 feet will be visible from the Saratoga Battle Monument. Mined portions of the west hill at and above 400 feet will be visible from structures within the historic district.
- To mitigate visual impacts, the Applicant has accepted a permit condition imposing a tree planting plan for the mined rock benches at elevations above 370 feet. The faces exposed on these benches will be up to 50 feet high. Key provisions of the tree planting plan are as follows:
- A minimum of 36 inches of topsoil material capable of supporting vegetative growth shall be uniformly spread over all bench areas where tree planting will occur for reclamation. (See special reclamation condition No. 4.)
- After soil preparation and seeding of grasses and legumes, two staggered rows of fast growing hybrid poplar shall be planted, on a 6' x 6' basis, at the back of each mined bench above 370 feet. Two staggered rows, on a 6' x 6' basis, of red and white pine shall be planted in front of the poplar on each bench above an elevation of 370 feet. (Special reclamation condition No. 5.)
- Concurrent reclamation shall be carried out on all those portions of the benches that have reached completion. (Special reclamation condition No. 6.)
- The tree species chosen for use in the planting plan are all hardy and common in upstate New York. Two of them, red and white pine, now grow at the project site.
- Red pine (Pinus resinosa) is an evergreen tree native to the U.S. northeast. It is common on level and gently rolling sand plains, although it does not require sandy soils. Climate within the red pine's range consists normally of cool-to-warm summers, cold winters, and low to moderate rainfall, including periodic summer droughts.
- Red pine is a tall tree with a smooth, straight, slightly tapered trunk and a symmetrically oval crown. Mature trees vary from about 50 to 80 feet in height and one to three feet in diameter.
- Red pine has a tendency to form a "taproot" (or deep vertical root), but will also grow lateral, wide-spreading roots.
- Red pine grows slowly at first and may require eight years to reach breast height. Thereafter, growth ranges from about one to two feet per year, depending on site characteristics.
- White pine (Pinus strobus) is also an evergreen tree native to the U.S. northeast. It is common in the shallow soils and slopes of Washington County. While not as drought-resistant as the red pine, it can tolerate some soil dryness. The climate over its range is generally cool and humid.
- White pine is one of the fastest growing northern forest conifers. Growth is slow during the first two to three years; then it accelerates rapidly, peaking at an average annual rate of three feet between the tenth and fifteenth years.
- The white pine's normal root system has just a vestige of a taproot. Typically, three to five large roots spread outward and downward into the soil, giving the tree a firm anchor under most conditions.
- The white pine is a long-lived tree and often attains heights of more than 100 feet. When its tip (or leader branch) is attacked by the white pine weevil, which is not uncommon, its growth may be restricted to a final height of 70 to 80 feet, with the tree assuming a more bushy appearance.
- Like the red pine, the white pine should easily reach 50 feet in height in less than 50 years, when planted on the mined rock benches.
- Hybrid poplars (Populus spp.) are deciduous trees and therefore lose their leaves during winter. As hybrids, these poplars have diverse parentage, but all are characterized as fast-growing trees.
- The clone to be used at the project site has not yet been selected and is not fixed by the draft permit conditions.
- Depending on site characteristics, hybrid poplar can grow from between 2.5 to 8 feet or more per year. At DEC's Wilton experimental site, where cuttings are planted in a flat 1.8-acre field, the hybrid poplars grow about four feet per year.
- At the project site, hybrid poplars will grow between three and six feet per year, given adequate soil, light and water. They will reach 50 feet in nine to 17 years.
- The three feet of soil proposed for the tree plantings will be adequate to ensure a 60 percent survival rate at the end of the second growing season, and to ensure the trees' roots become firmly anchored.
- In a natural condition, poplar revegetate disturbed areas in less than three feet of soil. White pines now grow on the project site as tall as fifty feet in as little as one to two feet of soil.
- The soil volume will also be adequate to ensure a 60 percent survival rate. There will be six feet between trees in each direction, enough space for lateral root development. Also, the soil will be deep enough to retain adequate moisture.
- The site's dominant soil type is Nassau rock outcrop.
- The Nassau rock outcrop soils are shallow, medium-textured, and well drained, but with a high droughtiness factor. They are derived from thin deposits of glacial till overlying the site's bedrock.
- The Nassau rock outcrop soils are especially predominant on the east side of the project site. There the soil is generally one to two feet deep. This thin soil cover is due to the steep slope of Schuyler Mountain.
- The top soil layer (between six inches and one foot) is classified as "A" horizon topsoil, which is rich in organic materials. This soil and the upper subsoil below it (called "B" horizon soil) will be used for reclamation and have moderate to high levels of fertility.
- The site's west hill is underlain by a thick sand and gravel deposit along its northern crest and eastern side. The rest of the hill is generally covered by very thin layers of soil under which there is limestone bedrock.
- Bedrock outcroppings are a prominent feature on the west hill. Where soil exists, it is shallow, mostly Nassau rock outcrop.
- Like Schuyler Mountain, the west hill is now heavily vegetated with conifers and deciduous trees. When mining occurs, the trees will be removed. The soil overburden will be stripped and stored in berms at the site perimeter, then returned to the benches at the time each one is reclaimed.
- Some natural composting of trees, limbs, stumps, brush and other forest litter will enrich the soil during the time it is bermed, thereby ensuring against a loss of the soils' organic properties.
- Once three feet of soil is spread in the areas where trees will be planted, the Applicant will test the soil for nutrients and to see whether lime, fertilizer, or other materials should be added to support the trees' growth.
- The draft permit provides that soil preparation recommendations shall be made by the Washington County office of the U.S. Department of Agriculture's Soil Conservation Service. (Special reclamation condition No. 5.) Recommendations will be made on review of the Applicant's soil tests.
- After planting, trees will not be greatly affected by on-site climatic considerations, including frost, wind, rainfall, sunlight, heat and cold.
- The soils at the site now freeze during the winter, yet root systems are basically unaffected.
- Excessive frost will be curbed and the soil insulated by natural snow cover and the proposed ground cover of grasses and legumes.
- The site's own contours (with the west hill on one side, and Schuyler Mountain on the other) will provide an "amphitheater" effect, shielding young trees from the wind. This effect will be enhanced by the maintenance under permit condition of a 300-foot buffer strip at the northernmost part of Schuyler Mountain, where mining shall be prohibited.
- The "amphitheater" effect will help protect the trees against windthrow, ensuring they stay rooted.
- Windthrow will not be a major concern for two reasons:
- When the trees are young, they will have a small crown size and a center of gravity close to the ground surface.
- When they are older, their roots will mesh with the roots of other trees.
- No watering is planned for the trees and therefore any moisture they receive will be from natural precipitation. Precipitation will be sufficient, and the three feet of soil proposed by DEC Staff will be adequate as a reservoir to retain this moisture.
- The mined benches are proposed to slope backward at a modest angle. Because of this, they will better retain moisture than the much steeper slopes on which trees are now growing.
- Mulching at the base of the trees (with wood chips, for example) will enhance the soil's moisture-retention capacities and better ensure the trees' survival.
- The benches will be fully exposed when the trees are planted. Hybrid poplar and white and red pine all thrive in full sunlight.
Heat and Cold
- Sunlight reflected from the mined rock faces may make the benches warmer than the adjacent forests and valley, especially in the first several years after planting, when vegetation is sparse.
- Mulching at the base of the trees can lessen the heat-induced evaporation of soil moisture and alleviate the impacts of abnormally high soil temperatures, which are most likely on benches facing in a south or west direction.
- Cold winter temperatures will not affect hybrid poplar or red or white pine, as each species now grows in climates colder than what exists at the project site.
Insects and Disease
- The trees will not be affected adversely by insects or disease. Blister rust will attack an occasional white pine, but will not present a significant problem. Neither will gypsy moths, as they do not prefer pine species.
- Any infestation by the white pine weevil will not prevent white pines from reaching heights sufficient to screen the mined rock faces. If anything, such infestations will make the trees more bushy, enhancing their screening effect.
- Apart from the trees to be planted by the Applicant, other trees will naturally establish themselves on the benches, creating a mix of vegetation. This will happen because of the use of soils native to the project site, which hold seeds, roots, and other plant parts that will grow.
- Natural revegetation can also be expected as new seeds are spread to the benches through the air and by wildlife, including birds and squirrels.
- The site's natural revegetation, to occur in conjunction with the tree planting plan, will protect against natural pruning that occurs among the planted tree species.
- Natural pruning occurs as trees lose sunlight under the closed canopy of their higher branches. When this happens, the trees shed their lower limbs.
- Natural pruning occurs most commonly in densely planted mature forests, where trees are already 50 to 60 feet tall. It will not happen here given the narrow depth of the benches, the adequacy of sunlight, and the spacing of trees on a 6' x 6' basis.
- There will be no pruning of evergreen branches at the front of each bench. Even if this happens, natural understory growth will provide additional screening support.
Planting Plan Refinements
- The planting plan, as discussed at this hearing, did not specify the age of trees to be planted or what kind of stock would be used.
- Bare root stock is preferable to containerized stock. It is less prone to shock upon planting and anchors itself better than containerized stock, which tends to be heaved out by frost.
- Two-year-old stock is preferable to five-year-old stock that has spent three years in a seedling bed and two years in a transfer bed. While having a better chance to survive, the five-year-old stock will suffer more stress upon planting, and will likely stagnate in growth, whereas the younger stock will grow faster and be more resilient. Two-year-old stock is also less expensive than older stock, more available, and easier to plant.
- As proposed under permit, mining on Schuyler Mountain shall proceed generally from south to north, then up the mountain to an elevation of 870 feet. (See special mining conditions No. 17 and 22.)
- Reclamation shall be concurrent with the mining activity.
- Passageways and access roads will generally be north of the reclaimed benches. Respreading of soil by a small bulldozer and the routing of vehicle traffic away from the areas under reclamation will minimize soil compaction prior to planting.
- The directional mining proposed for the site will ensure that the last areas mined will be in the northeast and northwest corners. The mining from south to north will help temper adverse impacts of the prevailing winter winds, which blow from the northwest.
Two issues were adjudicated as part of this hearing: (1) mining impacts upon groundwater resources, including neighboring wells and springs; and (2) the efficacy of DEC Staff's tree planting plan to mitigate off-site visual impacts. This section explains the ALJ's findings on these issues and addresses the parties' proposals for modification of the draft permit that was presented by DEC Staff at the outset of the adjudicatory hearing.
The first issue considers the impacts from mining upon groundwater resources at and near the project site. Are adverse off-site impacts reasonably foreseeable? If so, how likely are they, and where will they occur? Have these impacts already been avoided or mitigated to the maximum extent practicable? If not, what different permit conditions are needed?
Here the Applicant had the burden to show that mining, as controlled by Staff's permit, would not affect groundwater quantity in off-site wells and springs. The Applicant met this burden principally with testimony from its two hydrogeologists: Gordon Stevens of Dunn Corporation and Jeffrey Lang of George L. Marshall Engineering Geologists. The Marshall firm prepared the project's DEIS (Hearing Exhibit No. 1) and Dunn Corporation prepared the hydrogeologic report that is part of the SDEIS (Hearing Exhibit No. 2).
These documents reflect a study of the project site based on background literature, aerial photography, geologic mapping, site reconnaissance, and the placement of test pits and borings. The findings of fact, as outlined above, are based on this information and its interpretation by the Applicant's experts.
The intervenors presented as their witness Roger Waller, a private hydrogeologic consultant who is now retired from the U.S. Geological Survey. Mr. Waller expressed doubts about the continuity of the confining layer between the site's unconsolidated and bedrock aquifers. He described the bedrock aquifer as a "leaky" artesian system, meaning that the confining layer is broken and that pressure-driven water could "leak" upward through the rock, into the on-site stream, and underneath the west hill.
Mr. Waller's analysis of this "leaky" artesian system is premised on a statement of Mr. Stevens, the Applicant's expert, that the bedrock aquifer on Schuyler Mountain is recharged by precipitation falling directly on exposed rock outcrops. Mr. Waller states that if water can move down through the rock and into the bedrock aquifer, then it can also move up through the rock as well.
Mr. Stevens voices a similar concern in his hydrogeologic report, where he states that mining below the bedrock water table could potentially penetrate joint or fracture springs welling up in the quarry bottom along the west hill's bedrock ridge. These springs would be the result of the mine intersecting deeply rooted joints or fractures that penetrate the bedrock aquifer, which is artesian and has a potentiometric surface at about elevation 350 feet, according to information from the on-site well (SW-1).
Mr. Stevens calculates that the aquifer or joints and fractures that extend into the aquifer might be intersected by mining between elevations of 300 and 350 feet. But no mining is proposed within the bedrock water table, and by draft permit condition the Applicant must install monitoring wells to investigate the seasonal high bedrock groundwater table prior to any mining below 350 feet. This condition will make it unlikely that the bedrock water table is breached (as even Mr. Waller seemed to agree) and thereby protect neighboring landowners.
On another point, Mr. Waller said it was highly probable that the north-south fault intersecting the project site is affecting the bedrock groundwater flow from the area of Schuyler Mountain, diverting it in either a north or south direction. This appeared unlikely given boring-related evidence that the fault is old and well-healed, its fractures having calcified.
It was not credible that groundwater would flow along this fault since it is a thrust fault and has a horizontal orientation. It is much more likely that the flow is uniformly east to west across the site, as stated by Mr. Stevens. This is because the main upland area, Schuyler Mountain, is on the site's eastern edge. Hence, water flow would likely be from the mountain, where the bedrock aquifer is recharged, west toward the Hudson River basin, which is an area of regional groundwater discharge.
Finally, Mr. Waller's main expressed concern was with an alleged bedrock water table that he said was likely mounded underneath the site's west hill. Mr. Waller said there was a "good possibility" this water table existed at an elevation above 350 feet given the peak elevation of the hill (about 600 feet) and the tendency of water tables to reflect area topography. Mr. Waller said that the hill's limestone dolomite is a good aquifer material, and that the water table is fed by precipitation falling upon the surface of the hill and then moving into the limestone deposits.
Mr. Waller described a scenario in which springs and shallow wells in an area south and west of the site and east of Route 40 would be affected by mining-induced leakage of water from the alleged mounded water table. He said that once excavation begins, "every crack will leak with water," and that water seeping from fractures in the rock could lower the water table, thereby curbing supplies for adjacent wells and springs.
At the ALJ's direction, Mr. Waller delineated the area of projected impact on a well and spring location map prepared by the Applicant. (The map is Figure 2 in the hydrogeology report prepared as part of the SDEIS, which is hearing Exhibit No. 2.)
He was then cross-examined, at which time he seemed to equivocate and even pull back from his prior statements.
When asked if the intersection of the alleged mounded water table would affect proximal groundwater users, Mr. Waller dodged the question and said he was only questioning where the water table is. He acknowledged having no analysis, calculations or methodology to determine the volume of water that would be lost, or whether that loss would have a negative impact. Finally, the ALJ asked whether he could specify which wells and springs would encounter a loss. He responded, "I cannot say there would be a loss with the current mining plan."
Mr. Waller's concerns were effectively rebutted by the Applicant. Its expert, Mr. Stevens, found that Schuyler Mountain causes a fairly steep hydraulic gradient in a westerly direction, and that it is therefore unlikely that a mounded water table exists in a hill so close to the mountain's base.
The west hill is several hundred feet shorter than Schuyler Mountain and has a much smaller recharge area. Any recharge occurring beneath the west hill might reduce the hydraulic gradient from Schuyler Mountain west to the Hudson River. But it would not likely reverse that gradient, according to Mr. Stevens, who had primary responsibility for the Applicant's hydrogeologic investigation.
The Applicant noted other factors that also suggest there is no mounded water table at or above 350 feet: (1) the well on the Applicant's property (SW-1), cross-gradient to the hill, which suggests the bedrock aquifer is between 295 and 345 feet; and (2) an old limestone quarry at the hill's northern perimeter, whose floor elevation is 345 feet. The dry quarry floor suggests that the bedrock water table is somewhere below 345 feet, since if the water table was at or above that level, groundwater would well out of the quarry floor or down its 30-foot-high faces.
Should a permit be granted, the intervenors have requested that it mandate the Applicant's development of a contingency plan to provide water for domestic and farming purposes to adjacent landowners "whenever the quantity of water in the wells and springs of such landowners is insufficient unless and until the Applicant can demonstrate to the satisfaction of the Department that its mining operation is not a contributing cause to such problem." This language is similar to that offered by the Commissioner in another mining case, In the Matter of Empire Bricks, Inc. (Interim Decision of the Commissioner, August 1, 1990), to eliminate groundwater impacts as a potential hearing issue.
The Applicant has resisted providing such a contingency plan and one should not be imposed unilaterally by DEC unless impacts to neighboring groundwater users are established as reasonably foreseeable, as explained in the ALJ's ruling on hearing issues. Given the preceding discussion and the findings of fact as outlined in this report, off-site impacts are not reasonably foreseeable and therefore a plan, as proposed by the intervenors, should not be required as a permit condition. Should the Commissioner disagree and require a plan like the one in Empire Bricks, its protection should be limited to property owners who have shallow wells and springs within the area of possible impact delineated by Mr. Waller, and not to all landowners adjacent to the project site, as proposed by the intervenors.
Apart from a contingency plan, the intervenors want to require that the project site's water table be monitored for one year prior to any mining activity. Such a requirement, imposed as a permit condition, would unduly delay this project. The Applicant has already accepted a requirement that it monitor the seasonal high bedrock groundwater table prior to any bedrock mining below 350 feet. (See DEC draft mining permit, Special Mining Condition No. 5.) Also, there is no allowance for mining below the bedrock water table; it is a permit violation and should it occur, the Applicant can be made to stop mining immediately.
Overall, the Applicant has demonstrated that its project, as conditioned, will not have adverse groundwater impacts either on or off the site. This conclusion, like the Applicant's case, is not premised on the location or characteristics of any particular neighboring well or spring, either as identified in the Applicant's groundwater users' survey or in the corrections to that survey as offered by intervenors' witness Janet Stewart, a local resident. Rather, it is based on the nature of the project itself, the Applicant's study of on-site resources, and hydrogeologic principles, as applied by the Applicant's experts.
These experts' pre-filed testimony was clear and well-ordered, unlike Mr. Waller's, which was muddled and disjointed. Mr. Stevens's testimony was particularly convincing, basically unshaken despite vigorous and extensive cross-examination.
As revealed by his resume, Mr. Stevens has an extensive background in mining hydrology issues. He has performed numerous hydrogeologic reports on groundwater movement within unconsolidated and bedrock aquifer systems, and has studied how these systems might be affected by mining activities. In contrast, Mr. Waller has a limited mining background, and none in relation to the type of mining proposed at the Easton site. The relative experience of the parties' experts and the manner in which their opinions were delivered were significant to resolving points of professional disagreement.
Because it has no bearing on the conclusions of this report, the Applicant's well and spring users' survey is not referenced in the findings of fact. To the extent the Commissioner finds it to be relevant, he should adopt the corrections to that survey proposed by Ms. Stewart, to the extent they were not struck from her pre-filed testimony. This is because the corrections were based on her interviews with the well and spring owners and were not seriously contested by the Applicant's counsel.
TREE PLANTING PLAN
The second hearing issue concerns the efficacy of DEC Staff's tree planting plan to achieve its intended result, which is the screening of mined rock faces. This issue is unrelated to project design, as there is no apparent doubt that under the design now proposed, all important visual impacts have been adequately considered and mitigated. There is no question that some form of plantings will work as a screening mechanism, although at the issues conference there was some doubt that the plan, as then proposed, would perform its function successfully. Therefore, the issue was framed in terms of what plan is needed: the plan then proposed by DEC Staff, or a revised plan proposed by the intervenors.
The plan proposed by DEC Staff at the outset of this hearing is outlined above in the findings of fact. Basically, it requires the planting of trees in four staggered rows on each mined rock bench above an elevation of 370 feet. Two rows of fast growing hybrid poplar would be planted at the back of each bench; two rows of red and white pine would be planted in front of them.
Department regulation requires a permanent stand or a stand capable of regeneration and succession sufficient to assure that the trees have a 60 percent survival rate at the end of the second growing season after planting. If revegetation is not completely successful, the areas of failure must be randomly distributed, cannot exceed one-half acre in every two acres so treated, and cannot endanger the success of revegetation in adjacent areas within the affected land. These requirements from 6 NYCRR 422.3(d)(2)(vi)(d) are also embodied in the permit as drafted by DEC Staff (special reclamation condition No. 5).
At the hearing Staff presented one if its foresters, John Hastings, whose purpose was to explain the tree planting plan. Mr. Hastings said it was decided to plant the trees on a 6' x 6' basis to prevent crowding while still allowing their roots to mesh over time, thereby providing stability. Mr. Hastings said the spacing was close enough to provide adequate screening even if only 60 percent of the trees survived, although he predicted a survival rate greater than 90 percent, based on past experience with reforestation projects.
The testimony from Mr. Hastings and the three witnesses presented by the Applicant was convincing in showing that, at a bare minimum, 60 percent of the trees would survive through their second growing season, as is required by regulation. As shown by the findings of fact, the tree species are hardy and common in upstate New York. They will grow in good soil, as measured by depth, volume and quality. Climatic concerns will not be a major problem, nor will insects or disease. Natural pruning should not be a factor, and to the extent it is, its effects will be offset by natural understory revegetation.
Finally, each tree species will grow to and above a height of 50 feet, thereby screening the mined rock faces. This will happen first with the hybrid poplar, to be set at the back of the benches, and then with the red and white pine, to be set in front.
To better ensure the success of its plan, DEC Staff proposed additional permit terms as part of its closing brief, based on the hearing record. The following terms, as modified below, should be added to any permit that is issued.
- All planted trees shall be two-year-old bare root stock. As noted in the findings, bare root stock is less prone to planting shock and anchors itself better than containerized stock, which tends to be heaved out by frost. Also, two-year-old stock is preferable to five-year-old stock that has spent time in a transfer bed. The older stock tends to stagnate after planting, whereas the younger stock, while smaller when planted, often later outgrows the older stock. Two-year-old stock is also less expensive, more available, and easier to plant.
- Red pine shall be planted in the front row, farthest from the mine face, and red pine in the next row back. This reverses the order proposed by DEC Staff, but adopts the recommendation of Joseph McMullen, a botanist who testified for the Applicant. Under the intervenors' cross-examination, Mr. McMullen said that with the benches sloped slightly toward the mined rock faces, the driest part of each bench would be the front. As red pines are more drought resistant than white pines, they should be in front.
- The grass and legume mixture to be spread on each bench shall be planted according to the soil preparation and seeding recommendations of the Washington County office of the U.S. Department of Agriculture Soil Conservation Service. Pursuant to the draft permit, all mined areas, including benches, must be reclaimed with a grass and legume mixture. This amendment to existing permit language confirms the role of the Soil Conservation Service in reviewing the Applicant's soil tests and deciding, prior to reclamation, whether lime, fertilizer or other materials are needed to enhance the growth of vegetation. It is unclear whether stripped overburden, stored in berms during mining, will be enough to ensure a three-foot cover in the tree planting areas. If it is not, other soils, perhaps of lesser fertility, will be needed, which makes good soil preparation especially important.
- The hybrid poplar clone or species selected shall be subject to the approval of DEC. At its Wilton experimental site, DEC is testing various hybrid poplar clones for growth and susceptibility to insect and disease problems. It would be premature now to decide which clone should be used. That decision should be reserved to DEC Staff, based on the results of its experiments.
Apart from the terms specified above, two other conditions not proposed by any party, but warranted by the record, should be added. Those conditions are as follows:
- The base of each tree shall be mulched with wood chips or similar woody material after planting. Even though he was satisfied with the existing planting plan, the Applicant's own expert, Mr. McMullen, made this recommendation as a way to help retain surface moisture, protect young roots against temperature extremes, and limit competition from other vegetation. As noted in the findings, sunlight reflected from the mined rock faces will make the benches warmer than the surrounding terrain, especially in the first several years after planting, when there is little other vegetation. In these early years of growth, the trees' roots will be poorly developed. Mulching would help ensure they get adequate water. Mulching would also be practicable, as the mulch could be generated on-site, presumably at little cost to the Applicant. Overall, mulching's benefits seem to far outweigh any burden it would impose.
- To the extent practicable consistent with concurrent reclamation, tree planting shall occur in the early spring, as soon as the frost leaves the ground. The Applicant's botanist, Mr. McMullen, and the DEC forester, Mr. Coughlan, appeared to agree that this was the best time for planting bare root stock. The benefit of planting much later in the year, in terms of expediting reclamation, might be lost if this caused greater winter mortality.
Finally, the intervenors have proposed their own permit conditions as part of their closing brief. These additional conditions, as discussed below, are unwarranted based on the hearing record.
(1) In lieu of a 60 percent survival rate, to be gauged at the end of the second growing season, the intervenors would impose an 80 percent survival rate, to be measured on June 1 of each year, beginning with the second year after planting. The intervenors would allow no area of revegetation failure to exceed one-tenth of an acre in every acre, or be a continuous loss in excess of 50 feet in length.
The intervenors' forester, Richard Coughlan, contends that the end of the second growing season is not a realistic time period for evaluating tree survival because it omits consideration of "post-establishment" factors like plant competition, leaf desiccation, natural mortality, and potential insect or disease epidemics. These factors were listed but not explained by Mr. Coughlan in his pre-filed direct testimony, and were not confirmed by other witnesses. Therefore, they are discounted in favor of the testimony of Mr. McMullen, who said that if a tree survives two years, there's an 80 percent chance it will grow to its full mature height. Since there will be four rows of trees, all staggered on a 6' x 6' basis, it is unnecessary that every tree survive for the faces to be screened. The intervenors had no proof that the standards now set in the draft permit (which are taken from regulation) are inadequate given the purpose of reclamation.
(2) The intervenors propose that each revegetated bench must meet their standard for success (as noted above) before the next higher bench can be visually exposed, and that mining must stop immediately in the event of a violation, until the survival rate has been re-established.
The intervenors assign no cut-off point at which success is finally determined. Even if that point is two years, it would unduly restrict the pace of mining. The permit now sets a survival rate that is also imposed by regulation. If that rate is not met, DEC already has adequate remedies, including stopping the project if necessary.
(3) The intervenors propose that at least five feet of soil be placed on the rock benches prior to any tree planting, two feet more than required by the draft permit.
This apparently relates to the intervenors' concern, expressed starkly at the issues conference, that trees can't grow 50 feet high in three feet of soil. This contention was attributed to Nancy Wicker, a horticulturist. Ms. Wicker said that in three feet of soil, trees would be "potbound" and stunted. Ms. Wicker was offered at the issues conference as the intervenors' proposed expert, but after her issue was certified, she was not called to testify. Her apparent replacement, Mr. Coughlan, did not address soil depth in his testimony. The intervenors have challenged the soil volume analysis of Peter Loyola, the Applicant's landscape architect. But the findings in this report are not based on his formula, but on the combined expert opinions of the Applicant's and DEC's witnesses that the soils have adequate room for root development and the retention of all needed moisture. This finding is buttressed by extensive proof that the proposed tree species can and do grow now in much less soil than is proposed in the planting plan.
(4) The intervenors propose that the Applicant be required to employ a DEC-certified consultant forester or botanist who shall monitor tree survival on an annual basis, and who shall file reports to DEC and the Easton Town Board.
There was no showing that Staff lacks the resources to police this permit. DEC will enforce the permit, not the Easton Town Board.
(5) The intervenors propose that for tree planting not achieved in the first two weeks of May, the Applicant use containerized nursery stock, such stock to be at least five years old.
As noted in the findings, this stock would be subject to frost heaves and planting shock. Consistent use of two-year-old bare root stock is a better alternative.
(6) The intervenors propose that the Applicant prepare and DEC review and approve a plan for watering trees in the event of severe drought, and an understory vegetation analysis to consider retention of small areas of native vegetation.
There was no showing that droughts so severe as to require watering are foreseeable; therefore, it would be unduly burdensome to require a watering plan. The idea of an understory vegetation analysis was advanced in pre-filed testimony by Mr. Coughlan, the intervenors' witness. That testimony was struck as being outside the scope of the hearing issue as framed for adjudication.
HISTORIC AND ARCHEOLOGICAL RESOURCES
As noted earlier in this report, the ALJ issued a ruling, dated June 22, 1993, bearing on historic and archeological resources that the intervenors alleged to be on-site. This ruling, later affirmed by the Commissioner, found no issue to exist and no further action or site surveillance to be required.
The ALJ's ruling was premised in part upon findings by the Applicant's archaeologist, Stephen Oberon, that ceramic fragments uncovered during a site excavation postdated the Civil War. Since that ruling, these fragments have been reviewed by an OPRHP archaeologist, Paul Huey, who has reached a different conclusion. According to Mr. Huey, the fragments are 18th century, and probably date to the 1770's.
Mr. Huey's analysis of the fragments, at the behest of the Applicant, is new information that was not available to the parties prior to the ALJ's initial ruling. This information is significant to the extent it has prompted OPRHP (and, in turn, DEC Staff) to want further excavations conducted.
The Applicant, DEC Staff and OPRHP have now agreed upon new permit language requiring the Applicant to perform an archeological investigation in the area of the project site where the ceramic fragments were found. If as a result of this investigation OPRHP determines the area to be historically significant, then a data recovery design plan to mitigate project impacts must be submitted to ORPHP for its approval.
The new language is incorporated in Staff's draft mining permit as special condition No. 24. (See "Figure 2" of this report, which contains the full text.) The mining permit also contains a general condition (No. 13) which provides that "if any archeological or structural remains are encountered during excavation, the permittee must immediately cease, or cause to cease, all work in the area of the remains and notify the NYS DEC Regional Office. Work shall not resume until written permission to do so has been received from the Department."
To approve this project, DEC must certify that adverse environmental effects will be minimized or avoided to the maximum extent practicable [ECL Section 8-0109(8); 6 NYCRR 617.9(c)]. These include effects upon "resources of archeological, historic or aesthetic significance," according to 6 NYCRR 617.2(l), which defines the term "environment."
The intervenors now contend that even with the new permit language, DEC cannot make the findings required by SEQRA that environmental impacts have been adequately mitigated. Rather, they submit, the archeological investigation required under special mining condition No. 24 must be performed and its results assessed prior to any findings being made.
The intervenors' position is challenged both by the Applicant and DEC Staff. It is also hereby rejected by the ALJ, who finds that, on the existing record, impacts to cultural resources have already been adequately addressed.
Possible impacts in the area where ceramics have been found are sufficiently addressed by prohibiting project disturbance until the existence, extent, integrity and quantity of artifactual material is determined, and until any mitigative action that might be required by OPRHP is carried out. In other words, the draft permit anticipates findings that may yet occur, and addresses them by a process involving OPRHP, which has the authority and expertise to determine their historic significance.
In their most recent submission, the intervenors remain concerned that other, yet unidentified 18th century cultural sites may exist within the Peckham parcel. Their concern is reinforced by claimed findings of other ceramic fragments, also dating from the 1770's, at a site within 500 feet of the Peckham property. These findings, which are alleged to have occurred last summer, have not been litigated as part of this hearing. But even assuming they are accurate, they do not preclude permit issuance at this time.
Adequate protection is already afforded by general mining condition No. 13, which provides that if archeological or structural remains are found during mining excavation, all project work must cease in the affected area until DEC allows it to resume. This condition is intended to address remains that are not now apparent; should any be found, Staff can take mitigative action, in conjunction with OPRHP.
- The project, as controlled by the draft DEC permit, will not create adverse impacts for neighboring well and spring users. Therefore, a contingency plan is unnecessary.
TREE PLANTING PLAN
- With the amendments proposed by this report, the success of the tree planting plan is reasonably foreseeable. The plan, as amended, ensures that the project's adverse visual impacts will be mitigated to the maximum extent practicable, consistent with social, economic and other considerations.
HISTORIC AND ARCHEOLOGICAL RESOURCES
- With the recent incorporation of special mining condition No. 24, the draft permit adequately mitigates adverse impacts to potential on-site historic and archeological resources.
With the amendments proposed by this report, the permits for this project, as drafted by DEC Staff, should be issued to the Applicant.
FINAL ENVIRONMENTAL IMPACT STATEMENT
The Final Environmental Impact Statement ("FEIS") for this Project shall consist of the following:
- This hearing report;
- The permit application;
- The Draft Environmental Impact Statement ("DEIS");
- The Supplemental Draft Environmental Impact Statement ("SDEIS");
- The record of the legislative hearing, including all oral and written comments from the public;
- The record of the issues conference;
- The record of the adjudicatory hearing, including those exhibits received into evidence;
- The rulings of the ALJ and the Commissioner's interim decisions related to those rulings; and
- The correspondence between the ALJ and the parties to this proceeding.
The FEIS shall also include the Applicant's response to public comments on the DEIS and SDEIS as well as the intervenors' comments on this response. These submittals were provided at the direction of the ALJ and in accordance with 6 NYCRR 624.7(a)(3), which states that "if the Applicant has prepared the DEIS, it shall prepare a written response to comments received and shall file it as an exhibit to the hearing record. Other parties shall be afforded opportunity to contest the contents prior to the close of the hearing record."
The Applicant's response to public comments, dated October 1, 1993, was accepted by DEC Staff and then received at the Office of Hearings on October 13, 1993. The intervenors' reply to this "responsiveness summary" was received on October 29, 1993.
Having reviewed the parties' submissions, the ALJ concludes that the "responsiveness summary" adequately and comprehensively addresses the oral and written comments made on the DEIS and SDEIS. This is with the exception of those comments that relate to issues which were actually adjudicated. Those comments are addressed in the hearing record and by this hearing report.
Two attachments (Figures 1 and 2) not electronically available.