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Peckham Materials Corporation - Ruling, February 12, 1993

Ruling, February 12, 1993

STATE OF NEW YORK :DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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,
on a 92-acre site in the Town of Easton, Washington County.

(DEC Project No. 5-5326-00021/00001-1)

RULINGS OF THE ADMINISTRATIVE LAW JUDGE ON
PARTY STATUS AND ISSUES

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 this site for the excavation, quarrying, and on-site processing of sand, gravel, and consolidated materials. The project has an expected duration of 100 years, during which time 72 acres would be disturbed. Processing equipment is proposed to include a primary crusher, a secondary crusher, tertiary crushers, screens and conveyors.

The project, as first proposed, received a Positive Declaration by the Department of Environmental Conservation (the "Department" or "DEC") as lead agency. A Draft Environmental Impact Statement ("DEIS") was prepared by the Applicant and accepted by the Department Staff as complete on August 10, 1990. A legislative hearing was held on December 3, 1990, at which time various speakers, mostly Easton residents, made statements against the project. Many were critical of what they perceived to be deficiencies and inaccuracies in the DEIS.

On December 4, 1990, I convened an issues conference, its purposes to identify what issues, if any, required 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. This conference was adjourned upon the agreement of all parties to speak informally, and without my involvement, in an attempt to resolve points of difference. It resumed again on January 15, 1991, at which time the Department Staff, joined by the prospective intervenors, moved orally that a Supplemental Environmental Impact Statement ("SEIS") 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, I ruled that the Applicant prepare an SEIS, to be submitted to and approved by DEC Staff and then made available for public comment. Upon appeal of the Applicant, the Commissioner affirmed this ruling on January 27, 1992, except that on the point of project alternatives, he struck my directive that the Applicant evaluate a "downsized" project that would eliminate visual impacts upon the Saratoga National Historic Park, which is in Stillwater, Saratoga County, six miles southwest of the project site.

As modified by the Commissioner, my ruling was that the SEIS consider project impacts upon groundwater (including off-site wells), nearby historic properties, on-site archeological resources, and various bird species which were claimed to use or inhabit the site or its vicinity. The ruling basically ratified certain requests for information prepared by DEC Staff or, on the issue of historic and archeological resources, by the Office of Parks, Recreation and Historic Preservation (OPRHP).

On August 5, 1992, DEC Staff accepted an SEIS from the Applicant as adequate for public review. Comments were then received up until October 16, 1992, and the issues conference was rescheduled for November 17, 1992.

ISSUES CONFERENCE

As scheduled, the issues conference reconvened on November 17, 1992, at the Easton Town Hall on Route 40, Easton, New York. Given the number of issues proposed and claims raised with regard to the SEIS, the conference continued on November 19, 1992, at the Easton Methodist Church, also in the Town of Easton.

The Applicant was represented by Devorsetz, Stinziano, Gilberti and Smith, P.C. (Rosemary Stack, Esq., of Counsel), Bridgewater Place, 500 Plum Street, Suite 600, Syracuse, New York, 13204-1428.

The Department Staff was represented by Steven L. Brewer, Assistant Region 5 Attorney, Ray Brook, New York, 12977.

The Battenkill Association of Concerned Citizens ("BACC") and George Houser were represented by Ianniello, Anderson, Reilly, Luhn and Nichols (Rosemary Nichols, Esq., of Counsel), 805 Route 146, Northway Nine Plaza, P.O. Box 1169, Clifton Park, New York, 12065.

Save Easton Environment ("SEE") was represented by King, Murphy, Adang and Arpey (Anthony P. Adang and Stephen Rodriguez, Esqs., of Counsel), Norstar Bank Building, 27 Division Street, Saratoga Springs, New York, 12866.

Prior to the issues conference the Department Staff prepared and circulated three draft permits. One was a Mined Land Reclamation Permit, to govern mining and the site's eventual reclamation. The others were air permits, one for each of two emission points, to regulate particulates associated with the processing facility.

The Applicant had applied for the mining permit pursuant to Article 23, Title 27, of the ECL and 6 NYCRR Parts 420-423. It sought the air permits pursuant to ECL Article 19 and 6 NYCRR Part 200 et seq.

Just prior to and during the course of the conference several changes were made to the permit drafts, at which point all parties were allowed a response. Final drafts were sent to me on December 16, 1992, under a cover letter from DEC counsel Stephen Brewer.

DEC Staff is prepared to issue the draft permits, finding the project, as conditioned, meets all relevant legal requirements, including those of SEQRA, DEC permit regulation, and the state's Parks, Recreation and Historic Preservation Law ("PRHPL"). The Applicant has no objection to the final draft permits and would accept them as written. No issues were proposed by the Applicant or DEC Staff; the only issues proposed were by the prospective intervenors.

By a letter dated November 12, 1992, Rosemary Nichols, counsel for BACC and Mr. Houser, wrote that as a legal matter, the issues conference could not proceed without my first ruling as to (1) whether the SEIS, as drafted by the Applicant, had been prepared as ordered, and (2) if it had not, whether the information not provided was no longer necessary or appropriate. Ms. Nichols said the SEIS was both incomplete and, in certain respects, inaccurate, and should be ordered corrected before issues were determined on the existing record.

When the issues conference resumed, this argument was broached with the other participants. The Applicant said it had fully complied with my ruling, as modified by the Commissioner. DEC Staff said there was substantial compliance, enough, at any rate, for Staff to draft permits, and to conclude that the project, as conditioned, could go forward.

My ruling was that the issues conference proceed, and that perceived flaws in the SEIS, as identified by prospective intervenors, be considered in the context of whether issues had been raised for adjudication. In this regard, my prior ruling had required not only that an SEIS be prepared, and that certain issues be considered, but that these issues be addressed by the Applicant performing certain tasks, and answering particular questions, in response to memorandums which had been written by DEC Staff and the OPRHP. I said that in considering proposed issues, I would look at the extent to which the Applicant was responsive, but not as an end in itself, but only insofar as omissions of information, or disputes as to information provided, raised doubts about the project's compliance with legal standards, thereby requiring further inquiry. In other words, the intervenors were to explain how inadequacies in the EIS made a difference to any permit determinations required from the Department.

In ordering the issues conference forward, I cited my prior written ruling which had required preparation of the SEIS. In it I had said (on page 3) that there were basically two ways to address perceived deficiencies in the DEIS or in the information generally that had been provided with regard to a pending project proposal. One, I had said, was to convert those deficiencies into hearing issues, and the other was to direct that additional information be secured before the parties were heard as to what issues might be substantive and significant. At that time I had said it would be inefficient to make hearing issues out of deficiencies that might fairly and simply be cured by directing that the Applicant provide additional information. I had said it would be better to secure that needed information first so that one might limit or even eliminate those issues that would otherwise require adjudication, especially where, on the record that then existed, DEC Staff could not determine whether the project met all regulatory requirements.

Since that ruling an SEIS has been prepared. It addresses all issues it was intended to, although there is some dispute as to the depth of those issues' treatment, and whether the information provided is accurate. At any rate, the record is now more detailed, and based on that record, DEC Staff has determined that permits can be issued. Given these changed circumstances, one can now hear and decide what matters may require adjudication.

As to the standards for raising an issue, the Commissioner's Interim Decision In the Matter of Oneida County's Energy Recovery Facility is particularly instructive, and was quoted to the conference participants. In that decision, dated July 27, 1982, the Commissioner wrote that:

"The pre-hearing conference is the point at which the subject matter of the hearing is defined. In situations where the Department staff have reviewed an application and offer no objection to various parts of it, the burden of persuasion that substantive and significant issues exist is on the intervening parties. In order to meet this burden, the intervenor must demonstrate to the satisfaction of the administrative law judge that the applicant's presentation of facts in support of its applications does not meet the requirements of the statute or regulations. The offer of proof may take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. . . Once an intervenor asserts that an issue exists, it is incumbent on the applicant to rebut the assertions by reference to its application in order to assist the ALJ in ruling on the matter. The ALJ rulings shall take into account the arguments, offers of proof, the application documents [which, in this case, would include the EIS] and the Department's expertise in these matters."

PROPOSED ISSUES FOR ADJUDICATION

In their filings for party status, as supplemented by the conference record, the prospective intervenors offer many proposed issues for adjudication. These are treated under separate issue headings, for the sake of clarity, and noting those issues where supplemental information was required, and where the intervenors claim that information is either missing or inaccurate. For the sake of this ruling, any claim associated with BACC should also be construed as being raised by Mr. Houser, as they share the same counsel, and as Mr. Houser is an officer of BACC, although he has also filed individually.

VISUAL IMPACTS UPON HISTORIC PROPERTIES

BACC asserts an issue with regard to the project's 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.

The visual impact issue is proposed both under SEQRA and the State Historic Preservation Act of 1980 ("SHPA"). SEQRA requires DEC to find that "consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the EIS process will be avoided or mitigated" [ECL 8-0109(8)]. The avoidance and mitigation of adverse effects extends to the choice of project alternatives, according to ECL 8-0109(1).

As acknowledged in the EIS, this project will have adverse visual impacts from the battlefield, the battle monument, and the Route 40 rural historic district. These are all now listed or eligible for listing in the state or national registers of historic places. Based upon documentation reviewed and a field visit by its staff, OPRHP determined in April, 1992, that the project, as then proposed, would constitute an adverse visual impact upon both the Saratoga Battle Monument and the Route 40 historic district. DEC was then obliged to contact OPRHP for the purpose of exploring alternatives which would avoid or mitigate adverse impacts to these properties [PRHPL Section 14.09(2)]. This was done, and the Applicant, at the request of DEC Staff, prepared, as part of its SEIS, a discussion of alternative project designs. To differing degrees, each of them mitigates visual impacts that are foreseeable from mining on and adjacent to Schuyler Mountain, which is the highest point of the site and the part of it most visible from the surrounding area.

One of the alternative project designs (Alternative No. 1) has been adopted under terms of the DEC draft permit (mining condition No. 22). It provides for directional mining, conifer plantings, and concurrent reclamation. It is designed to mitigate impacts upon resources north of the site, including the battle monument and rural historic district.

Other draft permit conditions prohibit mining of the highest 50-foot bench which the Applicant had first proposed for Schuyler Mountain, as well as all mining or disturbance on the mountain above 870 feet elevation (mining condition No. 17). The number of acres subject to devegetation and/or disturbance on Schuyler Mountain above 370 feet elevation (above which the project may be seen from the battle monument) are not to exceed the area to be affected by mining during any given calendar year (mining condition No. 18). A 300 foot buffer strip is to be left vegetated and unmined at the northernmost part of the site on Schuyler Mountain (mining condition No. 19). Finally, reclamation must be performed in a way to mitigate visual impacts:

  • Reclamation must be performed concurrently on all portions of the mine faces, benches, and floor of the mine that have reached completion;
  • All mined areas, including benches, must be reclaimed with a grass and legume mixture; and
  • Red and white pines, with poplars, must be planted on each mined bench above 370 feet, such planting to occur in at least 36 inches of topsoil (reclamation conditions No. 4, 5 and 6).

By virtue of the draft permit, Staff, with the Applicant's consent, has downsized the project from 79 disturbed acres (as first proposed when this hearing began) to 72 acres. This has been done by curbing operations on Schuyler Mountain (permit conditions No. 17 and 19). DEC Staff and the Applicant now maintain that, under terms of the draft permit, they have adequately mitigated visual impacts to properties of historic significance. They claim to have met the requirements of SEQRA (quoted above) and SHPA, which, in a manner similar to SEQRA, requires that to the fullest extent practicable, it is the responsibility of every state agency, consistent with other provisions of law, to avoid or mitigate adverse impacts to registered property or property that OPRHP determines to be eligible for listing in the state register of historic places [PRHPL Section 14.09(2)].

DEC Staff is now satisfied with the level of mitigation afforded by its draft permits, as are the OPRHP and the National Park Service, which is custodian of the Saratoga battlefield and monument. Because the battlefield is farther from the site than the battle monument and the rural historic district, the park service maintains that impacts from the battlefield would be insignificant, and agrees that existing mitigation, such as planting of finished benches, would adequately address any impacts that exist. The park service is satisfied that under terms of the draft permit, views from the base of the battle monument are now adequately addressed.

BACC asserts that, even as mitigated, the project still does not comply with SEQRA or SHPA. When it filed for party status two years ago, BACC said the visual analysis that is part of the DEIS was inadequate. BACC said it would offer its own computer-generated simulation to graphically illustrate the project's "profound" visual impacts to the Saratoga National Historic Park and to the Route 40 traffic corridor. It identified as proposed witnesses two consulting firms. One of them, Saratoga Associates, has since been hired by the Applicant and generated the visual assessment report which is now part of the SEIS, and which contains the Applicant's own computer-generated graphics. The other named firm was Environmental Design Partnership of Clifton Park. At the time of the issues conference, this firm had done no work, nor was it under contract to perform an impact analysis.

BACC gave various reasons why it had no viewshed simulation, among them that the Applicant had "stolen" one of its consultants, that it was waiting for leaves to come down (for "worst-case" viewshed scenarios), and that, to demonstrate adverse impacts, it was relying on the past position of OPRHP (which, with project modifications, has since been reversed).

BACC says that among project alternatives, the Applicant has not seriously addressed the no-action alternative (outlined in the DEIS) and the second two alternatives (Alternatives No. 2 and 3) which were generated, at Staff's request, as part of the SEIS. Alternatives 2 and 3 reduce the acreage of mining operations, further curbing visual impacts but reducing by 68 and 72 percent respectively the reserves of the mine site, when compared to the project as first proposed. Because of the loss in reserves, the Applicant considers these alternatives not feasible, although BACC would have them adjudicated.

In his prior decision in this matter, the Commissioner said "it would only be necessary to develop a record on additional alternatives if the project as proposed will have unmitigable significant adverse impacts" (In the Matter of Peckham Materials, Interim Decision, January 27, 1992). That is not the case here; by the current proposal, all impacts have been mitigated to the extent they are no longer significant. Certainly not to have a mine, or to have a mine even smaller than the one now anticipated, would mitigate or avoid visual impacts altogether. But it is not the function of SEQRA or SHPA to render the mine invisible, or to unduly curb its size. These statutes require only that impacts be mitigated or avoided to the maximum extent practicable and, in the case of SEQRA, consistent with social, economic and other considerations. BACC has made no offer that its own chosen alternatives would better minimize adverse impacts than the design chosen by the Applicant, while at the same time giving due consideration to the Applicant's objectives and capabilities. For that reason, no issue has been raised as to project alternatives.

BACC also raises no issue with regard to other concerns, as numbered below, which bear on visual impacts.

  1. BACC expresses concern not only as to the view from the base of the battle monument, but as to the view from the monument top, from which it argues one will be able to look "straight down" to the mining site. Standing 200 feet tall, the battle monument was erected at the site where General Burgoyne, in 1777, made his decision to surrender to American forces during the Revolutionary War battle of Saratoga. The park service wants to preserve the view from the base of the monument, looking toward Schuyler Mountain, since that mountain, with the surrounding terrain, was considered by Burgoyne in his decision that escape was not possible.

    Due to steady deterioration, the battle monument is now closed, although there is funding to restore it, and it should at some point reopen. The park service does not find the view from the monument top to be significant, since it was from the monument base, and not from its top, that Burgoyne made his assessment. BACC would like to show that the site will be seen from the top of the battle monument, but there already is no question, on the information supplied by the Applicant, that an impact will exist. On the other hand, I agree with the park service stance, as explained by DEC Staff, that this view does not have historic importance. Beyond that, given the distance to the site (almost four miles) and the reclamation intended by the draft permit, I do not find the impact from the monument top to be significant, or one that has not already been considered and, by virtue of permit conditions, already mitigated to the maximum extent practicable.

  2. BACC wants to create an issue regarding the historic value of the battlefield, the monument, and the rural historic district, relying on local historians, residents of the historic district, and officials of OPRHP and the National Park Service, who apparently would be subpoenaed to testify about the importance of these resources. While interesting, such evidence has no relevance by itself, and for that matter, there was not even a dispute regarding the value these resources have. Admittedly, they have value, but the issue is how the project would affect them. This is something the Applicant has considered, but as to which BACC had no offer of its own. BACC's assertions that it would retain an expert, and that it would perform a study, were inadequate due to the need at the issues conference stage to already have secured those experts who would speak on one's behalf, and to be able to describe what work they had done, and how they would support assertions which are contrary to those in the application materials.
  3. On a related point, BACC seeks to introduce evidence that the battlefield, the monument, and Schuyler Mountain itself are part of a proposed federal land use corridor connecting significant Revolutionary War resources. Such a corridor reportedly has been proposed by Senator Jeffords of Vermont, but does not exist now, and for that reason alone, it would be pointless to consider.
  4. As part of the SEIS, the Applicant was ordered to complete five building structure inventory forms, with photographs, for five nearby houses (four of them along Route 40). These forms are part of the SEIS, as is a survey of visual impact to potentially significant structures, which includes photographs of the structures surveyed and views to the project site. BACC contends that the information provided is partially inaccurate, that the photographs omit certain views, and that in one case, the Applicant took a picture not of the building to be studied, but of another some several miles away. The Applicant did not respond directly to each perceived flaw, but said that its study was accepted by OPRHP, which had requested it, and that it served as an adequate basis to establish the rural historic district as one meeting eligibility standards for the state register of historic places. I agree that for these reasons, no issue is raised, nor is there a need that the study be redone. The criticisms of the study, as catalogued in public comments, will instead be addressed in a responsiveness summary, which will be part of the FEIS.

EFFICACY OF TREE PLANTING PLAN TO MITIGATE VISUAL IMPACTS

To help mitigate visual impacts, the project now includes a tree planting plan, which is embodied by reclamation conditions No. 4 and 5. Pursuant to these conditions, poplars and pines would be planted in staggered rows on each mined bench above an elevation of 370 feet. The idea is for these trees to grow to such a height (about 50 feet) that they will shield mine faces which would be left on the west side of Schuyler Mountain.

The Applicant is satisfied that the planting plan would work and that the trees would grow to an adequate height. So is DEC Staff, although BACC says the plan would not work, especially because the trees would be exposed to harsh climatic conditions (among them, temperature extremes, winds, and penetrating winter frosts). BACC's claims were made in an on-the-record offer by Nancy Wicker, a horticulturist, and proposed testimony of a graduate forester, Norbert Quinzer, of Bagdon Environmental Associates in Delmar.

Parenthetically, the planting plan requires, as an acceptable vegetative cover, a 60 percent survival rate for trees which are utilized, to be assessed at the end of their second growing season. This requirement, from the draft permit (reclamation condition No. 5), is also based in regulation [6 NYCRR 422.3(d)(2)(vi)(d)]. DEC Staff assert that with a 60 percent survival rate, adequate screening will be provided, especially as the trees bush out from their foundations. Since the species proposed are hardy and, in its opinion, suitable for the site, Staff is convinced that the survival rate is achievable. BACC is not so convinced, and based on the offer it has made, an issue has been joined.

This issue involves the efficacy of the current planting plan, as embodied in the draft mining permit, to achieve its intended result, which is the screening of the mined rock faces. This issue is unrelated to project design, as there is no apparent doubt that under the existing design, all important visual impacts have adequately been considered and mitigated. There appears also to be no question that some form of plantings will work as a screening mechanism, although there is some doubt that the planting plan, as now proposed, will perform its purpose successfully. Therefore, the only issue is what type of plan is needed: the current plan, which satisfies DEC Staff, or some other plan that BACC would propose to better ensure a successful result.

A planting plan whose success can reasonably be foreseen is especially important here, prior to any permit issuance, since the plan would be so key to the visual mitigation strategy. If there was any question now that the plan would not be realized, it would matter little, from an impact standpoint, that the Applicant might later be found in breach of its permit, or that Staff could move against the reclamation bond, or attempt the work itself.

IMPACTS UPON ARCHEOLOGICAL RESOURCES

On November 30, 1990, OPRHP wrote to DEC Staff, stating that based on "reported resources" it had determined that the proposed project area "may contain an archeological site." ORPHP requested that an archeological survey be performed. DEC Staff agreed, although the Applicant objected. I ruled that the survey be done as part of the supplemental EIS. On appeal, the Commissioner agreed, finding that the existing EIS lacked the necessary information to evaluate the potential project effect upon on-site archeological resources, and that it was the Applicant's obligation to provide this information.

The Applicant has now furnished, as part of its SEIS, a "Stage I Cultural Resources Survey" prepared for it by Stephen Oberon, a state-qualified archaeologist. This survey was performed in November and December, 1990, even before my ruling was issued. The survey report, dated January 1991, states that "no evidence of Native or European-American cultural resources was encountered for subareas of the Peckham property considered most likely to have seen occupation by earlier inhabitants of the area." For that reason, the study concludes that mining and processing activities would have no impact on extant cultural remains, and that no further archeological investigation is recommended. OPRHP concurs with this recommendation, as does DEC Staff.

BACC now contends that this study was performed using a flawed methodology, that it was too cursory, and that it failed to identify resources believed to be on the site and known to members of the surrounding community. These resources are alleged to include a Native American "fire mound" (or "perpetual fire") as well as cellar holes (or building foundations) dating back to the Revolutionary War era.

From the conference record, I cannot conclude whether these resources exist and, if they do, whether they are located on land that would be disturbed by the mining operation. It is premature to identify a hearing issue, although certainly, based on the offers made at the conference, another look is warranted. Therefore, counsel for the Applicant shall arrange with my office, as soon as possible, for a site inspection, which I will conduct with the parties' representatives. BACC shall come to this inspection with Louis Marchaland (as to the cellar holes) and Clifford or Janet Stewart (as to the fire mound) or any other person who can lead us to these features. Aerial photography, newspaper clippings, and other documents referred to at the conference, or otherwise explaining these features, shall also be presented. The purpose of the visit shall be strictly limited: to locate the fire mound and cellar holes, and to determine, as best as possible, whether they are on property, owned by the Applicant, which would be subject to ground disturbance.

My ordering this visit should not be construed as creating a hearing issue, but rather as assisting me to determine whether an issue exists. If an issue exists, it shall be only with regard to the fire mound and the cellar holes, their significance, how they would be affected by the project, and what, if anything, would be required to mitigate or avoid project impacts, either under SEQRA (to the extent they are objects of historic significance) or SHPA (to the extent OPRHP might find them deserving of protection).

Otherwise, no issue exists with regard to the Oberon survey as written and made part of the SEIS. It is fully compliant with my ruling that a survey be performed, and was accepted by OPRHP, which had requested it. OPRHP concluded that the survey methodology was acceptable, and that the fieldwork was consistent with that methodology, combining surface reconnaissance in areas that were determined to have a low probability for human occupation with subsurface testing in all other areas.

BACC doubts the study's conclusions, but with the exception of the fire mound and cellar holes, makes no offer as to known on-site resources. Its assertions as to possible on-site resources, based on findings made outside the site, are too speculative to pursue. They do not raise issues or require that a second, more intensive study be performed.

IMPACTS OF MINING AND BLASTING ON GROUNDWATER RESOURCES

SEE and BACC both propose as an issue project impacts upon groundwater resources. They are especially concerned that the project, as proposed, will affect wells and springs that are used by site neighbors as their only water supplies.

Because, on the issue of hydrogeology, the DEIS lacked certain site-specific data, the Applicant was ordered to provide additional information to support its conclusion that the project would not affect groundwater resources. That information, as specified in my ruling, has all now been provided with the exception of specifications for an on-site well (which had been proposed to feed settling ponds) and a contingency plan to be followed in the event that the project depleted local groundwater supplies. (This plan was to include provisions for drilling new wells or supplying water to proximal groundwater users if their supplies were interrupted.)

In a project modification, the on-site well has been deleted since my ruling was made. In addition, DEC Staff has withdrawn its request that a contingency plan be provided. The request was withdrawn based on the well's deletion and DEC Staff's finding that the project would not adversely affect the bedrock aquifer (and therefore the water supplies that come from that aquifer).

As part of my ruling, the Applicant was required to identify all private groundwater users within a mile radius of the site, whether each of their wells is in the unconsolidated unit or in bedrock, the depth of each well (including the depth to the water table), and each well's estimated or real yield. The Applicant has performed a user survey, as required by my ruling, although public comments on the SEIS, coupled with statements at the issues conference, indicate this survey is not likely fully complete or accurate.

The information required of the Applicant was provided in a hydrogeologic investigation report, dated June, 1992, by Dunn Corporation in Albany, a group of engineers, geologists and environmental scientists. Among its conclusions, the report states that the site's sand and gravel aquifer can produce all needed water for the mining operation, thereby obviating the need for an on-site bedrock well. It finds no need for a contingency plan as no adverse impact is projected to water users from either the mining or processing operations.

SEE now says it has retained and proposes to call as its witness Roger Waller, a PhD hydrogeologist (retired from the federal government) who reviewed the EIS. In a letter he wrote, dated October 16, 1992, and submitted with comments on the SEIS, Waller questioned the Dunn report's conclusion that changed site surface runoff patterns, caused by material excavation, would have only a minimal impact to the groundwater system. Among other things, he said that mining would curb recharge to the sand/gravel aquifer and lower what he perceived to be a mounded water table in the hill on the western part of the site. Using information from the SEIS, Mr. Waller challenged its conclusions about water table levels and water flow beneath the ground surface.

In a further offer, SEE said Mr. Waller would testify that blasting which is proposed would likely close fissures in the bedrock, thereby restricting the amount of water for adjacent bedrock wells. This conclusion ran contrary to a federal survey, cited by the Applicant (and attached to its SEIS), which concluded that well performance and water quality are unaffected by blasting-generated ground vibrations. This survey was based on experiences in Appalachia and its relevance to this project is not yet established.

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.

This issue is raised under SEQRA and is not otherwise resolved by mining conditions No. 5 and 21. These conditions afford some monitoring of water table levels, both to ensure there is no mining within the bedrock water table (as pledged by the Applicant), and to anticipate problems off-site before they occur. But they are not fully responsive to the issues asserted by the intervenors and do not provide protection from impacts which, on the record to date, cannot be ruled out.

Significantly, there is no contingency plan which might otherwise eliminate hydrogeology as a hearing issue, as occurred in the application of Empire Bricks, Inc., for a clay mining operation in Saugerties, New York. In that matter too the ALJ concluded that reasonable doubts existed concerning whether or not the proposed mining operation would adversely impact the quantity of water in neighboring wells. The Commissioner said such an impact was not reasonably expected to occur, but that "if the Applicant is prepared to accept a condition which will require it to provide potable water to adjacent landowners whenever the quantity of water in the wells 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, there is no issue for adjudication" (In the Matter of Empire Bricks, Inc., Interim Decision of the Commissioner, August 1, 1990).

In the absence of a contingency plan, and given the offer made by SEE, an issue is raised for adjudication. As for the Dunn report itself, it complies with my prior ruling that information, as requested by Mr. Potter, be provided as part of the SEIS. I say this noting that while there is no description of the proposed on-site well, such proposal has now been withdrawn, as confirmed by mining condition No. 20. That condition provides (1) that water for industrial purposes shall be used only from unconsolidated aquifer deposits, and (2) that a permit modification will be required prior to installation or use of process water from a deep consolidated bedrock well, as had first been proposed.

The Applicant's failure to provide a contingency plan is consistent with its and DEC Staff's position that one is not necessary. As such a plan is not offered by the Applicant, one cannot be compelled unless there is a basis for it established as part of an adjudicatory hearing. Should impacts to neighboring groundwater users be established as reasonably foreseeable, provision of such a plan may later become required if a permit is to be issued. At this point, the need for a plan cannot be determined, although if one is offered, it might obviate the need to adjudicate this issue.

As to the well survey, it appears to be incomplete, based on letters which have been written by adjacent landowners. DEC Staff proposed that the survey be corrected in the response to public comments, and as part of the FEIS. This approach makes sense only if no issue is raised; if my ruling is upheld, the survey should be completed now, prior to taking evidence. Completing this survey is the Applicant's responsibility, but requires the intervenors' cooperation. Therefore, within ten days of this ruling, SEE shall provide a comprehensive list of all well or spring users, with their addresses, as to whom the information in the existing survey is deemed incomplete and inaccurate, providing accurate data (to the extent known) and allowing the Applicant an opportunity to verify, via on-site inspection, all information provided, and to complete its own survey, which shall become a hearing exhibit.

IMPACTS OF BLASTING UPON GREAT BLUE HERON ROOKERIES

BACC proposes as a hearing issue the impacts of blasting upon two off-site great blue heron rookeries. One of these rookeries is alleged to be about 850 feet southeast of the site, the other about 4000 feet south of the site. As part of its SEIS, the Applicant was ordered to evaluate potential impacts to the rookery farthest from the site (the closer one had not yet been identified) as well as appropriate mitigation measures that would protect the herons. The Applicant evaluated potential impacts and, concluding none would be realized, provided no mitigation measures. BACC contends the Applicant based its conclusions on incorrect rookery locations, and that blasting will affect the herons' reproductive success to the extent that adults are startled from and then abandon their nests.

The directive that the Applicant evaluate the farthest heron rookery was based on information, available at the time the ruling was made, that only one rookery existed. After the ruling was issued, it came to Staff's attention there was a second (or expanded) rookery also near the project site. Staff passed this on to the Applicant's consultant but now acknowledges that it was "misinformed" regarding the rookery location and therefore provided incorrect information. Based on comments received on the SEIS, it became apparent that the second rookery is about 850 feet to the southeast of the site and not 4600 feet to the south of the site, as Staff first understood.

The first rookery has 22 nests and the second rookery has 12 nests, according to BACC. BACC submits that with the blasting proposed by the Applicant, these rookeries will be affected. It intends to present a witness, John Peterson, who it identified as a contributing author to the New York State bird atlas. According to BACC, Mr. Peterson has published on the subject of blue herons and would testify to the "dramatic" impact one could foresee from their exposure to unexpected noise.

The Applicant acknowledges that blasting, under certain conditions, may affect blue heron colonies. But its wildlife consultant, Roy Slack, writes in the SEIS that the most important factor in assessing potential impacts is the distance of the colony from the noise source. Given the incorrect data it was given, Mr. Slack has not been to the closest rookery site. But if it is 850 feet away from the Peckham line, as alleged by BACC, this would still be outside the 775-foot boundary that the U.S. Fish and Wildlife Service has recommended as a "disturbance free zone" in relation to heron rookeries.

As part of its SEIS, the Applicant was required to answer questions from a blasting checklist prepared by DEC Staff. Among its answers, the Applicant said that each air blast would have a peak sound level of 130 dB. In the SEIS, Mr. Slack incorporated blasting information to assess the sound and vibrational impacts that would occur at locations where he understood the rookeries to be. This analysis was revised based on BACC's assertions as to rookery locations and is set out in a submission by Mr. Slack, dated November 1, 1992, and provided by Applicant's counsel.

Mr. Slack writes that in the closest rookery location, blasting would generate a noise level at or about 33 dBA without considering attenuation due to topography or vegetative cover: in other words, a level so low that it would not affect the heron rookery. Vibrations, he writes, would also not be sufficient to damage nests or eggs.

According to Mr. Slack, blasting noise might startle adult herons but the reaction would be brief, and the birds would soon acclimate to the sound, eventually showing little reaction at all. He adds that in a worst case scenario, the birds would move their nests. Heron colonies often naturally relocate, and therefore this would not be a significant adverse impact, according to Mr. Slack.

DEC's draft permit provides no mitigation measures for the heron rookeries. Staff accepts the Applicant's conclusion that no significant adverse impact will occur. I too accept this conclusion given Mr. Slack's analysis, which is correlated to the Applicant's own blasting data. BACC's offer is inadequate because it fails to draw a link between blasting, as projected, and impacts one would expect at particular distances. BACC's offer that heronries are often abandoned by noise disturbance was not actually contested by the other conference participants, and the Applicant showed that blasting, to the degree here proposed, would not likely affect the herons' breeding, even assuming BACC's rookery locations. BACC had no offer to the contrary, and therefore no issue is raised.

BLASTING IMPACTS UPON QUAKER MEETING HOUSE

BACC proposes as a hearing issue the impacts of blasting upon a Quaker meeting house, built in 1838, which is about 3000 feet from the site, on Route 40 in the Town of Easton. Apart from the town historian, BACC would call as witnesses R. Russell Reeves, a structural engineer, who would speak about the impact ground vibrations would have upon the building's dry-laid foundation; and Kirby VanVliet, a geologist, who would say that ground faults beneath the house would not protect it from blasting impacts.

OPRHP initially had concerns about the Quaker Meeting House, but in January, 1991, reversed its position, and concluded that the project would cause no foreseeable or significant blasting impacts. The Applicant agrees, stating that given the distance to the site, vibrations at the house would be at one-tenth of the level established for concern by the U.S. Bureau of Mines.

BACC now wants to revive the meeting house as an area of concern, noting that OPRHP's reversal of position is unexplained, and arguing that its decision was unfounded. BACC claims DEC has not fulfilled its duties under SHPA, although there is no question that as between DEC and OPRHP, a full consultation has occurred.

As with the topic of heron rookeries, BACC has not here performed its own blasting analysis. There is nothing to suggest that vibrations, at the distance of the house, would be sufficient to cause structural damage. BACC's offer that the house is vulnerable to vibrations does not, in itself, mean that vibrations actually generated by this project will pose a threat to its integrity. For this reason, BACC's offer is incomplete, and no hearing issue is raised. Why OPRHP changed its position, and whether its decision was well-founded, shall also not be considered, as these in any case would be irrelevant considerations, given that agency's disengagement on this issue.

IMPACTS TO THREATENED BIRD SPECIES AND SPECIES OF SPECIAL CONCERN

In its DEIS, the Applicant had quoted DEC Staff as stating that the project site had no identified endangered or threatened wildlife species, and no species of special concern. Based on public comments, this conclusion was called into question, and a study was ordered to assess project impacts, especially from blasting, upon one threatened species (the northern harrier) and four species of special concern (Cooper's hawk, common nighthawk, common raven, and eastern bluebird).

In his decision upholding my ruling, the Commissioner said the existing record was inadequate "to reliably reach conclusions about the project's effect on wildlife resources and therefore the Applicant must provide further information." That has now been done in the form of a wildlife and habitat site evaluation. This evaluation was performed by Roy Slack and is part of the SEIS. Based on actual site reconnaissance, Mr. Slack found none of the species listed in the prior paragraph, and determined also that the site would not suit them as nesting habitat. He said the site had no special concentration of prey, and therefore no special value to hawks during their autumn migrations. Mr. Slack said that hawks, in their migration pattern, would pass the site in minutes, and would therefore not be affected significantly by its land uses or activities.

BACC now claims the site evaluation was performed in a cursory fashion (in other words, as a "windshield survey"), and wrongfully dismissed the site as unsuitable for the four cited species of special concern. BACC would like another study performed, but given the report already provided, there is no basis for further inquiry. BACC notes the Applicant's failure to discuss mitigation, as was ordered in my ruling. However, that failure is consistent with opinion expressed in the report that there are no impacts to mitigate.

For its part, BACC has not shown that for any of the species discussed, the site is critical habitat, or that operations (especially blasting) would have a significant wildlife impact, or result in a prohibited "taking" of any species protected by the ECL.

On the issue of the northern harrier, BACC said it would present a witness, Paul Feinberg, who would say that the methodology used and the conclusions drawn by Mr. Slack could not be supported professionally, and that the site habitat was highly suitable for this threatened species. Mr. Feinberg was identified as a harrier expert but there was no stated basis for his conclusions, unlike those of Mr. Slack.

Mr. Slack wrote that northern harriers nest on the ground in open habitats, that is, large expanses of marsh, hayfields and pastures, natural open field areas, and wet meadows or bogs. He and Department Staff agreed that the site was not suitable habitat for the harrier. On the issue of wildlife generally, Mr. Slack, in conjunction with the Applicant's engineers, said blasting would have no significant impacts. He acknowledged the loss of habitat caused by site disturbance, but said most species would continue to use adjacent areas, and would habituate to the noise that blasting would generate.

In summary, the Applicant performed the study required by my ruling. Based on that study's findings, and in the absence of adequate offers running contrary to its conclusions, one can now say that the project will have no significant impact on wildlife resources, and therefore that no issue has been raised.

TRUCK TRAFFIC IMPACTS, INCLUDING IMPACTS UPON AGRICULTURAL DISTRICT

BACC proposes as a hearing issue the impact the project would have upon the local agricultural district, which is certified under Article 25-AA of the Agriculture and Markets Law. BACC contends that the mining operation would generate so much truck traffic along Route 40 that slow-moving farm vehicles would effectively be forced off that road. BACC's argument is that as farmers lose access to their fields, farming itself will be "destroyed" in the Town of Easton.

BACC wants this alleged impact considered as a "social and economic consideration" under SEQRA and as a violation both of DEC's agricultural lands policy, dated April 17, 1978, and the mandate of the Agriculture and Markets Law, which states [at Section 305(3)] that "it shall be the policy of all state agencies to encourage the maintenance of viable farming in agricultural districts." [In a similar vein, DEC's policy is "to ensure, to the maximum extent possible, the protection and enhancement of the state's environmentally significant and economically valuable agricultural lands."]

The Peckham site is a combination of forest, shrubs, and open fields. None of it now is in agricultural use. On the other hand, dairy farms, pastures, and vegetable fields comprise much of the land on the north, west, and south of the site, including both sides of Route 40, which would carry trucks to and from the operation.

In a letter to DEC Staff, the Department of Agriculture and Markets said it believed DEC needed to thoroughly address the concern of local farmers about the impact of expanded truck traffic along Route 40 on the movement of local farm equipment, supplies, and products. But that agency did not file for party status, and BACC was the only conference participant to pursue this concern. BACC said it would call as hearing witnesses economists and land experts (as to the value of the district's agricultural resources) as well as local farmers, including George Houser, who has filed himself for party status. BACC said it would stage an actual demonstration on Route 40 to show that slow-moving farm vehicles could not compete successfully with dump trucks moving along the road at a rate BACC estimates of one every five minutes.

For its part, the Applicant performed a traffic study which is appended to its DEIS. That study concluded that the mining operation would not create any traffic capacity or safety problems, that New York State routes 29 and 40 will be structurally adequate to handle traffic from the site, and that sight distance and road grades are adequate for the intended use. The study said the type and number of vehicles which would use the proposed facility would not significantly change the mix of vehicles now moving along Route 40.

On November 30, 1990, the state Department of Transportation advised DEC that it concurred with the conclusions which are stated in the preceding paragraph. It agreed with the Applicant's consultant that while the sight distance at the access road was adequate, trees and brush there should be trimmed, and the access road paved for at least 200 feet east off Route 40.

According to DEC Staff, traffic safety concerns are outside its jurisdiction, and at any rate, the mining trucks would have to abide by highway safety laws. Staff's only permit conditions relating to traffic impacts state:

  1. that the Applicant shall ensure a sufficient staging area on-site for trucks waiting to be loaded (thereby to avoid trucks idling along Route 40) (mining condition No. 23); and
  2. that prior to operating the site, the applicant shall request that "Trucks Entering" and "Intersection Ahead" signs be installed by the DOT both north and south of the proposed access roadway (mining condition No. 16).

On the issue of traffic impacts, SEE also claims an interest, having retained a firm, Transportation Concepts, to review the Applicant's traffic study. SEE said this study lacked pertinent information (as outlined in a letter, dated October 23, 1990, from Transportation Concepts) but did not explain the importance of this information or how it would change conclusions reached by the study itself. SEE also had no study of its own. For these reasons, it raised no hearing issue.

BACC also raised no issue, its offer not being credible, its concerns too wildly overstated. There is no reason to think that mining trucks would prevent farm vehicles from accessing Route 40, or, once they did access the road, that the trucks would then force them off. Needless to say, there are highway rules that protect even slow-moving traffic, and means by which these rules can be enforced. One might restrict truck traffic to protect the farming district, but here no threat to the district is posed, even assuming BACC is right about the amount of new truck traffic this project would generate.

Finally, no issue exists as to highway safety per se, including the risk of collisions at the intersection of Route 40 and the access road, and the danger of incoming trucks lining up on Route 40 in the early morning hours, just prior to the start of business. These matters fall outside the Department's apparent jurisdiction; to the extent they can be looked at, they are covered by permit conditions (cited above) which mandate efforts to have warning signs placed along Route 40 (a state highway, under DOT's jurisdiction) and require establishment of an on-site truck staging area.

COMMUNITY CHARACTER IMPACT

BACC asserts as a proposed hearing issue the impacts this project would have upon the farming character of the Easton community. In its filing, BACC proposed to offer speakers on the town master plan and that plan's apparent emphasis on the preservation of agriculture. BACC argued that DEC must consider the potential of the mining operation to displace local residents and existing businesses.

At the issues conference, BACC cast its argument in economic terms, arguing that in its role under SEQRA, DEC must balance the relative contributions that farming and mining would have for the Easton community. BACC said that by its land use regulation, Easton had identified itself as a farming community, and that the introduction of mining, as an industrial use, would have profound social consequences. Economically, BACC said the mining operation would create fewer jobs than those that would be lost by destruction of a farming community that BACC said is very productive, especially for milk and dairy products.

BACC raised no issue here because it made no showing the project would actually displace local residents or farms. Actual impacts the project might have been considered and either have been mitigated or at least appear capable of mitigation. BACC's concerns as to what is and is not an appropriate land use are for the town to consider, not DEC. According to the Applicant, there is no zoning in the town of Easton, and the town master plan acknowledges the Peckham property is unsuited for farming.

As a matter of law, SEQRA review is a vehicle to address adverse environmental impacts and consideration of adverse economic impacts that are unrelated to environmental impacts is not within its purview [In the Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, May 14, 1992]. Whether farming is better than mining for Easton's economic health is not a SEQRA issue, although framed as such BACC.

NOISE IMPACTS UPON SURROUNDING PROPERTIES

BACC and SEE both propose as a hearing issue project-related noise impacts upon surrounding properties. The Applicant's DEIS states that the nearest sensitive receptor to the north is about 2300 feet from the project site property line. SEE notes that the Keith Stewart house is 1000 feet north of the Peckham site, and therefore that this information is wrong.

According to the DEIS, sound levels at the site's north property line will be less than 60 dBA, the equivalent of the sound of normal speech. BACC and SEE both acknowledged they had no consultant review the Applicant's noise calculations. The Applicant's noise study apparently did overlook the Stewart house, but there was no offer made that impacts at that house, being beyond the Peckham line, would be more serious than those at the line itself, which appear to fall within an acceptable range.

There was no offer that noise levels at the Stewart property or elsewhere outside the site would violate any standard or regulation enforced by the Department. For these reasons, no issue was raised, although it did appear that the statement about the nearest sensitive receptor would require correction in the response to public comments, which will be part of the FEIS.

DUST IMPACTS

SEE wants to raise as a hearing issue the impact of dust upon the surrounding community. Its filing for party status said SEE would introduce evidence as to the quantity of dust to be generated by the project, its effect upon farm products ingested by animals, and its effect upon the quality of residential life in the mine vicinity. Asked about this offer at the issues conference, SEE acknowledged it had done no formal study of dust impacts, although it still expressed concerns that the Applicant had not quantified the dust which would be generated, or considered dust impacts from blasting.

The Applicant's DEIS contains a discussion of potential dust sources, including unvegetated portions of the mine, stockpiles, haulageways, the processing plant, and trucks carrying material from the site. The DEIS lists various measures to prevent or mitigate dust impacts to the point of insignificance. These include removing vegetation only as needed for the orderly mine operation, using berms and mining walls to trap fugitive dust, mining below the surrounding topography, and equipping drilling equipment with dust control devices. The processing plant would be equipped with spray nozzles at screen and crusher locations, and the plant itself would be in the sheltered valley at the center of the site, thereby removed as much as possible from the surrounding properties. To control dust from trucks, the entrance road near Route 40 would be paved and swept as needed, and vehicle speeds on the haul roads reduced. Dust impacts from blasting are acknowledged, but would be controlled by removal of overburden from the faces to be blasted, and by a process called stemming, which involves placing inert material (such as sand, clay, or stone) atop the blast hole's explosive column, thereby confining the blast charge and improving blast efficiency.

Apart from these mitigation measures, DEC's draft permit provides that water or another approved dust suppressant must be applied to haulageways and all other areas of exposed sand, gravel and topsoil when necessary to prevent fugitive dust from causing a nuisance to users of areas outside the mine site (mining condition No. 3). The processing plant must be operated with a water spray dust control system (air permit condition No. 4) and plant roadways and stockpiles must be watered and/or treated with an approved dust suppressant, as appropriate, and road speed limited to preclude dust emissions in excess of 20 percent opacity (air permit condition No. 3)

Admittedly, the DEIS does not quantify the amount of dust this project would generate. On the other hand, neither has SEE, nor has it shown how, with the mitigation provided, dust impacts would be significant. Therefore, no issue is raised.

IMPACTS FROM INCREASED STONE PROCESSING

BACC and SEE want to raise as an issue those impacts they would associate with on-site stone processing. Prior DEC draft air permits had limited the amount of stone that could be processed to 200,000 tons per year. This figure was apparently based on an estimate furnished by the Applicant in its early calculations of particulate emissions.

When the issues conference resumed, DEC Staff had revised the permit to limit the amount of stone that could be processed to 500,000 tons per year, a 150 percent increase. This was done after a review requested by the Applicant which determined that the limit could be increased to this extent and still not trigger the Prevention of Significant Deterioration ("PSD") standards for particulate emissions, which are set out in 40 CFR Part 52 (subpart A). These standards would be triggered if particulate emissions were expected to exceed 250 tons per year, in which case a different air review process would occur.

BACC and SEE would prefer that any permit retain the 200,000 ton figure, although on an air quality basis, there exists no reason to keep it, since the Applicant can process the higher tonnage and still not trigger PSD. BACC and SEE made no offer to the contrary, although they also expressed concern that with the higher tonnage limit, other project impacts (unrelated to particulate emissions) would be exacerbated. No showing was made on this point, however, and as a practical matter, the higher figure does not alter the project scope or represent an increase in the mining operation.

If anything, raising the tonnage limit will extend the time each year during which stone is processed. But it should not raise the amount of processing on a daily basis, which is controlled, at the high end, by the crushing plant's capacity.

Beyond this, the entire operation is market-dependent, and the placement of higher limits does not mean that 500,000 tons of stone will actually be processed each year.

For the reasons noted above, no issue has been raised.

STORMWATER AND EROSION IMPACTS

SEE wants to raise as a hearing issue stormwater and erosion impacts related to the stripping of vegetation to mine the project site. In its issues filing, SEE said it had expert opinion as to erosion control measures and the effect of post-operation storm water runoff. At the issues conference, SEE admitted it had retained no consultant and prepared no report on this issue.

SEE was critical of the Applicant's DEIS as not figuring the amount of storm water runoff this project would generate. However, SEE made no offer that runoff would be a significant impact after one considered the mitigation afforded by the project proposal, as conditioned by the draft mining permit.

SEE said the Applicant did not provide site-specific erosion control measures, although several are listed in the DEIS, including grading to ensure that erosion effects are restricted to the project site.

A Class "C" stream flows through the central part of the site and connects, just outside the site, with Flately Brook. SEE contends the application does not identify the potential impacts of storm water runoff upon stream quality, although the Applicant, in its DEIS, said the mining operations and the area around the settling ponds would be graded so as to prevent sediments from entering the stream.

DEC's draft permit requires that a hay bale/filter fabric dike be constructed along both sides of the stream prior to the start of initial site work (mining condition No. 15). These dikes would have to be inspected and maintained until all grading and berm construction is complete, thereby preventing turbid water from entering the stream. The draft permit states the dikes should, if practicable, be at least 25 feet from the stream bank, with an undisturbed buffer between the stream and the dikes. According to DEC Staff, this would place the dikes close enough to the stream to be effective, but not so far away that they would impede operating equipment.

Additional draft permit conditions hold the Applicant to strict performance standards preventing any contamination of surface or subsurface water (mining condition No. 4) and preventing surface water from draining in such a manner that sediment is carried onto neighboring properties or into any streams, rivers or other water bodies (mining condition No. 7). SEE made no offer that the Applicant would not be able to meet these performance standards. Therefore, no issue is raised.

CUMULATIVE IMPACTS (PROJECT SEGMENTATION)

SEE proposes as a hearing issue the cumulative impacts of mining of the 92-acre project site with mining of a separate 25-acre parcel which is contiguous to the site's south end. That smaller parcel was purchased by the Applicant in 1990, after its DEIS was completed. The parcel is undeveloped and not the subject of any pending application.

The Applicant said it is not obliged under SEQRA to reveal its plans for the 25-acre parcel. SEE says the parcel is suitable for mining and would likely be used for that purpose, given the lack of other apparent reasons for the Applicant having bought it.

Regarding cumulative impacts, clearly no issue is raised, as there is nothing going on at the smaller site. SEE's concern is more properly expressed as one involving project segmentation: in other words, the division of one large project into smaller components.

On the segmentation issue, the Commissioner has identified certain factors to tell whether the scope of an EIS should be expanded. These are outlined in his interim decision, dated August 13, 1992, In the Matter of Dutchess Quarry & Supply Co., Inc. In that mining matter, the Applicant had an option to purchase a 153-acre parcel adjacent to the proposed project site and had made statements evincing an interest in eventually mining it. Concerns were then raised as to whether the SEQRA review should encompass the impacts of mining the adjacent parcel.

In his interim decision (at page 2) the Commissioner said that whether to expand the scope of the EIS was dependent on several factors. These factors included the plans and capability of the Applicant to mine the adjacent parcel, steps taken toward mining the parcel, whether mining of the parcel would be feasible, and whether the proposed mining project is a totally independent venture that is economically viable without reference to the adjacent parcel.

In the Dutchess Quarry matter, the Commissioner determined that no expansion of the scope of the EIS was legally required. In this case, too, I find no basis for expansion, given the factors identified by the Commissioner. For one thing, there is no stated plan for the adjacent parcel and no application on file. There is nothing proposed from which impacts could be assessed. The adjacent site may be suitable for mining, as alleged by SEE, but there is no indication that the project, as now proposed for the 92-acre site, cannot stand alone without reference to that parcel.

Any impacts from mining the adjacent parcel would have to be considered if and when an application is filed. These would include any impacts that could be foreseen from the combined operations at the two different sites.

Under existing circumstances, no issue is raised.

OPERATING HOURS

BACC objected to a change in the draft permit, made at the issues conference, which would allow weekday operations to begin at 6 a.m. (instead of 7 a.m., as provided for in the prior draft). This change was made at the Applicant's behest, it having argued that construction projects normally require a 7 a.m. starting time, and that material suppliers must be open early in the morning to allow for the loading of trucks and travel time to the job site.

BACC made no showing that with the change to 6 a.m., there would be any particular impact to local residents. Although there were concerns about trucks being staged along Route 40, apparently at a time when farmers are also starting their day, these concerns are allayed by the permit condition (cited previously) which requires the Applicant to ensure a sufficient on-site staging area for trucks that are waiting to be loaded. This condition was recently added to the DEC draft permit, apparently in response to BACC's concerns.

SUMMARY RULING

Two issues have been raised for adjudication: (1) mining and blasting impacts upon groundwater resources, including neighboring wells and springs, and (2) the efficacy of the current tree planting plan to mitigate visual impacts. A ruling as to issues stemming from impacts upon on-site archeological resources is reserved, pending the site inspection which is described earlier in this ruling.

The Supplemental Environmental Impact Statement (SEIS), as accepted by DEC Staff in August, 1992, is substantially compliant with my ruling of July 9, 1991, as amended by the Commissioner's interim decision, dated January 27, 1992. To the extent information was not provided, it was because of project changes, or in the case of mitigation measures, because no significant impacts were identified. Except with regard to any issues that are adjudicated (as to which the hearing record shall supplement the EIS) any necessary clarifications, corrections or revisions to the EIS can be addressed as part of the response to public comments, which shall be incorporated to the final EIS.

RULING ON PARTY STATUS

SEE, BACC, and Mr. Houser are all granted full party status in this matter, although on the issue of the planting plan, only BACC shall be heard, since it alone raised the issue for adjudication. The Applicant challenged the filings for party status which were made by BACC and SEE on the ground these filings did not include membership lists. The Applicant requested such lists but SEE and BACC would not produce them on privacy grounds, asserting that to do so would have a chilling effect upon their ability to organize.

At the conference I ruled that if there was some real doubt as to whether BACC and SEE were locally-based, I could order their membership lists produced for my in camera inspection. Here, however, no such doubt was raised; beyond that, each group's officers were identified, and all are Easton-area residents. For these reasons, I ruled at the conference that, for purposes of this proceeding, both SEE and BACC would be considered local groups. I now find also that they, with Mr. Houser, have amply demonstrated social, economic and environmental interests in the project, and therefore should have full party status as to issues they have raised. For those issues that they share, the intervenors shall be treated as one consolidated party unless it becomes evident that their interests are divergent. Therefore, they shall coordinate their efforts, to the greatest extent possible, so as to avoid repetitious argument and testimony.

APPEALS

Pursuant to 6 NYCRR Section 624.4(d) and 624.6(d), the rulings of the ALJ denying or limiting party status and setting forth the issues for hearing may be appealed in writing to the Commissioner within three days of the rulings. Allowing extra time for the parties' convenience, and recognizing the length of these rulings, any appeals must be received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-5500) no later than February 24, 1993. Any letters or briefs in support of or in opposition to these rulings must be received by March 5, 1993. The parties shall ensure transmission of all papers to me and the others on the service list at the same time and in the same manner as transmission is made to the Commissioner. No submissions by telecopier will be allowed or accepted.

Appeals shall fully address objections the parties may have to any of the rulings made herein, including my rulings with regard to the SEIS, and its compliance with my and the Commissioner's directives. On the question of impacts to archeological resources, I am reserving my issues ruling pending a visit to the project site. That ruling shall be made later, in writing, and subject to appeal at that time.

ORDER OF DISPOSITION

I will issue a memorandum concerning conduct of the adjudicatory hearing once the deadline for appeals has passed or, assuming appeals are made, after they have been determined by the Commissioner. However, as a first order of business, a site visit shall be conducted on the issue of archeological resources. In conjunction with my office, counsel for the Applicant shall arrange a date for this visit, to be held as soon as possible, on the parties' first available date.

Edward Buhrmaster
Administrative Law Judge

Albany, New York
February 12, 1993

TO: Service List

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