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Preble Aggregate, Inc. - Decision, July 19, 1996

Decision, July 19, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

for a Mined Land Reclamation Permit Pursuant to Title 27 of the Environmental Conservation Law ("ECL") and its Implementing Regulations Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420 through 426

DEC No. 7-1136-00007-00001

DECISION

July 19, 1996

The attached Hearing Report/Final Environmental Impact Statement ("FEIS") of Administrative Law Judge ("ALJ") John H. Owen in the Matter of the Application of Preble Aggregate, Inc. for a Mined Land Reclamation Permit to mine sand and gravel at a site located south of Mary Belle Road, between Interstate 81 and New York State Route 281 in the Town of Preble, Cortland County, New York, is hereby adopted as my Decision in this matter, subject to my findings and comments below.

This Decision constitutes my final decision pursuant to the Mined Land Reclamation Law and pursuant to the State Environmental Quality Review Act.

The project, to construct and operate a sand and gravel mining facility on a 40 acre site in the Town of Preble, is described in the ALJ's Report, the DEIS/DSEIS are in the mining plan. The only issue for adjudication, following my Interim Decision of September 7, 1995 in this matter, was the matter of farmland loss versus need. The ALJ finds that about 14 acres of good quality farmland will be lost after reclamation. Overall, I cannot disagree with the ALJ's determination that this amount of loss does not outweigh the need for aggregate and sand under the facts of this case. I note that the Department of Agriculture and Markets, in a letter to our Department in January 1996, said that "since mining projects most often involve willing seller transactions between agricultural landowners and mining interests, the Department [of Agriculture and Markets] generally does not involve itself in deliberations over whether a sale of farmland for mining purposes should or should not occur." I take this to suggest that the farmland loss involved in this case is not a matter of objection as a matter of agricultural policy. I note further that the record shows that cropland losses in the County amounted to over 25,000 acres between 1984 and 1994 (from 94,000 acres to 79,000 acres), apparently due to market factors. (See Exhibit 18). Given these facts, even while cropland loss is a factor we properly consider under SEQRA, I cannot say that the 14 acre loss projected to be attributable to this project is a significant adverse environmental impact, especially when weighed against the need for aggregate, and our responsibility to assure orderly development of mining to provide materials for roadbuilding and related construction needs.

Therefore, I find that the farmland loss question and the concerns raised in my September 7, 1995 Interim Decision have been adequately addressed, and I concur that the project should go forward.

Certification of Findings

Having considered the Draft and Final Environmental Impact Statements, the Draft Supplemental Impact Statement, comments thereon and responses thereto, and having considered the preceding written facts and conclusions relied upon to meet the requirements of former 6 NYCRR 617.9, as made applicable by the transition provisions of existing 617.19, this Statement of Findings certifies that:

  1. The requirements of 6 NYCRR Part 617 have been met; and,
  2. Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the proposed Preble Aggregates project minimizes or avoids adverse environmental effects revealed in the environmental impact statement process to the maximum extent practicable, including effects disclosed in the environmental impact statement, and that adverse environmental effects will be minimized or avoided to the maximum extent practicable by incorporating in conditions to the final permit those mitigative measures identified as practicable.

I direct that this matter be remanded to the Department Staff to issue the Applicant a Mined Land Reclamation Permit with conditions consistent with the record in this proceeding, and to complete the SEQRA notice and filing requirements for completion of a Final Environmental Impact Statement required by 6 NYCRR Part 617. This Decision shall then be effective ten (10) days following the date of publication of notice of completion of the FEIS.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Michael D. Zagata,
Commissioner
Albany, New York

Dated: July 19, 1996

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

the Application of PREBLE AGGREGATE, INC. for a Mined Land Reclamation Permit Pursuant to Title 27 of the Environmental Conservation Law ("ECL") and its Implementing Regulations Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420 through 426

- by -

John H. Owen Administrative Law Judge

DEC No. 7-1136-00007-00001

HEARING REPORT/FINAL

Supplemental Environmental Impact Statement

HEARING REPORT/FINAL SUPPLEMENTAL IMPACT STATEMENT

The complete hearing record, including the Draft Environmental Impact Statement ("DEIS"), Draft Supplemental Environmental Impact Statement ("DSEIS"), comments received at hearing, the Applicant's responses to comments, rulings, interim decision, all correspondence in this matter after the date of the hearing notice, all hearing exhibits, the stenographic transcript of the hearing and post-hearing briefs, is on file in the Department's Office of Hearings and Mediation Services, Room 423, 50 Wolf Road, Albany, New York 12233-1550. The entire hearing record, consisting of all the above documents, is incorporated by reference in this Hearing Report/Final Supplemental Environmental Impact Statement.

Copies of the DEIS and the stenographic transcript of the hearing proceedings are on file in the Department's Division of Regulatory Services, Room 538, 50 Wolf Road, Albany, New York 12233-1750.

SUMMARY STATEMENT

This Summary Statement is provided as a prologue to the Hearing Report/Final Supplemental Environmental Impact Statement ("SFEIS") Article 8 (Environmental Quality Review and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 (State Environmental Quality Review).

Preble Aggregate, Inc. ("the Applicant") applied to the Department of Environmental Conservation ("Department" or "DEC") on May 21, 1987 for a Mined Land Reclamation Permit for a proposed sand and gravel mine in the Town of Preble, Cortland County, pursuant to Title 27 of the Environmental Conservation Law ("ECL") and its implementing regulations Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420 through 426.

Legislative public statement hearings were held on February 22, 1995 to receive comments on the proposed project and Draft Supplemental Environmental Impact Statement ("DSEIS"). A site visit was conducted on May 8, 1996.

In Rulings upon Party Status and upon Issues for Adjudication issued June 26, 1995 Administrative Law Judge ("ALJ") John H. Owen found but one issue for adjudication: the loss of prime agricultural land versus the need for gravel.

Incorporated by reference in this Hearing Report/FSEIS is the complete hearing record, including the DSEIS, comments received at hearing, the Applicant's responses to comments, rulings, interim decision, all correspondence in this matter after the date of the hearing notice, all hearing exhibits, the stenographic transcript of the hearing and post-hearing briefs. The entire hearing record in this matter provides the basis for this Hearing Report/FSEIS and for the Department to issue its Decision.

Following the adjudicatory hearing on this issue, this Report finds that the Mined Land Reclamation Permit should be issued to Preble Aggregate, Inc.

PROCEEDINGS

The Department as lead agency pursuant to the State Environmental Quality Review Act (Article 8 of the New York State Environmental Conservation Law) determined that the proposed project may have a significant impact upon the environment and issued a Positive Declaration on November 28, 1988. A Draft Environmental Impact Statement ("DEIS") has been completed and was accepted for the proposed project on March 7, 1990. The Mining Plan and Reclamation Plan were included in the DEIS. On June 5, 1990 the Department staff accepted responses from the Applicant concerning the comments about the DEIS in a document entitled a Final Environmental Impact Statement, Volume II ("FEIS"). By letter of August 6, 1990, the Applicant requested that the scheduling of a hearing on the application be postponed. This matter was referred for hearing on February 19, 1993 and was received in the Office of Hearings on February 24, 1993. Pursuant to a Notice of Hearing issued on March 1, 1993, a hearing was held in the Cortland County Office Building on April 20, 1993 and an Issues Conference was held in the Conference Room in the Department's Cortland, New York sub-office on April 21, 1993.

Following the Issues Conference the parties and potential parties submitted requests for party status, proposed issues for adjudication, and comments on the DEIS. By Rulings and Memorandum to Parties issued August 4, 1993, three potential parties were tentatively granted party status and one was tentatively denied party status, certain issues were tentatively set for adjudication, and the Applicant was directed to prepare a draft Supplemental Environmental Impact Statement ("draft SEIS" or "SEIS"). Therefore, and after further submission, the Applicant requested that the Issues Conference be reconvened and by Memorandum issued September 20, 1993 a reconvened Issues Conference was set for October 6, 1993 at the Department's Sub-Office at Homer, New York. The reconvened Issues Conference was held as scheduled and at it there was discussion of the requirements of the Rulings of August 4, 1993 and the draft SEIS to be prepared. The draft SEIS was then prepared, submitted and accepted by the Department Staff on December 20, 1994.

On January 11, 1995 a Combined Notice of Public Hearing, Notice of Complete Application and Notice of Availability of a Draft SEIS was issued setting a hearing to receive comments from the public upon the draft SEIS and the applications contained in it for February 22, 1995 at the Cortland County Office Building at Cortland, New York. Under date of January 24, 1995 the Department Staff forwarded to all on the service list a revised draft permit which, by Memorandum to Parties and Potential Parties also issued January 11, 1995, was to be commented upon at the public hearing on February 22, 1995. The public hearing was held as scheduled and at the hearing oral and written comments on the draft SEIS were received and following the hearing further written comments were received.

Proposed Project: A map showing the project site and some of the surrounding areas is attached as Appendix A. The Applicant proposes to mine and process approximately 2 million cubic yards of sand and gravel from approximately 25 acres of a 40 acre site located south of Mary Belle Road, between Interstate Route 81 and New York State Route 281 in the Town of Preble, Cortland County, over a 20 year period. Material will be removed from below the water table to a maximum depth of 40 feet. The applicant proposes to reclaim the site as a pond/wetland area suitable for fish and wildlife habitat. When reclamation is complete, the Applicant proposes to divert an existing tributary to Tully Lake into the pond/wetland which will then drain into Tully Lake.

Proposed Mining Plan: The Applicant proposes to carry out the mining in three stages. During stage one, approximately 3 feet of overburden will be stripped with bulldozers and scrapers. Topsoil and subsoil will be stockpiled near the perimeter of the site for subsequent use in ongoing reclamation of the mined out areas as mining progresses. During stage two, sand and gravel will be removed to a depth of approximately 15 feet (one foot above the water table) by front-end loaders. Concurrently, the natural bern along the west side of the property will be vegetated to create a visual screen to Interstate 81. Subsequently during stage three, mining will remove material from below the water table to a maximum depth of approximately 40 feet, the effective limit for dragline equipment. Mining will commence in the west adjacent to Interstate 81 and will proceed eastward until material has been removed from approximately 25 acres of the site.

Proposed Reclamation Plan: Reclamation of the site will be accomplished by differential backfilling and grading to produce a pond of irregular configuration, with varying underwater slopes. The Applicant claims the resulting pond, with both shallow and deep water areas, will be suitable for a maximum number of possible uses, such as a passive fish and wildlife habitat, recreation or the development of a viable wetland area. When reclamation is complete, the unnamed tributary which enters Tully Lake at Cummings Bay will be diverted to the pond/wetland and then drain into the Lake.

Change in Hearing Officers: From its inception until March 23, 1995 this proceeding was assigned to Administrative Law Judge ("ALJ") William J. Dickerson and thereupon was re-assigned to ALJ John H. Owen due to the impending retirement of ALJ Dickerson from State Service.

Governing Procedural Rules: Procedurally this proceeding is governed by 6 NYCRR former Part 624 in that ALJ Dickerson determined to hold an adjudicatory hearing (in his Rulings issued August 4, 1993) prior to the effective date of 6 NYCRR (present) Part 624, January 9, 1994 (See 6 NYCRR (present) 624.1(1).

Adjudicatory Hearing: The adjudicatory hearing was held at the Town of Preble's Firehouse, in the Town of Preble, Cortland County, New York, on February 6 and 7, 1996.

The Department Staff was represented by Jennifer Powell, Esq., Assistant Region 7 Attorney, the Applicant by Hancock & Estabrook, LLP of Syracuse, New York (Paul M. Hanrahan, Esq. and Michael A. Oropallo, Esq., of Counsel) and the Intervenors (the Town of Preble, the Tully Lake Property Owners' Association and the Song Lake Association) by Fix, Spindelman, Brovitz, Turk, Himelein & Shukoff of Syracuse, New York (Karl S. Essler, Esq., of Counsel).

The Applicant called as witnesses Keith G. Hawkins, a principal of the applicant; Jonathan Harrington, Phd., geologist; and William T. Underwood, farmer. The Intervenors called Daniel S. Dineen, Senior Planner with the Cortland County Planning Department; Amanda Barber, office manager of the Cortland County Soil and Water Conservation District; Peter Knapp, Town of Preble Supervisor and farmer; and Robert F. Oleck, Phd. and structural engineer. Staff called Joseph S. Moskiewicz Jr., Mined Land Reclamation Specialist, Region 7. Some 25 exhibits were received in evidence.

Post-hearing memoranda were submitted on March 25, 1996 on behalf of the Applicant, April 15, 1996 on behalf of Staff and the Intervenors (separate memoranda) and April 22, 1996 (reply memorandum) on behalf of the Applicant. On May 13, 1996 the Applicant submitted a Department of Transportation ("DOT") Projects List for 1995-2000 which supplemented a similar DOT list for an earlier period already in the record. The other parties were offered an opportunity to respond to Applicant's submission by May 31, 1996. The Intervenors' response was received May 30, 1996 (Staff counsel did not respond). By letter dated June 10, 1996 the ALJ advised all parties that official notice has been taken of the DOT Projects List for 1995-2000 and that the record closed on receipt of the Intervenors' response on May 30, 1996.

Discussion

As noted earlier, only one issue was adjudicated: the loss of prime agricultural land versus the need for gravel.

The loss of prime agricultural land on the proposed mining site has two components: 1) the amount of prime farmland now on the site and 2) the amount of that which will be taken by the mining.

Also to be considered concerning the loss of prime agricultural land is the effect of local laws prohibiting mining and local policy against mining.

The Applicant has entered into a contract (Exh. 2) whereby, if the permit is issued, it will exchange with William Underwood a 60 acre parcel immediately south of the proposed mining site owned by the Applicant for the 40 acre proposed mining site presently owned by Underwood. The Applicant offers this land swap as mitigation for the loss of prime agricultural land. This being so, several sub-issues must be explored here as well, such as: whether there is any mitigation if there is to be a net loss of farmland, what is the condition of the 60 acres in terms of soil quality, what other factors (such as slopes, flooding and so forth) affect the 60 acres, and what assurance is there that the 60 acres will remain in farming instead of being turned to a different land use.

Lastly on the issue of prime farmland is the question of the recent trends in loss or gain of farms and farmland in the area.

The need for gravel (and sand) also has several components, such as: what are the prospects for future DOT or other projects requiring sand and gravel, how far away are they, what quality of the aggregate is required, what is the quality of the aggregate on the proposed mining site and what is the extent of other sources of the quality required.

LOSS OF PRIME AGRICULTURAL LAND

The Applicant presented an aerial photograph of the proposed mining site (Exh. 6) and a series of overlays and corresponding white copies (Exhs. 7-7A through 11-11A): Exhibits 7 and 7A show outlined in green what applicant says is the area traditionally farmed and the area farmed by Mr. Underwood; Exhibits 8 and 8A show outlined in purple what applicant contends is the area previously disturbed by mining; Exhibits 9 and 9A show the Soils Group Classification on the site; Exhibits 10 and 10A show outlined in blue the reclamation pond, that is to say the area to be consumed by mining; and Exhibits 11 and 11A show outlined in yellow what applicant claims will be the area of cropland left after mining.

As suggested above, it appears that the best method to determine how much prime land is likely to be lost by mining is to first determine about how much prime land is now on the site and then determine about how much of that will be consumed by mining.

The Amount of Prime Agricultural Land Now on the Site

This question devolves into several subquestions such as the effect of previous mining on the site and the degree of slopes and frequency and extent of flooding on the site.

Previous Mining

The Applicant contends that 10 acres located on the western area of the proposed mining site was mined prior to 1977. This was an area known as a "borrow pit" used in the construction of Route I-81.

Applicant's expert, Dr. Harrington, testified that it appears that both the topsoil and the subsoil were removed from about 10 acres and later placed back improperly (collectively rather than subsoil first then topsoil) destroying the soil structure.

Soils are classified (by Cortland County Agricultural and Soil Conservation Service) Soils Groups 1 through 10 (the higher the number the lower the grade) with Soils Groups 1 through 4 considered prime) and Dr. Harrington said this 10 acre area is classified 3 in some parts and 9 in others, but that in view of the fact that the entire 10 acre area was disturbed by prior mining, is subject to frequent flooding and has never been farmed the 3 classification should be lowered a long way down.

Neither Staff nor the Intervenors offered anything substantial in opposition on this point.

It does appear that about 10 acres have been lost to farming as a result of previous mining.

Slopes and Flooding

Dr. Harrington said the slope on the eastern side of the site was 27ø or a 50%, but even so some crops could be grown there; that the slope was 15ø on the west side (Classification 9) and more crops could be grown here; and that the slope on the north of the resulting pond was 10% and better yet for growing crops.

As noted, Exhibits 7 (an overlay) and 7A (a white copy) show the area of the site traditionally farmed outlined in green.

Farmer Underwood said in 32 years of farming at the site the area outlined in green (22.5 acres, Exh. 7A) was the only area he used because the rest was too wet or too steep. More specifically on the south of the green outline is a creek bed, wet most of the time; and on the west it is either under water ten months of the year or too steep for a tractor or a four-wheel drive vehicle. Although this might produce crops in the summer, Underwood uses it for pastures.

Underwood said that the 11.3 contiguous acres that Dr. Harrington said will be left after mining (Exh. 11 and 11A) could be used on a limited basis and be prime land if treated in the proper way. Indeed Underwood said he would rent it.

Supervisor Knapp said he passes the site three times a week and that his brother farms similar land bordering the site. He said further that Underwood cultivated more like 30 acres than 22.5, corn and hay on the west of the area outlined in green on Exhibit 7A, field corn outside of the green on the south but north of the intermittent stream, and short crops in the area previously mined as shown on Exhibit 8A.

Knapp said it is impossible to operate or turn a tractor on the land left after mining (Exhibit 11A) and you could only produce garden variety crops such as tomatoes, peppers, shrubs, vegetables and small fruits; and if you tried to use a tractor, especially on the 27% slope you would put it in the pond.

The issue here is not how much of the site has been farmed, cultivated, or has produced crops; rather the question is how much of the site is prime farmland. Indeed, if Exhibit 7 (area traditionally cultivated and used by Mr. Underwood) is put over Exhibit 8 (area previously mined), it is seen that Mr. Underwood, in the western part he works, is over 100 feet into the area previously mined; and if Exhibit 9 (Soils Groups) is laid over Exhibit 7 (area farmed), we see that a large area of the southwest corner farmed is in Soils Group 9 and that a rather large area south of the area farmed is in Soils Group 2.

The area on the western side of the area worked (either previously mined or Soils Group 9, or both) appears to be only slightly greater than the Soils Group 2 area south of the area farmed. As noted, going south from that area there is a Soils Group 9 area and south of that another Soils Group 2 area. It appears that the Soils Group 2 areas outside the area farmed just about offset the areas previously mined and/or Soils Group 9 within the area farmed.

This would mean that the site now contains about 22 areas of prime farmland (Exhibit 7A); however, slopes, shrubs, and trees along the eastern end of the northern border of the site and south down the line of the mining limit on the east side make parts of these areas, although classified as prime (Soils Group 2) not, in fact, prime. It is difficult to say, with any precision, how much to deduct for these factors in these areas; nevertheless, a deduction of four acres appears reasonable, making the total of prime land on the site about 18 acres.

The Amount of Prime Land to be Consumed by Mining

With the deductions from the prime land category of some land classified as such (as made in the above section) and determining there that there were about 18 acres of prime land, it remains only to overlay the reclamation pond (Exh. 10) with the Soils Group (Exh. 9) and estimate how much of the area determined to be prime the pond will consume. This estimate is that 60% of the 22.9 acre pond covers prime land, that is to say about 14 acres of prime land is to be consumed by mining.

Local Laws and Policy Against Mining

Daniel S. Dineen, a Senior Cortland County Planner identified Cortland County's 1978 Land Use Plan (Exh. 16) and pointed out that one of its agricultural goals was to take secondary agricultural land out of production before prime land. On cross-examination, however, it was shown that Cortland County also has industrial development goals where it is stated that "Extraction industries are recognized as a legitimate part of the County economy," that the County Planning Department's opinions on DEC permit applications is only advisory, that the County Planner had recommended approval of certain industrial sites, including some for mining where prime farmland was to be lost, and that the Planners set aside no area specifically for mining.

Section 26A of the Town of Preble's Zoning Ordinance (Exh. 21), enacted July 11, 1988, creates a "Zone A" where sand and gravel mining is prohibited.

Exhibits 19 and 20 are the Town of Preble's land use plans. Exhibit 19 was adopted by the Town Board in 1986 (when Mr. Knapp was on the Planning Board) and Exhibit 20 (which replaced Exh. 19) was adopted in 1995 (when Mr. Knapp was Town Supervisor). The goals of these plans is to set aside prime land, the valley type farm land, from secondary agricultural land, the hillsides and less productive land; and, in general enhance the rural character of the Town and to encourage encroachment on secondary land wherever possible.

In Exhibit 20 there is a map showing the goals for 1995 to 2000 and it shows the entire site as prime farmland.

Neither the Town's Zoning Ordinance or its land use plans may cause a suspension of the case or cause the DEC to rule on the ordinance or to assess the land use policies.

As the Commissioner stated in an Interim Decision dated May 1, 1996 in the matter of 4C's Development Corporation, DEC Application No. 4-382400045/00001-0:

"I concur with the ALJ's Ruling on this issue.... Essentially, the applicant's ability to obtain zoning and other permits is not a matter to be adjudicated or resolved by DEC. Any DEC permit, if issued, in this matter would provide that the permittee is responsible for obtaining other required permits or approvals, including Town permits. But it is well established that interpretation of zoning codes, issues of prior non- conforming use, and similar questions need to be decided by the local government having jurisdiction, subject to judicial review if necessary. (Town of Poughkeepsie v. Flack, 84 AD2d 1, 445 NYS2d 233 (2d Dept. 1981), 1v. denied, 57 NY2d 602, 454 NYS2d 1026 (1982)).

While arguments were made that DEC should stand aside to allow disputes with the Town over local approvals to first be resolved, the ALJ was correct in rejecting them. The UPA, ECL Article 70, does not permit DEC to put applications in indefinite "hold" pending the outcome of local permit requests. Moreover, DEC consideration of a proposed project and related SEQRA review prior to local consideration is appropriate. Such DEC consideration provides the local authorities, at the time the proposal comes before it, with the terms and conditions of DEC's approval. This gives the local government capability of focusing on the actual project proposal, free of speculation as to whether it might be changed or be denied in the DEC permit process. See Matter of Lane Construction, Interim Decision of the Commissioner, November 27, 1995. The Lane case under the Mined Land Reclamation Law, while not directly applicable here, reflects a preference for initial permit sequencing at the DEC level. Initial sequencing of permit processing through DEC is therefore appropriate." (page 3, emphasis added)

The Mitigation Matter

Both the 60 acre site and the 40 acre site are being presently farmed. As found above, about 14 acres of prime farmland will be consumed by mining. Hence, even if the 60 acre site was all prime farmland, there would be a net loss of prime farmland.

We only have Mr. Underwood's word and Dr. Harrington s that the 60 acres is all prime. Yet there were no soil samples from the 60 acres and no Soils Group information on the 60 acres. Then too, Mr. Underwood is to receive 20 more acres than he would be giving; and he may stand to profit from the exchange in other ways. Nor is there any guarantee that the 60 acres will remain in farming instead of being turned to a different land use.

No mitigation has been proven.

Trends in Loss or Gain of Farms and Farmland in the Area

Amanda Barber testified with reference to Exhibits 12 and 18 (Agricultural Statistics) that there was a 21.3% decrease in Cortland County farms between 1984 and 1994 and a 19.9% decrease in acres in farming in Cortland County between 1984 and 1994.

The precise reasons for these declines are not known; however, some of the factors testified to by Mr. Underwood surely play their part. Among these are declining profits, increasing amounts of fertilizer, and stringent restrictions on pesticide use. These cause smaller farms to fail and go out of business, barns to be vacant, even some land, and some of it prime going fallow. This, in turn, causes rental and sale values to drop markedly.

These problems are not the applicant's fault; nevertheless, there is currently about one-fifth fewer farms and farmland in Cortland County since 1984.

NEED FOR THE AGGREGATE

As noted earlier, this issue has several components including: what are prospects for future DOT or other projects requiring sand and gravel, how far away are they, what quality of the aggregate is required, what is the quality of the aggregate on the proposed mining site, and the extent of other sources of the quality required.

Future DOT or Other Projects

The "Summary-Central New York" attached to the DOT Project List for 1995-2000 shows that for Cortland County 9 projects for 1993 had not begun when the DOT list was issued in April 1996. Those projects are for 16.35 million dollars and there is another 31 "New Projects" for Cortland County for 42.05 million dollars. For Onondaga County, almost all of which is in the market area for the proposed mine, there are 50 1993 projects not begun for 154.5 million dollars and another 79 "new projects" for 62.05 million dollars.

In the Draft Supplemental Environmental Impact Statement ("SEIS"), Appendix A, page 25 there is a reference from the earlier DOT project list for Cortland/Onondaga Counties for a pavement project described as "I-81 R & P Broome Co. to Nedrow" for 1994-95 for 24.2 million dollars. In the later DOT project list, there is what is apparently a reference to this same overall pavement project ("I81 Co. Ln. - RT 173") for 1996-97 at 12.4 million dollars.

While the DOT lists contain no information as to the quantity of aggregate required for each or all the projects, it is far more likely than not that there is a large market for DOT approved aggregate in Cortland and Onondaga Counties.

The SEIS (p. 19) calculates that 37,000 tons of high quality aggregate are required for each mile of highway and to do the entire I-81 job 3.6 million tons are required. Then too, highway pavement begins to deteriorate in about 6 years and then the rehabilitation is begun anew (SEIS, p. 20).

Nearness of the Projects

All parties agreed that on the perimeter of a circle with the site at the center and a 35 mile radius the cost of the aggregate is about the same as its transportation cost, in other words, at that point the transportation costs start eating up the profit.

Yet plotting out the 35 mile radius circle we see that the market area extends northwest to Seneca Falls in Seneca County, south well into Tioga County, northeast to Hamilton in Madison County and east southeast to Norwich in Chenango County.

There are many projects in the latest DOT Projects List in Cayuga and Seneca Counties, a plethora of projects designated only as "Central New York", and Madison, Tioga and Chenango Counties are not included in either the earlier or latest DOT lists which are for "Central New York (Region 3)".

Quality Required

Dr. Oleck, the intervenors' expert, testified that the DOT adopts the American Society for Testing Materials ("ASTM") standards and then adds on some further standards of their own.

For crushed gravel there are three DOT tests:

  1. a magnesium sulfate test in which the sample may wear off no more than 18% of its original weight,
  2. an abrasion test in which the sample may lose no more than 35% of its original weight, and
  3. a freeze-thaw test in which the sample may lose no more than 10% of its original weight.

Sand is tested at a number of sieve (screen) sizes both above and below the water table and there is a DOT specification for each sieve size, the same for both above and below the water table. Sand is also given the Magnesium Sulfate Test in which it may lose no more than 30% of its original weight.

Dr. Harrington arranged for the applicant testing according to these DOT standards for 1985 and 1989.

Quality on Site

In 1985 there was sieve testing of #1 Stone from above and below the water table and #2 Stone also from above and below the water table. The #1 stone size was out of specification for both above and below the water table on the 1/4 inch sieve size. The Magnesium Sulfate Test tested only #2 Stone above and below the water table and from each source more was lost than the DOT standard allows, that is 19.9% and 22.1% against the DOT maximum of 18%.

In the 1985 testing, the sand was out of DOT specification for at least 4 sieve sizes from above and below the water table. On the Magnesium Sulfate Test sand above the water table was not suitable for Portland Cement Concrete (37% loss against 30% DOT standard) but was suitable for Bituminous Concrete where the DOT standard is 45%. Sand below the water table lost only 28% against a 30% DOT standard for Portland Cement Concrete and a 45% one for Bituminous Concrete, and thus was suitable for both these concretes.

In 1989 only crushed gravel was tested and this passed the Abrasion Test, the Magnesium Sulphate Test and the Freeze-Thaw Test, by wide margins: Magnesium Sulphate 10.1% loss against 18% DOT maximum; abrasion 29.3% versus 35% DOT maximum; and freeze-thaw 7% loss compared to 10% DOT maximum.

Dr. Oleck expressed concern about this crushed gravel being used where strength and durability were important, such as bridge peers and slabs, columns and retaining walls in buildings; however, by passing the DOT tests the applicant would be qualified to supply the aggregate to the DOT projects and other projects which are said to most likely also adopt the DOT standards. If changes are in order in the DOT approval process, that is for the DOT and/or others who will be using possibly unsuitable material.

Other Sources: The Competition

The applicant contends that there is only one State approved sand and gravel source in Cortland County and only one in Onondaga County south of Syracuse (DEIS Figure 22 and page 39) and later states that in 1993 (on a DOT list of approved sources) there are two mines in Cortland County approved for both fine and course aggregate and another one so approved after the DOT list was published. These three approved mines are Homer Materials, Homer, New York, Polkville Crushed Stone Company, Polkville, New York and Cortland Ready Mix at Truxton, New York. Applicant contends that the later-approved mine, Cortland Ready Mix, has so many problems extracting the aggregate it should be considered of minor importance only. (SEIS, Table 2, Pages 8-10)

At the hearing, Dr. Harrington said the Homer Materials Mine has been operating for 20 years (suggesting that it may be all but depleted), the Cortland Ready Mix Mine at Truxton produces sand only, and another Cortland Ready Mix mine between Rt. 81 and Rt. 11 is depleted.

The Intervenors rely on the DOT lists of approved sand and gravel sources (SEIS, Table 2, Page 9 and Exhibit 23). Staff relies on the same lists but staff witness Moskiewicz stated that in addition to 7 State approved sources of sand and 5 State approved sources of gravel within 35 miles (on Exhibit 23) there are 5 more State approved sand sources and 2 more approved gravel sources which although beyond 35 miles would be competing in the same market. These 7 sources are all in Oswego County and one of them is north of Oneida Lake.

Of the sources within 35 miles there is no information except from the applicant about depletion and one of these sources approved for both sand and gravel (W.F. Saunders and Sons Inc.) wrote to the applicant on October 16, 1989 stating that they learned that the applicant was developing a mining operation , that supplies are limited , that they use 70,000 tons of aggregate per year , that in the past they had to truck about 15,000 tons per year from sources in Syracuse to their Cortland and Ithaca plants, that if applicant s prices were competitive they could utilize the course aggregate and this would save 22,500 miles of trucking costs and result in an energy saving about 5,625 gallons of gas per year. As to fine aggregate they said applicant s mine would be an optional resource .

Another letter from Piscitell Stone and Supply Co., Inc. of Syracuse to the applicant dated October 16, 1989 states that quality material in the area is limited and that applicant s mine will provide a much needed addition to the construction materials market in Northern Cortland and Southern Onondaga Counties , that they could utilize the material (they purchased 52,000 tons of sand the previous year), saving 65,000 miles of trucking costs per year and over 16,275 gallons of gas per year.

Lastly, Economy Paving Co., Inc. of Cortland wrote to the applicant on November 27, 1989 stating that they construct highways and bridges in Northern Cortland and Southern Onondaga Counties, that they are frequently in need of vast quantities of sand, and that applicant s mine will result in shortened haul distances and benefit the State s highway reconstruction program.

While depletion of a mine is proprietary (secret) information nevertheless without depletion information, it is difficult to determine how real the competition is or how viable the other sources are. Indeed many of them may be nothing more than entries in the telephone yellow pages.

While this is speculation, other factors, such as at least one of the other sources proposing to become applicant s customer, provide a more tangible picture.

In this same vien, applicant s own confidence in the market as shown by the heavy investment made in moving the permit application forward (including counsel and expert fees) and funding the start- up costs (if the permit is issued) must be accorded some effect. This is especially true where the President and Board Chair of the applicant s (apparently one-man) corporation, Keith Hawkins, has had extensive business experience (farmer and farm store chain owner), including selling gravel from his farm; and he has been through a permit application (denied) that went to hearing concerning the 60 acre site immediately south of the subject site. There is no reason to believe this is a pie in the sky proposal, doomed to failure by being overwhelmed by the competition.

It is at least more likely than not that there is a substantive need for both sand and gravel within 35 miles of the subject site, and areas beyond should the applicant choose to serve them.

Balancing the Loss of Prime Agricultural Land Against the Need for Sand and Gravel

While no mitigation of the loss of approximately 14 acres of prime agricultural land has been proven, it is still appropriate to examine the loss. Certainly about 14 acres will be lost to crop production; yet, farms and farmland have decreased in the area by about 20% from 1984 to 1994, the Town of Preble and Cortland County Planners have approved a number of projects where the loss of some prime land was involved, and Amanda Barber stated that some prime land in the area has been even lying fallow.

There is no doubt that agricultural land, especially prime land, appeals to the aesthetic sense (see ECL 8-0103(1), ECL 8- 0105(6) and 6 NYCRR 617(2)(l)). Yet this site is not part of a long, rolling agricultural landscape; rather the entire 40 acres is bounded on the east by I-81 (which is raised up on an embankment), on the west by Route 281 (from which there is to be a 250 foot setback), on the north by Marybelle Road, and on the south by the 60 acre site.

On the other hand, this mine is expected to produce 2,000,000 cubic yards of aggregate over its 20 year life, or 100,000 cubic yards per year, average.

A local source of the aggregate will reduce transportation and fuel costs which, in turn, will benefit not only the environment, but the economy; and where as often the project served is a governmental one the taxpayers will benefit as well.

If W.F. Saunders & Sons is to be believed (that it trucks 15,000 tons of aggregate per year from Syracuse to its plants in Cortland and Ithaca) this strongly suggest that neither Homer Materials at Homer, Polkville Crushed Stone at Polkville, RMS Gravel at Freeville, Leubro Ready Mix at Locke, nor Cortland Ready Mix at Truxton are available sources of DOT approved sand or gravel, or at least even in combination they were not capable of satisfying the needs of one customer, W.F. Saunders & Sons.

It follows from this that the applicant would have little or no competition on the vast area from South Onondaga in the north to at least the Broome and Tioga County lines in the south. In fact this area might well be much larger since in the north are the W.F. Saunders & Sons sources in Skaneatlas, Marcellus and South Onondaga and, as noted, W.F. Saunders wants to do business with the applicant; and the record does not show whether or not there are any DOT approved sources to the south in Broome and Tioga Counties which are outside DOT s Region 3.

Even farmers and others in favor of preserving especially prime agricultural land also need well constructed and maintained roads, bridges, buildings and other structure. Without them it would be difficult for farmers to preserve and get to market their farm products (and this would create problems for the ultimate consumers of these products) or to accomplish their other business and personal purposes.

The State Environmental Quality Review Act ( SEQRA ) instructs that social, economic and environmental factors shall be considered together. ECL 8-0103(7) the Mined Land Reclamation Law encourages mining as well as agricultural and other uses along with it (ECL 23-2703(1) and the Agriculture and Markets Law has as its purpose to ...conserve, protect and encourage the development and improvement of...agricultural land for production of food and other agricultural products... (Section 300)

In the present case, however, the lack of sufficient DOT approved sources of sand and gravel has created a serious need for local sources of the aggregate. The loss of prime agricultural does not out-weigh the serious need of Central New York generally for the aggregate that will be extracted from this mine.

FINDINGS OF FACT

  1. The overall 40 acre site is located about in the middle of, and on the floor of the Cortland-Tully Valley.
  2. Of the overall 40 acre site approximately 10 acres have been lost to farming as a result of previous mining, for the construction of I-81.
  3. The 40 acre site presently contains approximately 18 acres of prime agricultural land.
  4. Approximately 14 acres of prime agricultural land will be consumed by mining.
  5. There is insufficient evidence of any mitigation of the loss of prime agricultural land.
  6. There are ample DOT projects presently and into the future to use the aggregate to be extracted from this mine.
  7. There are sufficient DOT projects within 35 miles of the site in need of the aggregate to be extracted from this mine.
  8. The mine will provide a local source of aggregate.
  9. The location of the mine within a 35 mile radius zone of many projects will reduce transportation and fuel costs, benefit the environment and reduce the costs of projects.
  10. Where the project served is one underwritten by taxpayers this mine will save taxpayer dollars.
  11. The quality of the aggregate on the site is as follows:
    1. Course aggregate passed all DOT tests;
    2. Fine aggregate did not pass all DOT tests and is not suitable for all uses, but proper processing may increase its usefulness.
  12. Even fine aggregate that cannot be processed to meet DOT standards will find some market.
  13. There are insufficient other sources of high quality aggregate in the local area and beyond.
  14. There is a substantial need for the aggregate to be extracted from this mine.
  15. Other areas, particularly in the Cortland-Tully Valley, where high quality aggregate might be extracted are extremely limited principally by the devotion of the land over it to inconsistent land uses.
  16. The Cortland-Tully Valley contains some of the highest quality aggregate anywhere in Central New York and it also contains some of the very best soils constituting some of the best prime agricultural land in Central New York.

CONCLUSION OF LAW

  1. On balance, the need for the aggregate to be extracted from this mine outweighs the loss of the prime agricultural land to be consumed in the mining process.

RECOMMENDATION

The Mined Land Reclamation Permit should be issued to Preble Aggregate, Inc.

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