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Shelby Crushed Stone Products, Inc - Hearing Report, February 10, 1997

Hearing Report, February 10, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the -

Application of SHELBY CRUSHED STONE PRODUCTS, INC. for transfer
of a Mined Land Reclamation Law permit previously issued to
MANITOU SAND AND GRAVEL CO., INC. for a mine in the Town of
Ogden, Monroe County

Project Application No. 8-2628-00008/00001

HEARING REPORT

By

__________/s/____________
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

Shelby Crushed Stone Products, Inc., of Medina, New York, has applied to the Department of Environmental Conservation ("DEC") for transfer of a Mined Land Reclamation Law permit previously issued to Manitou Sand & Gravel Co., Inc., for a mine east of Union Street, between Ogden Center Road and Brower Road, in the Town of Ogden, Monroe County. The application to transfer the permit from Manitou to Shelby also requests that the permit be modified to allow for the use of blasting as the primary means of consolidated rock extraction at the site. The application proposes no other operational changes to existing permitted activities at the Ogden pit.

On the evening of December 10, 1996, I held a legislative hearing on the application to transfer and modify the permit. The hearing was conducted at the Town of Ogden Community Center Building in Spencerport, New York, and was attended by more than 200 people. A DEC notice announcing the hearing was published in DEC's Environmental Notice Bulletin on November 13, 1996, and in The Suburban News, a weekly newspaper serving the affected area, on November 11, 1996. The hearing notice was also mailed to local officials and people who had previously commented on the application.

The legislative hearing was held pursuant to Section 621.7(a) of Title 6 of the New York Codes, Rules and Regulations [6 NYCRR 621.7(a)] given a determination by DEC's Region 8 Staff that the application had generated a significant degree of public interest. The hearing was held to receive oral and written comments on the application to transfer and modify the permit, as well on a draft modified permit prepared by DEC Staff which would authorize blasting subject to certain conditions. The application and draft permit were made available for public review prior to the hearing.

The hearing was held to gather comments for review by DEC Region 8 Staff, who will determine whether additional proceedings, including an issues conference pursuant to 6 NYCRR Part 624, are required, or whether a permitting decision can be made based on the application materials and the hearing record.

Appearing for the Applicant, Shelby Crushed Stone, Inc., was project manager Tim Lanager. Appearing for DEC's Region 8 Staff was John L. Cole, an environmental analyst with DEC's Division of Compliance Services.

The hearing record was held open until December 20, 1996, for the mailing of additional written comments. The record officially closed on January 30, 1997, with receipt of the hearing transcript by DEC's Office of Hearings and Mediation Services.

SUMMARY OF COMMENTS

Almost all of the comments received during and after the hearing addressed Shelby's proposal to use blasting as the primary means of consolidated rock extraction at the site. According to the permit prepared by DEC Staff, blasting would have to be conducted in accordance with special conditions mandating that:

  1. All blasts be monitored with a properly calibrated seismograph, with reports to DEC upon its request;
  2. Injury to persons and damage to public or private property be prevented outside the permit area; and
  3. Blast noise, ground vibration and peak particle velocity not exceed specified limits at the location of any dwelling, public building, school, church, or community or institutional building outside the permit area.

- - Position of the Applicant

The Applicant stresses the safety of blasting performed in accordance with the draft permit terms. The Applicant notes that it is responsible to comply with the permit conditions and that, if it fails to comply, the conditions are enforceable by DEC.

- - Position of DEC Staff

DEC Staff maintains that blasting will not result in any significant adverse environmental impacts. According to Staff, regulated blasting done in compliance with its draft permit conditions would not result in structural damage to buildings or residential water wells within the affected area. Staff indicates that the plan offered by the Applicant would limit blasting to the period between April and November each year, with an estimated three blasts per month. Noting a zoning dispute between the Applicant and the Town of Ogden, Staff said the dispute involved matters beyond DEC's jurisdiction; therefore, DEC would stay out of it.

- - Position of the Town of Ogden

Donald Walzer, Ogden town supervisor, indicated he was speaking on behalf of the town board and town residents. He said that while the Town did not oppose the permit transfer in and of itself, it was opposed to any permit modification that would allow blasting as a method of mining. He said that the blasting proposal raised significant issues which deserve review in a full adjudicatory hearing.

According to Mr. Walzer, Manitou Sand & Gravel made commitments to the Town that blasting would never take place at the site, and that Manitou would never be part of an application to DEC to include blasting in the mining permit. Mr. Walzer said the prohibition against blasting is embodied in several places: (1) the Town's zoning ordinance, which he said was amended with Manitou's cooperation and participation; (2) a settlement agreement resolving litigation between the Town and Manitou; and (3) restrictive covenants executed by Manitou and running with the land.

Mr. Walzer noted that the Town has an ordinance which regulates blasting for any purpose and requires a license to blast from the Town. He said that the Town had not received an application to blast and that the need for a town license had not been noted in the environmental assessment form for the DEC permit application.

According to Mr. Walzer, the Town denied Manitou a license to blast in the 1980's because a full environmental impact statement (EIS) prepared for the application found significant environmental impacts from blasting which could not be mitigated. Mr. Walzer said he could not understand how, pursuant to the State Environmental Quality Review Act (SEQRA), DEC could issue a negative declaration for a proposed activity which had previously been the subject of an EIS. Accordingly, he urged DEC to reconsider that declaration.

Mr. Walzer said that when the Town denied Manitou's application for a blasting license, Manitou commenced an unsuccessful Article 78 proceeding in State Supreme Court to challenge that determination. After that, he said, Manitou and the Town agreed on the following plan:

  1. The Town would entertain an application from Manitou to create a new zoning classification, defined as a special industrial district (or "SID"), and to rezone Manitou's property, which had been deemed residential; and
  2. Manitou, for itself and all successors and assigns, would abide by certain practices intended to prevent its mine from becoming a nuisance, and would never blast or even apply for a DEC blasting permit, promises that were embodied in a written agreement and a declaration of restrictive covenants.

For its part, Mr. Walzer said, the Town prepared a new EIS in connection with the proposed rezoning and examined blasting a second time, created the SID classification and rezoned Manitou's property. However, he added, Manitou has never obtained a required special use permit and has violated its agreement and covenants by participating in Shelby's application to DEC.

Mr. Walzer said that the Town is litigating with Manitou to enforce its zoning ordinance, the settlement agreement, and the restrictive covenants. If the DEC blasting application is not denied, Mr. Walzer said the Department should at least suspend application processing until the legal issues raised by the Town are resolved in the courts. Mr. Walzer also said that the covenants and agreements which he said already bind Manitou and its successor should be incorporated into DEC's draft permit, and that the issues related to those conditions, the right to use the land as proposed, and the credibility of the permit applicants should be explored in a full adjudicatory hearing.

Mr. Walzer said he was aware of DEC's policy not to become involved in local zoning disputes. But he said this application differs in four ways from the routine zoning dispute covered by DEC's policy:

  1. The site is subject to restrictive covenants which run with the land and limit its uses irrespective of zoning;
  2. Manitou has entered into a separate written agreement with the Town, such agreement covering this application;
  3. The environmental assessment form for this application misrepresents whether local approvals are required, ignoring both the zoning issues and the need for a local blasting license; and
  4. The operation of the mine and the use of blasting at the site have been the subject of two complete EIS's, neither of which are mentioned in the environmental assessment form.

In summary, Mr. Walzer urged DEC not to allow itself to be used in what he described as a "scheme" to circumvent Manitou's voluntary promises and covenants regarding the use of the property.

- - Statement of State Senator George D. Maziarz

State Senator George D. Maziarz read a statement on behalf of himself and State Assemblyman Charles H. Nesbitt. According to their statement, Maziarz and Nesbitt share the Town's concerns that blasting may cause property damage to more than 700 homes within a one-mile radius of the site, depressing property values and discouraging further growth in the area. Their statement also expresses concern that the pumping of wastewater from the pit could possibly disrupt wildlife in the community and contaminate local streams and residential wells.

Speaking for himself, Senator Maziarz said he was sure that many people had built homes close to the mining site in reliance on a promise by Manitou in 1988 that neither it nor any of its successors would ever apply for permission to blast there. In light of this residential development, he said that allowing blasting now would be "the wrong move in the wrong place at the wrong time."

- - Statement by Citizens to Save Ogden

Active since 1978, Citizens to Save Ogden is a group of resident property owners dedicated to preserving the Town's quality of life. The Citizens group is opposed to blasting at the mine site and presented a petition calling on DEC to reject both Shelby's application for the transfer of Manitou's permit and the permit's modification to allow blasting. The petition was signed by more than 600 people identified by the Citizens group as mostly taxpayers and residents living within a one-mile radius of the mine site.

According to the Citizens group president David A. Voke, the area within one mile of the mine includes more than 700 homes, a number of them predating the Civil War, as well as churches, a community center including a child day care facility and library, a public school, and a county water tower standing at the top of a sand hill. Also, he said, expanded residential developments have continued to be approved on properties immediately adjacent to the mine since the Town in 1991 began assuring residents and developers that blasting was banned in perpetuity. Voke said that there are 55 homes within less than a third of a mile from the north and south boundaries of the mine property.

Voke said the Citizens group feels that by giving a negative declaration to the blasting proposal, DEC ignored 12 years of documented evidence of problems with the existing mining operation, dozens of citizen complaint letters predating 1991, official minutes of previous DEC-sponsored public hearings, and previously filed EIS's. The Citizens group contends that the negative declaration could only have been reached based on an incomplete review by DEC Staff, which may have been caused in part by misleading or missing information in Shelby's application.

- - Summary of Other Public Comments

Most of the oral and written comments were against the permit modification to authorize blasting. A large number of comments were received from local residents living near the mine site. These residents expressed concern that blasting would diminish their property values; many said they had built or bought new homes in the area with the understanding that blasting was permanently prohibited.

Concerns were voiced about blasting noise, possible structural damage to houses, blowing dust and dirt, and blasting-related effects upon well water quality and quantity. According to James M. Spiegel, a local resident, there is a new home within 700 feet of the blasting area, impacts to which have not been considered because the Applicant's and DEC's blasting analyses rely on outdated 1990 information that the nearest home is 950 feet away. A professional engineer, Mr. Spiegel says this new home at 700 feet could expect significant structural damage according to a DEC formula used to project blasting impacts.

According to several speakers, blasting could increase heavy commercial truck traffic on neighboring roads, creating safety hazards for motorists and pedestrians. Others raised safety concerns about the transportation and storage of explosive materials close to homes, schools and community facilities. Finally, concerns were raised about the impacts blasting might have upon wildlife, including pheasant and turkey populations that nest near the site.

Some speakers said the mine operation in general constituted an attractive nuisance for children; others questioned the Applicant's ability to maintain the site properly in light of what they considered to be the poor outward appearance of its headquarters in Shelby, New York.

While greatly overshadowed by the comments in opposition to blasting, some blasting proponents did speak and submit letters. These proponents included some of the mine's customers and people affiliated with the existing operation. Proponents described blasting as a viable and safe means of extracting rock, especially under current processes controlled by engineers and implemented according to state regulations.

Proponents said blasting would make more crushed stone available at lower prices for customers. Answering criticisms of the existing operation, some speakers said Manitou was a reputable company that had tried to be a good neighbor. One speaker said that the mine goes back 45 years, and that residents who bought or built homes near it should have been aware of the operation when they did so.

CASE DISPOSITION

This case was referred to the Office of Hearings and Mediation Services with the understanding that the Administrative Law Judge's role was limited to conducting the hearing and summarizing the public comments. In light of that, this hearing report, the transcript of the legislative hearing, and the complete record of public comments are hereby transmitted to DEC's Region 8 Staff, who will determine what further proceedings are required.

Edward Buhrmaster
Administrative Law Judge

Albany, New York
February 10, 1997

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