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Sour Mountain Realty, Inc. - Interim Decision, July 18, 1996

Interim Decision, July 18, 1996

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Applications for permits to surface
mine rock and related activities
pursuant to the Environmental
Conservation Law (ECL) Articles 3,
8, 15, 17, 19 23 & 70 in Fishkill,
Dutchess County, by

SOUR MOUNTAIN REALTY, INC.

DEC Application No. 3-1330-47/6-0

INTERIM DECISION

July 18, 1996

INTERIM DECISION OF THE COMMISSIONER

This is an appeal to the Commissioner pursuant to 6 NYCRR 624.8(d) from Rulings on Issues and Party Status ("Rulings") of Administrative Law Judge ("ALJ") Francis W. Serbent, P.E., dated March 28, 1996 as clarified on April 17, 1996. Appeals from the Rulings have been received from Staff, Applicant, Scenic Hudson, et al, Victoria Nelson and Rose Oliveri, City of Beacon, Town of Fishkill, and the Builders Association of the Hudson Valley. Reply briefs were received on or about May 8, 1996.

Introduction and Background

Applicant, Sour Mountain Realty, Inc., seeks issuance of a Mined Land Reclamation Permit to construct and operate a rock quarry on a 250 acre site in the Town of Fishkill, Dutchess County. Applicant proposes to quarry gneiss from some 120 acres of the site at a projected rate of 350,000 tons per year, providing an estimated life-of-mine of 150 years. The proposed long term mining plan envisions eight phases of mining with reclamation of certain earlier phases concurrent with the implementation of certain later phases. The major elements of the project would include excavation, processing facilities, offices, a bridge, and storm water management facilities. The mined product would be used for aggregate in concrete blocks, and possibly for other building and construction purposes. The DEIS states that the aggregate would be useful as high-friction (non- skid) aggregate in the top coat of asphalt pavements because of its hardness and consequent long wearing properties, and that sand from the quarry materials could be used to increase the effectiveness of highway deicing measures, and to reduce the amount of salt needed for wintertime highway safety. The mine would provide local jobs, and be a base for tax revenues as well as provide a local supply of aggregate and sand for building materials, saving the cost of transporting comparable materials from more distant quarries.

However, construction and operation of the mine would also have environmental impacts, including the potential to cause visual impacts, noise, traffic, dust, hydrogeological effects, and other impacts, which give rise to concern among persons who live, own land, or have environmental concerns about the area. The hearing process is intended to assist the Commissioner in balancing these factors suitably, taking into account the requirements of both the Mined Land Reclamation Law ("MLRL") and the State Environmental Quality Review Act ("SEQRA").

A draft environmental impact statement ("DEIS") and mined land-use plan accompanies the complete application. The Department is the lead agency.

Two legislative-type public hearings were held on the application on September 27, 1995. Approximately 100 persons attended the hearings and 32 persons presented 40 oral statements, indicating widespread public interest and concern over the proposed project.

An issues conference commenced on September 29, and was reconvened five more times after various adjournments. The final conference was held on November 16, 1995. Following this period, the application and draft permit conditions were revised in late January 1996. The latest draft permit is dated February 6, 1996. The prospective parties submitted written comments on the February 26, 1996 draft permit, and the Applicant responded on March 26, 1996. The Rulings were made thereafter on March 28, 1996.

The Rulings

The ALJ's Rulings considered 30 separately identified issues. He concluded that one issue should be adjudicated: Whether the benches left in the hillside would be too narrow for tree growth and for compliance with 6 NYCRR .422.2(c)(3)(iii) (Issue #13). He rejected the others.

The first three of the ALJ's Rulings are more accurately characterized as requests for clarification. This Interim Decision will first address these three items, and then address the appeals from the other Rulings on adjudicatory issues proposed by the parties.

As to party status, the ALJ noted that Staff and Applicant are parties pursuant to the Department's hearing rules (6 NYCRR 624.5(a)). He granted party status to Scenic Hudson et al. ("Scenic Hudson") on the one issue he found to merit adjudication. He granted amicus status to the Builders Association of the Hudson Valley, Inc. ("Builders Association"). He denied party status to Ms. Rose Oliveri and Ms. Virginia Nelson ("Oliveri-Nelson"), who reside in homes near the proposed mine. He also denied party status to the Town of Fishkill and to the City of Beacon.

The seven sets of appellate papers filed raise objections to the ALJ's Issues Rulings as follows:

Rulings 1, 2, and 3

Staff, Applicant, Scenic Hudson, Builders Association

Rulings 4, 6, 8, 10, 11, and 13

Scenic Hudson

Rulings 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28

Oliveri-Nelson

Rulings 29 and 30

City of Beacon

Oliveri-Nelson, City of Beacon, and the Town of Fishkill each appeal from the ALJ's decision to deny them party status; they also appeal from those parts of the Rulings that declined to adjudicate issues of concern to them.

This Interim Decision will address the various matters under appeal in the following order: (1) The clarification questions - Rulings 1, 2 and 3; (2) Visual impact of the proposed quarry; (3) Noise; (4) Traffic; (5) Other Scenic Hudson issues appealed from; (6) Other Oliveri-Nelson issues appealed from; (7) City of Beacon issues; and (8) Party Status Rulings.

Summary

In summary, I conclude that there are substantive and significant issues for adjudication on visual impact and noise, as discussed further below. I am granting party status to Scenic Hudson, Oliveri-Nelson and the Town of Fishkill on these issues. The Builder's Association was granted amicus status by the ALJ and I will not disturb that Ruling. Also, I concur that the City of Beacon has not raised substantive and significant issues, and that the City's petition for party status should be denied.

I. Rulings 1, 2 and 3

The ALJ's Rulings 1, 2 and 3 are as follows:

"RULING #1, MLRL PERMIT AREA: The ALJ requests the parties to develop the record to display the authority and justification of the proposed expanded areal jurisdiction of these Special Conditions under the MLRL permit area criteria for affected land and for compliance with General Condition #7.

RULING #2, MLRL PERMIT TERM: The ALJ requests the Parties to develop the record to display the authorization and justification of Special Conditions that impact mining beyond the five year term of this, the initial, permit.

RULING #3, NOISE: The ALJ requests the Parties to develop the record to display the authorization and justification of the departure from 6 NYCRR 422.2 with more restrictive noise standards as Special Conditions."

The ALJ's subsequent Memorandum of April 17, 1996 clarified that these three Rulings did not specify factual issues for adjudication. Instead, these Rulings asked counsel to explain the legal basis for permit conditions which would essentially:

  1. require the permittee to maintain tree plantings along Route 9 on lands which it owns, but which are outside of the area to be disturbed by mining during the term of the permit (Ruling #1).
  2. impose certain restrictions applicable to Phases 2, 5, and 8 of the mining plan, even though the five year term of the initial permit will expire long before mining commences in Phases 2, 5, or 8 (Ruling #2); and,
  3. impose limitations on noise emissions based on factors not expressly specified in the Part 422 regulations under the MLRL, applicable to muffling of noise from mining equipment (See .422.2(c)(4)(i)), and which, in part would require noise monitoring on certain lands not owned by the Applicant (Ruling #3).

The briefs of the parties in this appeal respond to these three Rulings, and fulfill the requests of Rulings #1, 2 and 3 for clarification.

Background of Rulings 1, 2 and 3

Rulings 1, 2 and 3 relate to the revised draft special permit conditions dated February 6, 1996. These special conditions were the product of discussions among Staff, Applicant and Intervenors following the issues conference in order to develop permit conditions which would mitigate adverse environmental impacts while allowing mining to take place. The February 6, 1996 draft special conditions incorporate submissions made by Applicant on January 30, 1996 including a:

  1. Revised Visual Impact Assessment;
  2. Revised Bench Reclamation Plans and variance requests; and,
  3. Noise Management and Compliance Plan.
Ruling 1

To seek to minimize both noise and visual impact, Applicant and Staff agreed that trees would be planted along Route 9, on the mine site property, but not within the "affected area" as that term is interpreted by the ALJ. The ALJ questioned whether this type of impact mitigation buffer could lawfully be imposed on land outside of the affected area. In this case, the Applicant is willing to be bound by special conditions which impose these environmental impact mitigation measures.

The MLRL and SEQRA each allow Staff to impose visual and noise buffer requirements in mining permits. Contrary to the ALJ's Memorandum #5 at p. 3, there is no jurisdictional inhibition in the MLRL that limits the location or placement of buffers or which restricts the locations from which noise measurements can be made. The MLRL and related rules provide that a case-by-case, common sense determination needs to be made at each proposed mine site on how to minimize noise and visual impacts. There is no basis for restricting the placement of buffers to the land which is to be disturbed by mining (i.e.: designated as "affected land" or "affected area"). The MLRL and SEQRA do not prohibit buffers from being placed on any lands of the permittee, especially where, as in this case, the permittee expressly consents to the placement of the buffers at the location proposed. (MLRL .23-2713(1)(a)). Nor do the MLRL or SEQRA prohibit placement of buffers, or taking of noise measurements, on lands owned by third parties, subject to consent of the owner. This clarifies Ruling 1.

Ruling 2

In Ruling #2 the ALJ asked for an explanation of the basis for special conditions that impact mining beyond the five year term of the initial permit. The ALJ noted that in Phase I Applicant's mining plan, rock would be quarried from a part of the site between elevations 240 and 360. Upon completion of Phase I, Phase II of the mining plan envisions removing rock at a different location on the site, between elevations 560 and 680. Eight mining phases are planned over the projected 150 year mining schedule. Condition 22 specifies that Phases 5-8 shall not commence until the reclamation plan is implemented for Phases 2 and 3. Presumably, each phase would require more than one or two five year permit terms to complete.

In Ruling #2 the ALJ stated that permit renewals would be limited to mining in Phase I, and that mining of subsequent phases would require a new permit application, including SEQRA review. He indicated that segmented SEQRA review between each phase of the mining plan would be reasonable under the circumstances of this case. However, no party proposed that there should be segmented SEQRA review, and a segmented SEQRA review is inappropriate. The Department's life of the mine review policy should be followed.

The life of the mine policy reconciles evaluation of the long-term mining plan and its environmental impacts under SEQRA and the MLRL with the five year permit term limit under 23-2711.2 of the MLRL. The MLRL, 23-2713, specifies that all mining and reclamation activities at a mine site are to be carried out in accordance with a mined land-use plan. Also, 421.1(c) of the regulations provides that "[a]ll permits shall be conditioned upon compliance with an approved mined land-use plan." The plan is to include plans for both mining and reclamation of the mined land. The plan is to describe not only the "boundaries of the land controlled by the applicant" and the "outline of potential affected acreage [i.e., to be disturbed by mining], but also "the general sequence of areas to be mined through successive permit terms." (MLRL 23-2713.1(a)). The objective is to take measures to "minimize adverse environmental impacts resulting from the mining operation." (id). The evaluation and implementation of these measures is to consider and incorporate environmental impact mitigation during the overall proposed "life of the mine."

The MLRL, as well as SEQRA, authorize, where appropriate, permit conditions affecting activities beyond the initial permit term. The Department reconciles the limited permit term with the mandate to take measures to protect the environment over the entire planned period of mining activity with a "life of mine" evaluation and implementation policy and periodic permit renewal. The MLRL provides at .23-2711.11 that permits shall be renewable. In the event circumstances change as implementation of the mining plan progresses through the years, the permit can be modified, either on renewal, or at any time.

In Ruling #2, the ALJ asserted that commencing a new phase of the eight phase mining plan would initiate a material change in the permit conditions and the scope of the permitted activities. That assertion, made sua sponte, was neither appropriate nor accurate. The SEQRA review with Applicant's initial permit application in this case takes the life of the mine land-use plan into account, including its proposed eight phases. The "mine" includes all lands included in the life of the mine review (See 6 NYCRR 420.1(h)). An initial permit, if issued, and later permit renewals must be conditioned upon compliance with the mined land-use plan as approved (6 NYCRR 421.1(c), discussed supra). For SEQRA purposes, the "action" in this initial permit proceeding is approval of the overall mined land-use plan. Permit renewals involving subsequent phases of the mining plan, to the extent they do not deviate materially from the approved plan, would be Type II actions. Any material changes not previously considered under SEQRA will require SEQRA analysis and determinations of significance or non-significance, based on the applicable facts. It was incorrect for the ALJ to find that initiation of each new phase would trigger an application for a new permit with consequent segmentation of the SEQRA review, as opposed to a renewal.

Neither Staff nor Applicant (or any other party) seeks to segment review of the mining permit renewals, and they urge, correctly, that such segmentation would be improper.

Further, Staff's proposed draft permit Condition 22 imposes reclamation requirements in future permit terms within the Department's authority under the MLRL and SEQRA. While implementation of such requirements could presumably be modified in future permit renewals (after notice and opportunity for hearing), they have a present purpose in putting the Applicant, parties, and the public on notice of the Department's present intent as to how the future development and reclamation of the mine should evolve. Both the MLRL and SEQRA authorize this type of condition. The foregoing clarifies Ruling #2.

Ruling 3

Ruling 3 questions the Department's authority under the Part 422 MLRL regulations to impose numerical noise emissions limitations at the site boundary or at offsite location. The mining regulations at .422.2(c)(4)(i) specify use of equipment which is adequately muffled to prevent excessive noise and vibration. The MLRL rules do not impose numerical noise emission limits and do not specify how much noise would excessive at property lines or at offsite locations. The draft permit's Special Condition 19 requires the permittee to implement its Noise Management and Comprehensive Plan, which includes numerical noise standards at specified trails on abutting land and at permittee's property boundary, as well as noise control measures, and testing, monitoring and reporting requirements. Precedent and SEQRA both allow Staff to impose noise abatement measurement requirements as proposed in Condition 19. Noise abatement measures need to be designed to reasonably fit the circumstances at particular sites. While the Applicant proposes that its equipment would have mufflers to meet the regulatory criteria of 422.2 et seq., the Staff and Applicant have attempted to develop a rational noise management and compliance plan for the proposed project to minimize offsite noise to the maximum extent practicable. There is ample statutory authority in SEQRA to empower Staff to establish the noise management abatement and compliance conditions that are specified in the draft permit in order to meet the objective of minimizing noise at neighboring properties. This clarifies Ruling #3.

Conclusion as to Rulings 1, 2 and 3

Accordingly, the points raised by Rulings 1, 2 and 3 have been addressed. They do not require adjudication in this proceeding.

II. Visual Impact Mitigation and Noise

Scenic Hudson and Oliveri-Nelson have submitted offers of proof on whether the Applicant's visual impact mitigation and noise abatement plans in fact eliminate or minimize adverse aesthetic and noise impacts to the maximum practicable extent under SEQRA. These points are addressed below.

As noted above, the Applicant revised its mining plan in January, 1996. Those revisions addressed measures designed to minimize adverse visual impacts as well as noise and dust. Included with its January filing was a revised setback variance request. That request seeks approval of a variance to use narrower quarry benches which would allow increased setback mining activities from the abutting lands while seeking to authorize as much minable rock to be excavated as possible.

Visual Impact Mitigation

Following receipt of the revised mining plan, Staff revised the draft permit conditions and made them available on or about February 6, 1996. The revised draft special conditions incorporate revised reclamation plans (Conditions 20, 21 and 22) and buffer requirements (Conditions 24 and 25), which collectively seek to respond to and address concerns about the project's visual appearance as perceived by observers from adjacent highways and properties.

Scenic Hudson objected to the proposed new visual impact mitigation measures in its Supplemental Petition for Party Status, dated March 7, 1996. Scenic Hudson contended that the visual impacts were not minimized to the maximum extent practicable, and challenged the adequacy of Applicant's visual impact assessment. Scenic Hudson proposed that:

  1. the maximum height of the area to be quarried should be reduced;
  2. rock staining should be required to camouflage quarry faces;
  3. additional plantings should be placed near the proposed access road on Route 9; and,
  4. the reclamation plan should be revised.

Scenic Hudson offered an updated visual impact report by its visual impact witness, and a report of a witness on zoning and land use character of the area. Scenic Hudson also offered witnesses to show that a reduced height of mining and changes to the mining plan as it advocates would be economically feasible. It also offered witnesses on economic feasibility, on rock staining technology, and on the reclamation plan.

The ALJ's Rulings note that the mine could not be completely hidden from view. He held that "compliance with the environmental standards of 6 NYCRR 422.2 represents the minimized adverse environmental impact to the maximum extent practicable" (See Ruling #4). He concluded that the Applicant had addressed the visual impact measures (i.e., screening) set forth in the regulations, and he declined to adjudicate any visual impact issues proposed by Scenic Hudson, except for adjudication of the sub-issue of whether the proposed revised setback plan provided for quarry bench widths which are too narrow to allow for tree growth (see Ruling #13).

On appeal, I conclude that the ALJ's Rulings on visual impact, including Rulings #4, 10 and 13 (as to visual impacts) are erroneous. Merely addressing the necessarily qualitative and judgmental aesthetic provisions of .422.2 (i.e., screening may consist of natural or artificial barriers) does not evaluate the relative effectiveness of alternative proposals to mitigate visual impacts. I conclude that Scenic Hudson has raised a substantive and significant issue on visual impact. Scenic Hudson's proposed issues are substantive and significant, because, if proven, they could require significant modifications or denial of the permit. There should be an adjudicatory hearing on the following issue on visual impact:

Whether the adverse visual effect of the proposed quarry when viewed from Routes 9 and I-84 or from other adjacent lands should be mitigated beyond that proposed by the February 6, 1996 draft permit conditions, and, if so, how.

Evidence and argument on this issue may include the visual and related economic effects of reducing the proposed maximum mine elevation, rock staining, the Route 9 buffer, the reclamation plan (including bench width) and related visual impact factors. These factors, and alternative mitigation proposals should be considered in light of their reasonableness and need for the project, giving consideration to the policy of the MLRL to foster mining. The final determination will necessarily involve an aesthetic judgment. Such a judgment needs to be based on the relevant facts, and the record needs to incorporate the parties' evidence on visual impact before the final determination is made.

However, given that visual impacts will be fully considered at the adjudicatory hearing, there is no basis for independently adjudicating whether the Applicant's initial visual assessment in the DEIS was adequate, as Scenic Hudson proposes in its Supplemental Petition for Party Status.

Oliveri-Nelson also express concern over the visual impact of the mine and offer witnesses to testify on the visual impact issue. Their proposed evidence on visual impact should also be heard and evaluated consistent with the above discussion.

Noise

Scenic Hudson's Supplemental Petition for Party Status challenges Applicant's noise management and compliance plan. Scenic Hudson claims that the proposed maximum noise levels at the property line and on Scenic Hudson Land Trust's hiking trails "significantly exceed" the existing ambient levels and are capable of further mitigation. They offer witnesses to testify on this and related noise issues (Supplemental Petition, p. 12- 14). Oliveri-Nelson voice similar concerns and offer proof to support their position on noise.

The ALJ concluded at p. 7 of the Rulings that "the mining plan required by 6 NYCRR 422.2 describes noise control by screening and adequately muffled equipment to prevent excessive noise and vibration. There is no dispute that the application complies with these standards." (See also Rulings at p. 5). The ALJ concluded that the noise control provisions of 422.2(c)(4)(i) were fulfilled, and that there is no basis for imposing more stringent numerical noise emission limits. I disagree.

The noise control provisions of 422.2(c)(4)(i) are descriptive and qualitative. They are neither specific nor absolute. Here, proposed intervenors have made offers of proof to attempt to show that the muffling will not be "adequate," and that the noise will be "excessive." They bolster their claims with SEQRA's mandate that noise controls should minimize noise impacts to the maximum extent practicable, taking applicable social, economic and other relevant considerations into account. The intervenors have made offers of proof on noise control which justifies further inquiry, and which, if accepted, could be the basis for modification of the proposed permit conditions.

The offers of proof raise the question whether the noise controls are "adequate," whether the noise will be "excessive," and whether it will be "minimized" or "avoided."

Contrary to the ALJ's Rulings, there is a dispute whether 422.2(c)(i)'s requirements have been fulfilled. Moreover, SEQRA's mandate to minimize or avoid noise impacts is also applicable here. I disagree with the ALJ's interpretation that SEQRA cannot be used to fashion numerical noise limits, or to apply limits which are "more restrictive" than those of 422.2(c)(i). Under the circumstances of this case, it may not even necessary to decide whether SEQRA is being applied more restrictively than 422.2, but I see no reason why SEQRA could not be applied in a more restrictive fashion than .422.2(c)(4)(i) in appropriate cases.

The record should be developed to examine the noise levels anticipated at the property line and at sensitive off-site receptors, along with alternative mitigation measures. Based on that record, a determination will need to be made whether the anticipated frequency and degree of noise is excessive. Consideration can be given to the noise limits for landfills in 6 NYCRR 360-1.14(p) and other standards applicable to noise emissions from comparable operations as a basis for judgment.

I conclude that the adequacy of Applicant's noise management and compliance plan and Condition 19 of the draft permit is an appropriate issue for adjudication. In so doing, I am making no judgment at this time as to the noise plan's adequacy. The plan may well be adequate. For present purposes, I conclude only that a substantive and significant noise issue has been raised, and should be adjudicated.

Traffic

Scenic Hudson proposes that adverse traffic impacts should be an issue for adjudication. Scenic Hudson offered a witness to testify that these are not sufficient gaps in traffic on Route 9 at the mine site for the trucks to safely pull out, and that the Applicant did not properly take estimated traffic increases into account.

The ALJ, in Ruling 8, declined to adjudicate this issue. I agree that no substantive and significant issue has been raised. That is, no basis has been shown for denying or significantly modifying the permit because of the likelihood that slow moving trucks would create a traffic hazard on Route 9. Traffic impacts were considered adequately in the DEIS. Another quarry exists on the East side of Route 9 in the immediate vicinity. Local authorities can deal as appropriate with these traffic control measures.

No adjudicable issue has been raised.

Other Scenic Hudson Issues

Scenic Hudson also appeals from other Rulings of the ALJ, I conclude as follows:

  1. Compatibility with local land use plans - Scenic Hudson appeals from that part of Ruling #4 which declines to adjudicate whether Applicant's proposal is compatible with local land use master plans and existing land use character. However, the proposed site is zoned industrial, and there are two existing quarries already operating in the area. Scenic Hudson's compatibility argument is actually a variant of its visual impact argument. This is not an adjudicable issue, except to the extent that it overlaps the visual impact issue discussed above.
  2. Need for a supplemental EIS - Scenic Hudson appeals from so much of page 6 of the rulings as declines to preparation of a supplemental environmental impact statement ("SEIS") to consider the changes to the Project to be made as a result of the revised draft permit conditions. No adjudicable issue is raised, the ALJ's Ruling on this point is affirmed. The project changes were proposed in an effort to minimize adverse environmental impacts in response to concern of intervenors, Scenic Hudson in particular. Scenic Hudson is being granted the opportunity to adjudicate whether these changes appropriately minimize adverse impacts. The proposed changes do not require an SEIS to be prepared.
  3. Segmentation of the DEIS as related to Fishkill rezoning - Scenic Hudson appeals from the ALJ's Ruling #9. In that Ruling, the ALJ rejected Scenic Hudson's claim that DEC's DEIS for the project failed to consider all potential impacts resulting from the Town's decision to rezone the site area as industrial use. Such failure, argues Scenic Hudson, is improper "segmentation". But that argument is incorrect. Fishkill's rezoning was a separate and independent "action" under SEQRA, as related to DEC's permitting action.
  4. Whether alternatives were properly addressed - Scenic Hudson appeals the ALJ's Ruling #10, by which the ALJ declined to adjudicate whether an appropriate range of alternatives was addressed. This appears to be another variant of the visual impact issue, as Scenic Hudson urges (brief, p. 53) that the "most important...alternative is one which limits mining to 400' asl", presumably to lessen what it considers to be an unacceptable visual impact. While alternative measures to minimize visual impacts will be an issue as discussed above, there is no basis to adjudicate whether the range of alternatives considered in the DEIS could or should have been different. Such an issue would not be either substantive or significant.
  5. Need for the project - Scenic Hudson appeals from the ALJ's Ruling #11 which declined to adjudicate public benefit and need for the project. The question of "need," of itself, is not an adjudicable issue. However, need is a factor in weighing the impact of unmitigatable adverse environmental impacts against economic, social, and other essential considerations. Thus, when considering the visual impact and noise issues, it is appropriate to compare impact mitigation alternatives with their relative economic impacts. In that sense, need is a component of the visual impact and noise mitigation issues, but need is not a "stand-alone" issue for adjudication.

I conclude that the above items a) through e) are not independent adjudicable issues. However, the question of compatibility, alternatives, and need, to the extent that they relate to visual or noise impacts, can be addressed as parts of those issues. This is not to pre-judge those issues, nor is this to be taken as inferring that the fact that an exposed quarry wall will become visible from adjacent areas is, per se, an unacceptable visual impact. Exposed rock faces appear naturally in some locations, and are accepted as the result of human activity in others. Highway construction is an example, in addition to quarries. At this point, I conclude only that the record needs to be developed on the visual impact and noise issues.

III. Other Oliveri-Nelson Issues

Under the heading of "Other Oliveri-Nelson Issues," I will deal with Oliveri-Nelson's appeals from the ALJ's Rulings #17-- (a) Hydrogeology; #18--(b) Wildlife; #21--(c) Air Pollution; #22--(d) Zoning and Land Use; #23--(e) Special Conditions; #25--(f) 500 Foot Buffer; #26--(g) Stormwater Facilities; #27-- (h) Blasting; and #19, 20, 24 and 28--(i) Noise, Visual Impacts, Setbacks, and Reclamation.

  1. Hydrogeology - In Ruling #17, the ALJ denied Oliveri- Nelson's proposal that a substantive and significant hydrogeology issue exists. Oliveri-Nelson's consultants assert that the quarry's daily water needs will not be able to be supplied during drought periods from the Applicant's proposed well to be placed in the bedrock. Therefore, it is argued that the Town of Fishkill's nearby groundwater supply will be adversely affected. However, the DEIS did address the impact of development of the proposed quarry on the ground waters of the area. A study for the Town of Fishkill by independent reputable hydrogeological experts concluded that the project would have minimal impact on the water resources of the area, including the Town's supply wells. Contravening evidence offered on behalf of Oliveri-Nelson essentially urges that further study is necessary. I concur with the ALJ that no adjudicable issue is raised.
  2. Wildlife - In Ruling #18, the ALJ rejected Oliveri- Nelson's proposal to adjudicate the impact of the quarrying operation on the habitat of timber rattlesnake, a threatened species. I concur that no substantive and significant issue for adjudication has been raised. The DEIS has considered the issue. The draft permit conditions include measures to (so-called snake fencing) to keep snakes, including timber rattlesnakes, out of the area. There is no substantive suggestion that existing dens would be affected, or that the quarrying operation would adversely affect or limit the habitat of the timber rattlesnake.
  3. Air Pollution - Oliveri-Nelson appeal the ALJ's Ruling #21, which declined to find that an adjudicable issue exists with respect to air pollution impacts from operation of the project. The principal source of air pollution is dust; vehicle exhaust is also mentioned. Dust suppression is addressed in Special Conditions #16 and 20 of the draft permit. Emissions from diesel engines are regulated pursuant to applicable engine exhaust emission rules. I conclude that there is no need to inquire further as to Applicant's ability to control dust and other potential air pollutant emissions appropriately. I concur that no adjudicable issue is raised.
  4. Zoning/Land-Use - No issue is raised as to Oliveri- Nelson's appeal from the ALJ's Ruling #22. See discussions above on compatibility with local land-use plans.
  5. Draft Special Condition 2 - Oliveri-Nelson appeal from the ALJ's Ruling #23. That Ruling declined to adjudicate Oliveri-Nelson's proposed issue with respect to Special Condition 2 of the draft permit. That condition states that:

    "Prior to or as part of the FEIS, the permittee shall submit four (4) copies of...(A) Final plans identifying all construction and mining proposed in Phase I...[and] a narrative which identifies the timing and sequence of proposed improvements. (B) Final plant area layout. (C) Final Erosion Control and Stormwater Management Plan and Report for all Phase I facilities...[including ...details of the temporary drainage circuit above Phase I and receiving detention basins. (D) Any other plan revisions which may result from the hearing process and rulings."

    The ALJ's Rulings at p. 2 refers to Special Condition 2, and notes that it would require submissions of final plans "prior to or as part of the Final EIS." However, he points out that according to Departmental practice the final decision of the Commissioner, assuming that a permit is to be issued, together with the hearing report, comments on the DEIS, the DEIS, and mined land-use plan would be issued as the FEIS (Rulings, p. 2), subject to a ten day comment period (See 6 NYCRR 617.11(a)). Thus it would not be possible for the final plans to be prepared and submitted prior to or concurrently with the FEIS, because the Commissioner's Final Decision would not be known prior to its issuance. Draft Special Condition 2 will need to be revised.

    Oliveri-Nelson contend that a) a complete mining plan has not yet been submitted, and b) it is not acceptable "for the approved mining permit to require...submission of final plans after project approval." (Oliveri-Nelson brief at p. 17).

    It appears that Applicant submitted a mined land-use plan (i.e., a mining plan and reclamation plan) with its original application. These original plans have undergone revisions and including a bench reclamation plan, variance request, noise management plan, stormwater management plan and other items. Further revisions are possible either at the Applicant's behest, or as a result of the adjudicatory hearing and final decision of the Commissioner.

    Oliveri-Nelson is concerned that a "complete" mined land-use plan has not been submitted. In fact, the DEIS may serve that purpose (See ECL 23-2713(c)) and that appears to be the case with respect to this application. However, for purposes of future permit administration, there is merit to the suggestion that the various elements of the application which constitute the mined land-use plan should be compiled into a single document which identifies Applicant's current notion as to the contents of its mined land-use plan (meaning both its mining plan and its reclamation plan) with related maps and other documents (See ECL 23-2711, and 6 NYCRR 420.1(a)(i)). This document would also include the noise management plan, stormwater plan, and related information as to its planned mining and reclamation activities. Upon being submitted for the record, this mined land-use plan document, together with the DEIS, comments and responses, the ALJ's hearing report, and final decision of the Commissioner would constitute the FEIS in the event that it is determined that a permit is to be issued.

    The mined land-use plan document may need to be revised and updated to conform to the final design and reclamation plan, depending on the Commissioner's final decision in this case. The updated document would need to be conformed to the Commissioner's decision and filed with the Department prior to permit issuance. Such filing would take place following issuance of a final decision and FEIS for the project. The updated mined land-use plan would become part of the permit, and be used in monitoring compliance and for permit administration thereafter.

    The foregoing clarifies that draft Special Condition 2, as written is procedurally flawed. It will need to be revised. However, no issue for adjudication has been raised as to that condition.

  6. 500 Foot Buffer - Oliveri-Nelson appeal from the ALJ's Ruling #25, which declined to adjudicate Oliver-Nelson's proposal for a 500 foot buffer and fence. The appeal on this issue is denied for the reasons given by the ALJ.
  7. Stormwater Management - Oliveri-Nelson have not raised a substantive or significant issue on stormwater management. The stormwater management plan issue proposed by Oliveri-Nelson's consultant, periodic inspection, is merely an element of stormwater management practice. Further inquiry is not needed on this issue. The outcome of a hearing would not affect permit issuance or denial, or permit terms. Special Condition #10 addresses the point raised. The ALJ's Ruling #26 is affirmed.
  8. Blasting - Oliveri-Nelson propose that special conditions on blasting be added to the existing permit requirement that the blaster be licensed by the State Department of Labor and maintain and make available blasting records. I conclude that Oliveri-Nelson have not raised a substantive and significant issue on this point, and deny their appeal from Ruling #27 on the blasting issue.
  9. Noise, Visual Impacts, Setbacks, and Reclamation - The ALJ's Rulings #19, 20, 24, and 28, relate to noise (Ruling #19) visual impacts (Ruling #20) setbacks (Ruling #24) and reclamation (Ruling #28). Having found above that these issues are substantive and significant, Oliveri-Nelson's appeals on these issues are granted, subject to the above statement that there is no basis for independently adjudicating whether the Applicant's initial visual assessment in the DEIS was adequate.

IV. City of Beacon Issues

The City of Beacon appeals from the ALJ's Rulings #29 and 30, which declined to adjudicate whether trucks crossing over a 10 inch water main four feet below the entrance, exit-road of the proposed mine would cause damage to the City's main. Also the City is concerned about the project's impact on the nearby well field nearby, from which the City obtains a water supply. The well field is operated by the Town of Fishkill, as noted above.

The City's offer of proof on these issues lacks substance, consisting as it does of unsupported assertions. Given that trucks routinely cross over underground water mains, and that the City has made no substantive offer explaining why or how its water main would be jeopardized in this case, there is no reason to inquire further on that point. The permittee will need to take appropriate engineering measures to protect the City's water main (See General Condition #6). I see no basis for concluding that the facts of this case are so unique that appropriate protective engineering measures could not be taken. Also the City's concerns about impacts on the nearby well field and for a water supply is neither substantive nor significant. See discussion above under hydrogeology.

V. Party Status

In light of the foregoing, party status is granted to Scenic Hudson and Oliveri-Nelson on all issues to be adjudicated. I am also granting part status on all issues to the Town of Fishkill, because the project is located within the Town, and its interest in the project. The City of Beacon is denied party status. The Builder's Association is granted amicus status, as per the ALJ's Rulings.

CONCLUSION

This matter is remanded to ALJ Serbent for further proceedings consistent with this decision.

For the New York State Department
of Environmental Conservation
/s/
By: Michael D. Zagata, Commissioner

Albany, New York
July 18, 1996

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