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Sour Mountain Realty, Inc. - Issues Ruling, April 17, 1996

Issues Ruling, April 17, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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, (Appl. #3-1330-47/6-0) by

MEMORANDUM 5
RULINGS on
ISSUES and PARTY STATUS

Sour Mountain Realty, Inc.,
29 Elm Street
Fishkill, NY 12524

Applicant

The Draft Permit Chronology

At the legislative hearing for the taking of public statements on September 27, 1995, the Department Staff distributed its draft permits for mining rock off the easterly face of Bald Hill in the area known as Sour Mountain. At the prehearing issues conference on September 29, 1995, among other things, the Applicant sought an adjournment to consider the draft permits and to discuss them with the Staff.

The prehearing issues conference resumed on October 19, 1995 when the Staff distributed another (second) draft mining permit revising the September 27, 1995 draft. Again, an adjournment was sought and granted, without audible protest, to review the second draft permit until the next day, October 20, 1995, when the prospective parties concluded the presentations of their proposed issues exclusively on the MLRL draft permit.

However, for the record, the Applicant's responses to the proposed issues were heard at conferences held on October 30, 31 and November 16, 1995.

On October 30, 1995, the Applicant also presented revisions to its application and Staff distributed revised draft permits then and again on November 16, 1995. Meanwhile, the Applicant and Staff continued negotiations regarding the issues and consequently on December 7, 1995 the Applicant moved for an adjournment of the issues conference pending the outcome of the negotiations.

On February 9, 1996, the Applicant distributed its revisions to the application along with a copy of the draft permit dated February 6, 1996. There were no permit revisions to the proposed mining operations but the draft permit was revised otherwise. Revised filings of proposed issues were received as scheduled on or before March 8, 1996.

The application:

The application before us:

  • is for a mining permit with a five year term, the maximum term pursuant to ECL 23-2711.2,
  • is for phase one (I) of an eight (VIII) phase mining plan,
  • contains a mined land-use plan per ECL 23-2711.2,

    [The mined land-use plan includes a mining plan and a reclamation plan for actions of the eight phases covering the originally estimated 150 year mine life per ECL 23-2713.1] and

  • includes an accepted draft environmental impact statement ("EIS") of the actions as defined at ECL 8-0105.4.

Mine Permits and SEQR

We must consider the entire duration and scope of mining as required both by the ECL Article 23 Title 27, the Mined Land Reclamation Law ("MLRL") and by the ECL Article 8, the Environmental Quality Review Law ("SEQR"). The application is for a mining permit that is limited to a five year duration and is one step in the "action" considered under SEQR. Actions are described at Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") 617.3(k):

"Actions commonly consist of a set of activities or steps (e.g., for capital projects the activities may include planning, design contracting, demolition, construction and operation). The entire set of activities or steps shall be considered the action, whether the agency decisionmaking relates to the action as a whole or to any part of it."

For the instant permit application for a five year term, the general SEQR rules at 6 NYCRR 617.3(c) state "Nothing in this Part shall prevent an agency from ... engaging in review of any part of an application to determine compliance with technical requirements ...". Accordingly, we may process this permit application under SEQR as a discrete segment within the EIS.

Pursuant to 6 NYCRR 624.13, the final decision of the Commissioner will be issued and the hearing report of this proceeding together with the draft EIS will constitute the final EIS. Special condition 2 of the draft permit requires the submission of final plans as part of the final EIS and would therefor not reflect any modifications or permit conditions or other contingencies as may be ordered or adopted by the Commissioner. It is RECOMMENDED that special condition 2 be revised for a reasonable time after the issuance of the decision for the submission of the detailed final plans.

PROPOSED ISSUES

Scope of the draft permit. The Department's jurisdiction for this quarry is defined in the Mined Land Reclamation Law and Parts 420 et seq. of the rules and regulations. Pursuant to 6 NYCRR 420.1(n),permit area means all "affected land" and pursuant to 6 NYCRR 420.1(a),affected land and land affected by mining means the land that is to be disturbed by mining during the term of the permit to mine. The mining plan is required by 6 NYCRR 422.1(a) to describe graphically and in writing the affected land. The importance of this jurisdictional definition is recognized in 6 NYCRR 617.3(b) where it states that "SEQR does not change the existing jurisdiction of agencies ..."

However, the draft permit contains special conditions that impose restrictions to land beyond theaffected land of thepermit area as defined by regulation. Certain of these special conditions would also conflict with draft permit General Condition #7 that states in part "This permit does not convey to the permittee any right to trespass upon the lands ... of others in order to perform the permitted work ..." Therefore these proposed conditions and other special conditions that refer to them are not appropriate in a MLRL permit and are not appropriate permit conditions for the Department Staff to administer now or in the future or to duly enforce at any time. Apparently special conditions #5, #6, #19 [#19 imposes actions on land not owned by the Applicant], #24, and #25 have not and cannot at this time be fully reconciled with the MLRL definitions ofaffected land or permit area.

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.

SEQR and future mine permit applications. By operation of current statutory or regulatory criteria, permit renewals are limited to phase I mining. To mine phase II of the mine land-use plan or any subsequent phase, an application for a permit modification would be required as noted below since there would be a material change from the scope and permit conditions of the phase I permit [ECL 70-0115.2]. In the proposed mine land-use plan, the phase I action would have stepped floor levels up the side of the mine from elevation 240 to approximately elevation 360. The phase II action, if permitted, would mine at another location on site (not adjacent to phase I) between approximate elevations 560 and 680, a material change from the phase I permit.

The phase II permit application would be for a major project [6 NYCRR 621.4(i)] and must therefore be treated as an application for a new permit [ECL 70-0115.2(b)] unless violations have been duly found [6 NYCRR 421.1(d)]. As an application for a new permit to mine phase II, it would be subject to notice and comment requirements pursuant to 6 NYCRR 621.6, the hearing requirements pursuant to 6 NYCRR 621.7 and SEQR requirements. When an application for any phase of this mine is considered, the requested permit and each permit for subsequent phases would be subject to SEQR and 6 NYCRR 617.9 "Decisionmaking and findings requirements". This processing allows the opportunity for further analysis of any application regardless of the disfavor of a segmented review.

When a phase of a project is not a current undertaking but one that will be carried out, if at all, in the future, and detailed analysis is impossible, a segmented review, although disfavored, is permissible [Schultz v Jorling, 164 AD2 252]. During the nominal 150 year mine life as proposed, a detailed analysis of subsequent mine phases at this time is neither possible nor reasonable because, in part, future applications would be publicly noticed and subject to the processing noted above. It would be reasonable and prudent to revisit each pending phase of the proposed mine prior to permitting it, to review each phase essentially as a segmented SEQR review in the context of current regulatory criteria, responses to public notices, industry practices, available technology, operational experiences under existing permits,etc.

Several proposed issues for this phase I hearing could cause adjudication of mining events that may occur in phase II and subsequent phases, all of which would be more appropriate for adjudication when those events would be potentially permitted.

The draft permit for phase I proposes special conditions for subsequent phases by direct reference in special conditions 22 and 24 and indirectly in various others. These future special conditions are premature in the draft permit for phase I.

As discussed above, the term of the instant permit for the proposed phase I mine operation is five years subject to renewals. Applications for subsequent phases of mining would require Staff to process each as a new permit application pursuant to ECL 70-0115.2(b).

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.

Noise. "The MLRL gives the Department the power and duty to: "... establish environmental standards and criteria for mining and reclamation of the affected land ..." [ECL 23-2709(c)]. Accordingly, 6 NYCRR Parts 420et seq. were promulgated to establish and make known the environmental standards for the Department's environmental concerns at mines and quarries. The SEQR determination made on adoption found the regulation and standards would, among other things, minimize or avoid the adverse environmental effects at mines and quarries. For any impact regulated by 6 NYCRR Parts 420et seq., compliance with the environmental standards therein would eliminate adverse environmental effects to the maximum extent practicable and otherwise minimize environmental effects.

Draft permit special conditions #5, #6, #19 and #26 imposed requirements that are noise related beyond the requirements of 6 NYCRR 422.2. The specific provisions of 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. The regulation indicates that the above methods of noise control may be used to accomplish the objective of "... minimizing the effect of mining on the people of the state ..."

However, Staff would expand these standards by proposing numerical noise levels and other requirements for this quarry permit in its proposed special conditions. Staff's rationale appears to be that special conditions, such as #19, are needed to meet the noise standards required at solid waste management facilities and to enable it to make the SEQR findings required by 6 NYCRR 617.9 for mines and quarries. These special conditions as drafted by Staff would expand the jurisdiction of the Department by creating new noise standards for this quarry that are more restrictive than contemplated under the MLRL. These special conditions are not appropriate MLRL permit conditions and are not appropriate duties for the Department Staff to administer now or in the future nor to administratively enforce at any time.

Perhaps the contents of these special conditions can be incorporated into a private agreement between the Applicant and others.

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 APPLICANT: The Applicant accepts the Staff's draft permit of February 6, 1996 without exception.

The TOWN OF FISHKILL: Although the Town of Fishkill ("Town") had an original position in opposition to the downsizing of the quarry, the Town does not now oppose the draft permit for the Applicant's proposal for a smaller mine. [Note that the Town originally sided with the Applicant in opposing the 75 ft. buffer along the property line common to the Fishkill Ridge Conservation Area claiming a loss of reserve, a loss of a natural resource, a detriment to the economic viability of the mine and a potential loss of tax revenues. Further, at the prehearing conference on October 20, 1995, the Town served notice pursuant to ECL 23-2711.3(a) that it opposes the Staff's requirement for a 200 foot buffer adjacent to Route 9. The Town claims it should retain land use planning jurisdiction over the 200 foot wide buffer and the 200 foot wide buffer as required by the draft permit, would be a usurpation of the its land use planning jurisdiction.]

SCENIC HUDSON, INC., THE SCENIC HUDSON LAND TRUST, INC., AND THE NEW YORK - NEW JERSEY TRAIL CONFERENCE, INC. (collectively henceforth "Scenic Hudson Trails"): Scenic Hudson Trails is not opposed to a mine on the site but proposes issues on the application and consequently on the draft permit. Their proposed issues include the subject areas of visual impacts, noise, the variance, reclamation, traffic, a supplemental EIS, segmentation, alternatives, public need and benefit, land use character, public safety and historic preservation.

Scenic Hudson Trails moved for a supplemental EIS in its submittal of March 7, 1996 because the proposal may result in a significant adverse environmental effect [6 NYCRR 617.8(g)]. The results of the changes include a reduction in the scope of the mine with an attendant reduction in the adverse environmental impacts that may occur. No supplemental EIS is anticipated nor should be considered.

Visual impacts: As noted above under Noise, 6 NYCRR Parts 420et seq. were promulgated to establish and make known the environmental standards for the Department's environmental concerns at mines and quarries. It is not anticipated that the quarry would be hidden from view here or that SEQR or the Mined Land Reclamation Law would hide quarries in general from view. Compliance with the environmental standards of 6 NYCRR 422.2 represents the minimized adverse environmental impact to the maximum extent practicable. The specific provisions of the mining plan required by 6 NYCRR 422.2(b)(4) describes the methods that may be utilized to accomplish the objective of minimizing the effect of mining on the people of the State. Screening, which "... may consist of either natural or artificial barriers such as berms, fences, shrubs, trees or any combination of these ... " are the methods stated in the regulation that may be used to "minimize the visual impact of the mine on the people of the State." The Applicant proposes plantings concurrently with and adjacent to active mining that presumably would grow into their job of screening the mine face. The apparent need for complete cloaking of the mine from view would be beyond screening contemplated in the MLRL. There is no dispute that the proposal provides screening on site including berms, landscaping and combinations.

RULING #4: Visual impacts are DENIED. There is no showing that the regulatory criteria, as noted above, would not be met or there is a potential for permit denial.

Nonetheless, Scenic Hudson Trails' proposed visual issues are addressed individually as follows.

Scenic Hudson Trails' proposed visual impact issue - Inadequate Assessment. Scenic Hudson Trails faults the draft EIS for its assessment and presentations and concludes it is an issue for adjudication because Scenic Hudson Trails wants further "minimization" of impacts. Scenic Hudson Trails references 6 NYCRR Part 420et seq., for support but only select portions. Scenic Hudson Trails do not rely on the entire section or subsection that puts the regulation and proposal in context. The proposed issue can only be regarded here as additional comment on the draft EIS and not an issue for adjudication since it is neither substantial or significant.

Scenic Hudson Trails' proposed visual impact issue - Inadequate mining and reclamation plan for side slopes or mining to lower elevations up the side of Bald Hill. Scenic Hudson Trails, among other things, proposes different mining operations than proposed, i.e. begin mining at the lower elevation of 400 feet (local datum) or a sloped sidewall rather than 40 foot high benches as proposed or considered by others. We cannot consider either alternative as neither is the subject of the draft permit nor part of the application. In addition, the latter draft permits were conditioned otherwise to closely reflect the other details and contents of Scenic Hudson Trails petition.

Scenic Hudson Trails' proposed visual impact issue - Compatibility with local land use and the Route 9 buffer. The current land use zoning allows for mining. The proposed mine would also be compatible with other mining operations adjacent and nearby. Although there are other adjacent lands in an undeveloped or open pattern as noted by Scenic Hudson Trails, their existence next to a quarry operation with concurrent reclamation is no reason for additional permit conditions or denial because of the visual differences.

Scenic Hudson Trails' proposed visual issue - inadequate mitigation, inadequate reclamation and rock staining technology. The concern for the color contrast of the exposed mine to adjacent areas apparently prompts Scenic Hudson Trails to conclude the reclamation plan is inadequate. They propose additional tree plantings and other planting schemes and alternatives such as underground mining (an alternative mentioned in the draft EIS) and rock staining, presumably by a surface coating of some material. The draft permit is conditioned to describe reclamation objectives and requires various reclamation activities in addition to those in the application. In addition, the reclamation bond would remain in effect until the Department approves the release of all or portions of the surety as provided for in draft permit special condition I.1. In the face of all this, the proposed issue appears below the level of the standards for an adjudication.

Scenic Hudson Trails proposed noise impacts: See RULING #3 NOISE above. Scenic Hudson Trails concludes that without computer modelling of the various mine phases, the Applicant cannot prove that the proposed mitigation would be the maximum possible. Without the maximum mitigation by modelling, Scenic Hudson Trails claims the application would not comply with the regulatory requirements of 6 NYCRR Parts 422 and 617.

The specific provisions of 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. However, Scenic Hudson Trails would expand these standards for this quarry permit based on solid waste management facilities standards as the threshold for the SEQR findings required by 6 NYCRR 617.9. The ruling for issue #3 noise applies here as noted above.

RULING #5: Scenic Hudson Trails proposed issues on process water backup well and mitigation is DENIED. Scenic Hudson Trails questions the engineering design of the water system, the size of the holding ponds, the quantity of makeup water required from a proposed well and the impact of the proposed well operation on the nearby public water supply of the Village of Fishkill. The size of the holding ponds for process water needs is of minimal concern to a mining plan since an alternate assured supply of water is also proposed. The holding ponds and well for dust control and other water based mitigations would be accommodated.

There is no need to adjudicate the process water backup well as there are other mechanisms in place and available to assure meeting design intent. It is expected that the development of a well to meet design quantities would require the well pump tests to establish the yield of the new well. The approved construction plans for the well construction could include requirements that the scheduling of the well pump tests be coordinated with the Owners of the nearest public water supply wells for monitoring purposes. Staff can proceed to secure any such assurances necessary to show the Applicant's proposed well impacts on existing public water supplies. Further, besides the usual save harmless requirements, special condition #4 of the draft permit requires the completed construction to be certified as planned (e.g. without influencing adjacent public water supply wells). The Owners of the public water supply system, the Village of Fishkill, are known to have had their consultant's comment on this mining application without raising a proposed issue.

RULING #6: Scenic Hudson Trails proposed air pollution issue on dust is DENIED. Scenic Hudson Trails seeks a demonstration that water for dust control purposes can be provided at a location several hundred feet away from the ponds. Technology to move water is commonly known and readily available.

RULING #7: Scenic Hudson Trails proposed air pollution issue on diesel exhaust is DENIED. The generalized conclusion that there is no demonstration of compliance with ECL Article 19 does not raise or identify the substance for an issue and a proposed issue cannot be found.

RULING #8: Scenic Hudson Trails proposed truck traffic issue is DENIED. Scenic Hudson Trails contends, among other things, the Applicant's traffic study underestimates traffic as presented in NYSDOT data, is too narrow in scope (e.g. intersection traffic away from the mine) and that traffic signals are needed at the mine entrance road. Scenic Hudson Trails seeks mitigation by the Applicant for remedies. The purpose of a draft EIS is to inform other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment (ECL 8-0109.4), which has been done. Also, SEQR does not change the jurisdiction between or among State agencies [6 NYCRR 617.3(b)] so that traffic mitigation, such as traffic signals on State roads are the domain of another agency.

RULING #9: Scenic Hudson Trails proposed SEQR issue on segmentation is DENIED. Scenic Hudson Trails claims the current draft EIS is segmented and seeks to have the draft EIS or a supplemental EIS include evaluations of possible land uses under the recent reclassification of local zoning to "planned industrial". They say an expanded EIS is for the purpose of protecting the Town of Fishkill's potential to make future SEQR findings. However, as explained above at "SEQR and future mine permit applications" for the "RULING, ISSUE #2 MLRL PERMIT TERM", by operation of the procedures in the regulations, the public as well as the Town will have an opportunity to exercise SEQR provisions. Further, since the Town is actively participating thus far in this proceeding as a prospective party, I assume they would look out for their own interests.

RULING #10: Scenic Hudson Trails proposed SEQR issue of alternatives is DENIED. Scenic Hudson Trails concludes the level of detail for alternatives in the draft EIS is too low and that other alternatives should be considered also. They propose alternatives that limit the project to lower elevations (to el. 500 or el. 400) on the side of Bald Hill, they propose underground mining, they propose wider setbacks between the mine and the property lines and they propose the use of the mine site for residential development rather than mining. Scenic Hudson Trails concludes that the accepted draft EIS violates 6 NYCRR 617.14(f) and therefor SEQR findings pursuant to 6 NYCRR 617.9 cannot be made. However, if for no other reason, compliance or not with 6 NYCRR 617.14(f) does not necessarily or automatically raise an issue for adjudication. There is enough detail of the alternatives in the draft EIS to allow a comparative assessment as required. There is also a range of alternatives discussed in the draft EIS that is reasonable. No showing of an issue for adjudication has been made. The proposed issue may rise to the level of a comment on the draft EIS and if so, a response, revision or other action would be due. In their comments on the second draft permit, Scenic Hudson Trails' proposal limiting mining below elevation 500 was referred to as a "proposed condition" rather than an "alternative" as in their petition for party status. It remains an "alternative" for this consideration.

RULING #11: Scenic Hudson Trails' proposed SEQR issue on public need and benefits is DENIED. The claimed absence of adequate substantiation by Scenic Hudson Trails in the draft EIS for the mine is the apparent reason for raising the proposed issue. The complete application before us is for a mining permit with a five year term subject to ECL Article 70 Uniform Procedures. Beyond that, within the term of this permit, if there is any lesser need for crushed rock or product, eventually there would be less sold and the commercial enterprise and future expansion as planned would be threatened, limited or abandoned without alteration of the environment. The competitive market would determine the need for the crushed rock product from this site and the consuming public would have the benefit of the competitive price or its consequences. There is no known basis in the MLRL to either condition the draft permit or to deny a mining permit on the questions of need and benefit. The Legislature declared that it is the policy of this State to, among other things, "... foster and encourage the development of an economically sound and stable mining and minerals industry ... compatible with sound environmental practices ..." No showing of an issue for adjudication has been made. The proposed issue may rise to the level of a comment on the draft EIS and if so, a response, revision or other action would be forthcoming.

RULING #12: Scenic Hudson Trails' proposed MLRL issue that mining is not allowed on the site is DENIED. Scenic Hudson Trails contends that the existing zoning law is illegal and therefor mining should not be allowed. The Town has shown its position in support of the proposed mine and there is no notification from the Town pursuant to ECL 23-2711.3(v) that the mine is prohibited. Further, the draft permit is conditioned to hold the Permittee responsible for obtaining any other permits, approvals, etc., that may be required for this project and the mine would presumably be consistent with local zoning laws. No basis for an issue exists.

RULING #13: Scenic Hudson Trails proposed variance issues that the benches would be too narrow for tree growth and that the proposed buffers would not be in compliance with the regulatory criteria of 6 NYCRR 622.2(c)(3)(iii) is AFFIRMED. The visual impacts and the justification for the variance as issues are DENIED.

Scenic Hudson Trails takes issue with the visual impacts, the viability of reclamation, the disturbance of the buffer and it takes issue with the applicant's justifications for the variance. The visual impacts are discussed above at RULING #4 and the variance related visual impacts are considered as part of that discussion. Scenic Hudson Trails has not identified either a factual or legal dispute of the Applicant's justifications forthe variance.

The draft permit of 2-6-96 allows a variance for the side slope of the finished quarry. The slope of the face of the finished mine would have an essentially horizontal bench seat width of (depending on a particular bench) twenty (20) or thirty (30) feet at every vertical rise of forty (40) feet. Variances are according to 6 NYCRR 422.2 and 6 NYCRR 422.1(f) and reclamation, in part, by 6 NYCRR 422.3(d)(2)(v)(b).

Scenic Hudson Trails concludes that the benches would be too narrow for tree growth and would present their expert to testify accordingly. Scenic Hudson Trails disputes the proposed buffers supposed compliance with the regulatory criteria of 6 NYCRR 622.2(c)(3)(iii).

Scenic Hudson Trails proposed as a MLRL issue the proposed revegetation and reclamation plans. Scenic Hudson Trails takes issue with the tree selection, the spacing of tree plantings (too close), a temporary tree watering system that would not enhance tree survival thereafter, rock fracture blasting as proposed, etc. Ruling #4 Visual impacts applies here (e.g. denial as an issue and denied for the same reasons.)

RULING #14: Scenic Hudson Trails proposed issue with draft permit special condition #18 on the differences between the hours of operation listed therein and the hours of operation listed in the Town of Fishkill soil removal ordinance is DENIED. The Town of Fishkill notified the Staff of the hours of operation according to the procedure described in ECL 23.2711.3(a) and there is no known dispute outstanding.

RULING #15: Scenic Hudson Trails propose a public safety issue is DENIED. Because people on their land might stray onto the Applicant's property and go over the edge of the proposed quarry, Scenic Hudson Trails seek some unspecified fencing to comply with 6 NYCRR 420.2(a), 6 NYCRR 422.1(b), .2(a), .3(b) and SEQR. The draft permit requires snake fencing that "... shall encircle the Phase I mining area and plant area. The only opening in the fence shall be at the break in the screening berm where the access road enters the plant area. ..." A fence is requested and proposed and would reasonably be expected serve as to alert Scenic Hudson Trails' people. No basis for an issue has been presented.

RULING #16: Scenic Hudson Trails proposed issue for the authorization of the permit without demonstrated compliance with Parks, Recreation and Historic Preservation Law 14.09 [e.g. 6 NYCRR 621.3(a)(7) & 621.5(f)] is DENIED. Before a permit would be issued, the record would have to demonstrate compliance with 6 NYCRR 621.3(a)(7) by displaying the determination of the NYS Office of Parks, Recreation and Historical Preservation of compliance with the NYS State Historic Preservation Act of 1980. This is one prerequisite for Staff's determination of a complete application. There is no issue to adjudicate.

The Proposed Issues of MS. ROSE OLIVERI AND MS. VICTORIA PARISELLA NELSON ("Oliveri-Nelson").

The filing for party status by Oliveri-Nelson on September 22, 1995 included requests for renotice of the public hearing and additional time for the preparation of their petition for party status. The motions became moot on October 20, 1995 when their completed petition for party status was submitted and summarized on the record.

At that time, their attorney, Richard I. Cantor Esq., made three additional motions candidly noted here as: 1) An adjournment of the prehearing conference until all materials sought by the Staff in the draft permit and otherwise have been submitted and available for review; 2) The notice of completion of the draft EIS be annulled and the draft EIS expanded to address the variance request for the mine setback/side slope proposal; and 3) An adjournment of the proceedings for discovery and to clarify if the Staff was subjected to "undue pressure from Albany". THE THREE MOTIONS ARE HEREBY DENIED. The first motion for adjournment is not needed as the draft permit provisions for additional submittals can be more appropriately the subject at the prehearing conference when each proposed issue would be considered. For the second motion, the variance sought does not change the original application and it was the subject of the draft EIS that was accepted for its scope, content and adequacy pursuant to ECL 8-0109.5. The third motion appears to seek clarification of the Department's central office leadership role with the Department's regional personnel, a matter not for this forum.

The Oliveri-Nelson motions of November 13, 1995 for a supplemental draft EIS and to essentially bar consideration of contemporaneous revisions to the application absent SEQR review were referred to Staff as lead agency and rejected [6 NYCRR 617.8(g)]. The revisions are consistent with the purpose of the prehearing issues conference to, among other things, "... narrow or resolve disputed issues of fact without resorting to taking testimony ..." [6 NYCRR 624.4(b)]

The Oliveri-Nelson submission of March 8, 1996 included a request for a one week extension to review and comment on the revisions to the application and the draft permit. Their comments on the revisions and draft permit were forwarded electronically to this office by their technical consultants on March 22, 1996.

RULING #17: The Oliveri-Nelson proposed issues on hydrogeology is DENIED. See also RULING #5. There is no need to adjudicate the process water backup well as there are other mechanisms in place and available to assure meeting design intent. It is expected that the development of a well to meet design quantities would require the well pump tests to establish the yield of the new well. The approved construction plans for the well construction could include requirements that the scheduling of the well pump tests be coordinated with the Owners of the nearest public water supply wells for monitoring purposes. The Applicant and hence the Staff can proceed to secure any such assurances necessary to show how the Applicant's proposed well impacts on existing public water supplies. Further, besides the usual save harmless requirements, Special Condition #4 of the draft permit requires the completed construction to be certified as planned (e.g. without influencing adjacent public water supply wells). The Owners of the public water supply system, the Village of Fishkill, are known to have had their consultant's comment on this mining application without raising a proposed issue.

Otherwise, Oliveri-Nelson suggest the proposed well may not yield enough water from the underlying rock when drought type conditions result in minimal upland recharge. They further assert that operation of the proposed well may reduce the flow in Clove Creek. They do not account for the groundwater recharge function of the proposed storage ponds for stormwater runoff rather than the existing immediate drainage into the creek. They state the water well proposal must comply with the ECL Article 23 and Part 422 of the regulations thereunder. However, Oliveri-Nelson have not identified any departure from any specific criteria or precise grounds for opposition. Absent a disputed fact or action, the proposed issue has nothing to adjudicate.

RULING #18: The Oliveri-Nelson proposed issue on wildlife is DENIED. Oliveri-Nelson are concerned about the habitat of the timber rattlesnake and what they perceive as a need for more study both for the draft EIS and for the enhancement and protection of wildlife. Oliveri-Nelson have not recognized the draft permit conditions regarding snake fencing, operating procedures and reminder signs protecting people as well as rattlesnakes and copperheads. The level of both the significance and substance of the proposed wildlife issue is below that for adjudication.

RULING #19: The Oliveri-Nelson proposed issue on special condition #19 and noise is DENIED. See also RULING #3 above and under the heading Noise. A portion is repeated here for convenience: "The MLRL gives the Department the power and duty to "... establish environmental standards and criteria for mining and reclamation of the affected land ..." [ECL 23-2709(c)]. Accordingly, 6 NYCRR Parts 420et seq. were promulgated to establish and make known the environmental standards for the Department's environmental concerns at mines and quarries. The SEQR determination made on adoption found the regulation and standards would, among other things, minimize or avoid the adverse environmental effects at mines and quarries. For any impact regulated by 6 NYCRR Parts 420et seq., compliance with the environmental standards therein would eliminate adverse environmental effects to the maximum extent practicable and otherwise minimize environmental effects.

The expressed concern is noise from portable, stationary and mobile equipment on and off-site. The specific provisions of 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 this standard.

RULING #20: The Oliveri-Nelson proposed visual issue is DENIED. See also RULING #4 above and under the heading Visual impacts. It states, in part: "The specific provisions of the mining plan required by 6 NYCRR 422.2(b)(4) describes the methods that may be utilized to accomplish the objective of minimizing the effect of mining on the people of the State. Screening, which `... may consist of either natural or artificial barriers such as berms, fences, shrubs, trees or any combination of these ... ' are the methods stated in the regulation that may be used to `minimize the visual impact of the mine on the people of the State.' The Applicant proposes plantings as part of reclamation with the reclamation proceeding concurrently with and adjacent to active mining. Screening may include shrubs and trees that presumably would grow into their job. The apparent need for complete cloaking of the mine from view would be beyond screening and reclamation contemplated in the MLRL. There is no dispute that the proposal provides screening on site including berms, landscaping and combinations."

Addressed here under visual is the Oliveri-Nelson claimed deficiency of the draft EIS so they were unable to evaluate the effectiveness of the proposed mitigation. They claim that revegetation, reclamation and mitigation would not protect the natural visual beauty and aesthetic values in the affected areas. Certainly any quarry would alter the natural surface and visual beauty and related values. It is not anticipated that the quarry would be hidden from view here or that SEQR or the Mined Land Reclamation Law would hide quarries in general from view. Permitted quarries are expected to change the natural visual beauty and aesthetic values in the affected areas. Oliveri-Nelson references only select portions of 6 NYCRR Part 420et seq. for support rather than the entire section or subsection that puts the regulation and proposal in context. The proposed issue can only be regarded here as additional comment on the draft EIS and not an issue for adjudication since it is neither substantial or significant.

RULING #21: The Oliveri-Nelson proposed issue on special condition #16 and air pollution by dust is DENIED. This proposed issue focuses on dust as discussed in the draft EIS and we would be adjudicating the adequacy of the content of a draft EIS rather than the mining permit application. Therefor the proposed issue is considered as a comment on the draft EIS and for processing by the Staff/Applicant accordingly. The Applicant proposes to control dust and the draft permit is conditioned to control dust by the use of water sprays or approved dust palliative. Screening is a recognized method to mitigate dust and noise; screening is proposed and a subject of special conditions in the draft permit. The dust issue here does not rise to the need for adjudication pursuant to 6 NYCRR 624.4.

RULING #22: The Oliveri-Nelson proposed issue on zoning/land use is DENIED. Although Oliveri-Nelson rely on a number of studies and plans for their zoning/land use issue, it is presumed that the Town of Fishkill represents the community and its goals and objectives pursuant to 6 NYCRR Part 422. The Town has shown its position in support of the proposed mine and there is no notification from the Town pursuant to ECL 23-2711.3(v) that the mine is prohibited. Further, the draft permit is conditioned to hold the Permittee responsible for obtaining any other permits, approvals, etc., that may be required for this project. No basis for an issue exists.

RULING #23: The Oliveri-Nelson proposed issue on draft permit special condition II and final plans is DENIED. Pursuant to ECL 23-2709 the Department has the duty, among other things, to issue permits in accordance to the ECL and the rules and regulations thereunder. ECL 23-2711 includes the mandate that the permit must be issued, among other things, upon approval of the application. Staff has accordingly drafted a permit and Oliveri-Nelson have not identified any specific departure from the content or procedures in the ECL or the regulatory prescriptions e.g. of 6 NYCRR 621.3 and 6 NYCRR 621.4(i). Additionally, it is not reasonable and would likely be impossible to develop and submit detailed construction plans and specifications absent approval of the variance either as requested or modified (e.g. in the decision) or absent special conditions that may first appear in the final decision or absent any knowledge of modifications to the project as a consequence of adjudication.

RULING #24: The Oliveri-Nelson proposed issue on the variance for setbacks is DENIED. The Applicant submitted an amendment to its application dated January 31, 1996 with text, sketches and appended reports of, among other things, the basis for and comparative impacts of the variance. The Staff accepted the amendment (i.e. a permit was drafted). The amendment concludes the variance would decrease the size of the affected area, lower the highest elevation of the mine and increase the distance from the mine to the property line. It further concludes the reduced mine would also be more protective of the environment by reducing its visual exposure and noise from a site smaller than the original. Oliver-Nelson offer (they say "if necessary") witnesses to testify the variance would not have the same degree of environmental protection in some unspecified way. No issue or departure from program criteria is identified and there is no specific topic for the proposed testimony.

RULING #25: The Oliveri-Nelson proposal is DENIED for a five hundred (500) foot buffer instead of the fifty foot buffer proposed and a ten (10) foot high fence about the eligible archeological district proposed for the site. General condition #13 of the draft permit requires the permittee to halt work when archeological remains are encountered and action taken. Also, before a permit would be issued, the record would have to demonstrate compliance with 6 NYCRR 621.3(a)(7) by displaying the determination of the NYS Office of Parks, Recreation and Historical Preservation of compliance with the NYS State Historic Preservation Act of 1980. The Applicant's draft EIS (2 p-5&7) identified this as a matter to be decided. There is no issue to adjudicate.

RULING #26: The Oliveri-Nelson proposed issue on special condition #10, storm water facilities, is DENIED. The operation and maintenance of the storm water ponds is addressed partly in special conditions 2, 5 & 6 as well as 10 of the draft permit. The facilities are expected to function as proposed and intended by the Applicant and as permitted by the Department. Anything otherwise may be subject to an enforcement action, permit revocation or other action. However, there is no demonstrated need for adjudication or an issues identified.

RULING #27: The Oliveri-Nelson comments on blasting and special condition #14 propose NO ISSUE. They expect, as we do, a licensed blaster to comply with safe blasting practices and the regulatory criteria having jurisdiction over blasting activities.

RULING #28: The Oliveri-Nelson proposed issue on reclamation and special condition #20 is DENIED. The draft permit is conditioned to describe reclamation objectives and requires various reclamation activities in addition to those in the application. In addition, the condition also requires: "A plant care professional shall be retained to monitor the planting, care and follow-up evaluation of the planting program." Further, the reclamation bond would remain in effect until the Department approves the release of all or portions of the surety as provided for in draft permit special condition I.1. In the face of all this, the proposed issue is below the level of the standards for an issue for adjudication.

City of Beacon ("City"): The City seeks party status to adjudicate its proposed issues on the continued structural integrity of its ten (10) inch diameter raw water supply line and the impact of the proposed storm water discharges on the continued yield of the Village of Fishkill's water supply wells. The City's petition was filed late on March 14, 1996. (The Notice of Hearing was published in thePoughkeepsie Journal on August 25, 1995 with a filing date of September 22, 1995.) The City presented as "good cause for filing late" that it did not consult legal counsel before its earlier correspondence and it was not formally served notice of this application.

RULING #29: The City's proposed issue on the existing City owned water supply pipeline is DENIED. General Conditions #7 of the draft permit prohibits trespass and #8 advises the Permittee to secure any other required assents including other easements or rights of way. It is assumed that the City constructed its pipeline on its own property or in a City secured easement or right of way so that the Applicant would have to go to the City for permission to cross City property or the City easement or right of way. It would seem that the draft permit protects the City and its property without a need to dispute the permit.

RULING #30: The City's proposed issue with the Applicant's proposed storm water discharge is DENIED. The City notes that the stormwaters would be discharged downstream of the Village owned well. The City did not note the proposed storm water ponds on site or their recharge impact. A permitted storm water discharge under the SPDES general permit is subject to enforcement provisions and is expected to comply with water quality standards.

PARTY STATUS

The Applicant and the assigned Department Staff are mandatory parties to the proceeding. Scenic Hudson Trails raises an issue and is a party to the proceeding. The remaining prospective parties may participate in this proceeding as witnesses called by any designated party. The remaning prospective parties are denied party status absent any identified issues. The Town of Fishkill takes no issue with the application or the draft permit and does not propose to present any evidence. As a consequence of my rulings denying Oliveri-Nelson's proposed issues, they do not qualify for full party status. The City of Beacon is denied party status as the good cause shown is not persuasive because of the time lapse before counsel was sought and because notice pursuant to the ECL was provided. Additionally, no issue for adjudication is raised by the City.

Builders Association of the Hudson Valley, Inc., Jim Brooks, President, seeks amicus status and has special knowledge and a unique perspective on quarries and quarry products. Amicus status is granted.

APPEALS

Appeals to the Commissioner of ALJ rulings are regulated by 6 NYCRR 624.8(d). It provides for expedited appeals, under certain conditions, of rulings on party status and rulings on issues, among other things. Expedited appeals are according to 6 NYCRR 624.6(e). Additionally, 6 NYCRR 624.6(g) allows the ALJ to modify time frames.

The participants of the October 31, 1995 session of the prehearing conference essentially agreed that prejudice would be avoided if additional time would be allowed to file appeals and if overnight mail was used. However, overnight mail is not a hearing cost subject to 6 NYCRR 624.11. So, consistent with the recommended time frames, Appeals may be filed with the Commissioner on or before April 15, 1996. Responses to appeals filed with the Commissioner on or by April 29, 1996. Please note that as indicated in the Notice of Hearing, filings transmitted by telecopier or electronically will not be received.

HEARING

The hearing schedule has not been established at this time. The Parties will be notified when arrangements have been secured.

Thank you.

/s/
Francis W. Serbent
Administrative Law Judge

March 28, 1996
Albany, NY

cc: Sour Mountain Realty, Inc.,
29 Elm Street
Fishkill, NY 12524

Laura Zeisel, Esq.
169 Main Street, P.O. Box 9
New Paltz, New York 12561

Town of Fishkill, Office of the Town Supervisor
401 Business Route 52
Fishkill, NY 12524

Van DeWater and Van DeWater, Ronald C. Blass, Jr., Esq.
PO Box 112
Poughkeepsie, NY 12602

Ms. Klara Sauer,
Executive Director Scenic Hudson Inc. and
Assistant Secretary, The Scenic Hudson Land Trust, Inc.,
9 Vassar Street
Poughkeepsie, NY 12601

Ms. Joann Dolan, Executive Director
The New York-New Jersey Trail Conference, Inc.,
232 Madison Avenue
New York, NY 10016

John W. Caffry, Esq.,
100 Bay Street
Glens Falls, NY 12801

Ms. Victoria Nelson and Ms. Rose Oliveri
c/o Richard I. Cantor, Esq.,
367 Main Mall
Poughkeepsie, NY 12601

Builders Association of the Hudson Valley, Inc.,
Attn: Jim Brooks, President
PO Box 7123 116 Meadow Avenue
Newburgh, NY 12550-0051

The City of Beacon,
Office of the City Attorney, Peter M. Forman, City Attorney
427 Main Street,
Beacon NY, 12508

NYSDEC Region 3, Attn. Katherine Hudson Esq.
21 South Putt Corners Road
New Paltz, NY 12561-1696

NYSDEC Region 3, Office of the Regional Director,
21 South Putt Corners Road
New Paltz, NY 12561-1696

(Addendum Attached)

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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, (Appl. #3-1330-47/6-0) by

MEMORANDUM #7

Sour Mountain Realty, Inc.,

Applicant

In its letter of April 9, 1996, the Department's Region 3 Staff, among other things, made requests for certain clarifications of the ALJ's Memorandum #5, Rulings on Issues and Party Status, and a request for possible rescheduling of the filing of appeals.

Staff's requests prompted an executive determination to provide those clarifications and to reschedule the filing of appeals and responses as found in the Chief ALJ's letter of April 11, 1996.

A. Staff initially asks if Rulings #'s 1, 2, and 3 of Memorandum #5 identify adjudicable issues. The Rulings are:

"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 three rulings request clarification that may be done by memoranda, which can be submitted in connection with any appeals from these Rulings. They are not issues for adjudication. The requests ask Staff, Applicant and the other Parties to explain at the earliest possible time for the record the legal basis relied upon by Staff for: its proposal to impose permit conditions which affect the permittee's activities outside of the "permit area" or "affected land" as defined (Ruling #1); its proposal to regulate the permittee's activities after expiration of the maximum permit term allowed (Ruling #2); and its proposal for permit conditions which would impose noise limits more stringent than the limits prescribed by adopted standards (Ruling #3).

B. Staff then asks if Rulings #'s 4, 13, 19, 20, 24, 27 and 28 of Memorandum #5 would be affected if Rulings #'s 1, 2 and 3 results in changes in the draft permit. The disposition of Rulings #'s 1, 2 and 3 and any consequential changes in the draft permit could affect the Rulings noted above.

C. Staff states that its earlier reference to Ruling #3 should be changed to Ruling #13 so the reference now reads: "... staff seeks clarification of the issue which has been identified for adjudication in Ruling #13, specifically with respect to the proposed buffers." In my Ruling #13, 622.2(c)(iii) should read 422.2(c)(iii). Ruling #13 states:

"RULING #13: Scenic Hudson Trails proposed variance issues that the benches would be too narrow for tree growth and that the proposed buffers would not be in compliance with the regulatory criteria of 6 NYCRR 422.2(c)(3)(iii) is AFFIRMED. The visual impacts and the justification for the variance as issues are DENIED.

Scenic Hudson Trails' ("Petitioners") supplemental filing of March 7, 1996 in the section titled "2.3 Variance Application:" beginning on page 14 and continuing on to page 17, contend that the benches would be too narrow for tree growth and that the proposed buffers would not be in compliance with the regulatory criteria of 6 NYCRR 422.2(c)(3)(iii). Petitioners propose to prove that the narrower benches would reduce tree growth and consequently increase visual impacts. They also propose to prove that the regulations require undisturbed buffers rather than the proposed buffers with storm water drainage construction.

I have ruled that Petitioners will be allowed to submit their proof on these matters at the hearing.

/s/
Francis W. Serbent
Administrative Law Judge

April 17, 1996
Albany, NY

cc: Sour Mountain Realty, Inc.
29 Elm Street
Fishkill, NY 12524

Laura Zeisel, Esq.
169 Main Street, P.O. Box 9
New Paltz, New York 12561

Town of Fishkill
Office of the Town Supervisor
401 Business Route 52
Fishkill, NY 12524

Ronald C. Blass, Jr., Esq.
Van DeWater and Van DeWater
PO Box 112
Poughkeepsie, NY 12602

Ms. Klara Sauer
Executive Director, Scenic Hudson Inc.
and Assistant Secretary,
The Scenic Hudson Land Trust, Inc.
9 Vassar Street
Poughkeepsie, NY 12601

Ms. Joann Dolan
Executive Director
The New York-New Jersey Trail Conference, Inc.
232 Madison Avenue
New York, NY 10016

John W. Caffry, Esq.
100 Bay Street
Glens Falls, NY 12801

Ms. Victoria Nelson and Ms. Rose Oliveri
c/o Richard I. Cantor, Esq.
367 Main Mall
Poughkeepsie, NY 12601

Builders Association of the Hudson Valley, Inc.,
Attn: Jim Brooks, President
PO Box 7123, 116 Meadow Avenue
Newburgh, NY 12550-0051

The City of Beacon
Attn: Peter M. Forman, Esq.
City Attorney
427 Main Street
Beacon, NY 12508

Katherine Hudson, Esq.
NYSDEC Region 3
21 South Putt Corners Road
New Paltz, NY 12561-1696

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