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Stissing Valley Farms, Inc. - Interim Decision, January 7, 1997

Interim Decision, January 7, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1014

In the Matter

- of the -

Application of STISSING VALLEY FARMS, INC., Dutchess County, for
a mined land reclamation permit pursuant to Environmental
Conservation Law Article 23, Title 27 (New York State Mined Land
Reclamation Law) and Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York Parts 420
through 425

NYSDEC Project No. 3-1342-38/1-0

INTERIM DECISION OF THE DEPUTY COMMISSIONER

January 7, 1997

INTERIM DECISION OF THE DEPUTY COMMISSIONER

This is the Interim Decision of the Deputy Commissioner with respect to appeals pursuant to 6 NYCRR 624.8(d) from the Issues Ruling of Administrative Law Judge ("ALJ") Kevin J. Casutto dated November 4, 1996 in this matter. As the Acting Commissioner served as the Department's General Counsel at the time this matter was heard, the authority to decide this appeal has been delegated to Deputy Commissioner Sterman.

ALJ Casutto's Ruling concluded that there were no adjudicable issues. However, he further determined that a "potentially" substantive and significant issue had been raised as to whether "jurisdictional wetlands exist on-site." He also ruled that a potential party, the Mid-Hudson Preservation Alliance ("Alliance") should be given access to the site in order to determine whether jurisdictional wetlands exist on the site. In the event the Alliance finds no jurisdictional wetlands exist on the site, the ALJ concluded that no adjudication will be necessary. If they do, he ruled that further proceedings will follow with respect to the wetlands issue. He also concluded that the Department's Staff, as lead agency under the State Environmental Quality Review Act ("SEQRA"), had taken the requisite "hard look" at the project's environmental impacts and had acted reasonably in issuing a negative declaration for the project, meaning that an environmental impact statement ("EIS") need not be prepared. Therefore, he denied the Alliance's request that he rescind the Staff's negative declaration under SEQRA in connection with the proposed project. He deferred ruling on the Alliance's petition for party status pending the results of the Alliance's determination whether jurisdictional wetlands exist on the site. However, he ruled that the Alliance has established sufficient interest in the project to warrant granting it party status in the event that it raises a substantive and significant issue with respect to the wetlands issue.

This Interim Decision concludes that the ALJ was correct in ruling that there are no adjudicable issues. As to the wetlands issue, I find that the ALJ ruled incorrectly because the record shows that Staff has determined that no wetlands areas will be affected by mining as proposed by the applicant. Mapped freshwater wetland P-12's adjacent area extends 50 feet into the western portion of Stissing's 94 acre parcel, but the proposed mining activity will be on 24 acres to the east side of the parcel away from the wetland or its adjacent area. Mapped wetland P-51 is to the south and neither this wetland nor its adjacent area extends to the Stissing parcel. The Alliance's claim that the two mapped freshwater wetlands are interconnected through the parcel owned by the applicant amount speculative argument and do not rise to the level of a substantive and significant issue. Moreover, there is no factually credible basis for the claim that the area proposed to be affected by mining will impact on freshwater wetlands subject to regulation under Article 24 of the Environmental Conservation Law ("ECL") or subject to the jurisdiction of the Corps of Engineers. Accordingly, I conclude that there are no issues for adjudication. I remand this matter to Staff for appropriate further processing and for issuance of the requested permit.

The Appeals

Both the Alliance and the applicant, Stissing Valley Farms, Inc. ("Stissing") have appealed to the Commissioner from the ALJ's rulings.

Stissing appeals from that part of the ruling which finds a "potential" adjudicable issue as to whether jurisdictional wetlands exist on the site.

The Alliance appeals on the grounds that the ALJ erred in concluding that there are no adjudicable issues except for the potential wetlands issue. The Alliance supports the ALJ's ruling on wetlands and states that it is prepared to undertake the site visit recommended by the ALJ. The Alliance appeals from the ALJ's ruling in all other respects. Thus the Alliance's appeal asserts that:

  1. The Department should not have issued a negative declaration. A complete EIS should have been ordered.
  2. The negative declaration as issued was not timely and is therefore procedurally infirm and should be rescinded and remanded to Staff.
  3. The negative declaration should be rescinded and remanded because in actuality it is a "conditioned negative declaration" and is procedurally invalid.
  4. The SEQRA review has been segmented and is invalid.
  5. DEC failed to take a "hard look" at the cumulative impact of the proposed mine and the existing Giardina mine, located approximately one-half mile to the north.
  6. There are adjudicable issues on traffic, noise, and hydrology.
  7. Staff's proposed $20,000 reclamation bond is inadequate.

Staff supports Stissing's appeal and opposes the Alliance's appeal.

The Facts

Stissing proposes to excavate and process unconsolidated sand and gravel from a 24 acre area which makes up part of a 94 acre parcel in the town of Pine Plains, Dutchess County. The overall 94 acre site is north of the intersection of County Routes 83 and 70 and south of Willowvale Road. The 24 acre area proposed to be affected by mining operations is located to the eastern side of the parcel. Four phases of mining of about six acres each are scheduled in the mining plan. Reclamation will be undertaken sequentially as mining progresses, to minimize the size of the unreclaimed affected area. Reclamation of phases completed by mining is required to begin before two acres of subsequent phases are affected by mining. The total affected and unreclaimed area is not to exceed seven acres at any time. Final grade will be five feet or more above the ground water table. Reclaimed land will be suitable for agricultural use.

As each phase begins, topsoil will be stripped and stockpiled for re-use in reclamation. Stockpiled material will be located so as to buffer against sedimentation, noise and visual impacts beyond the area being mined. Machinery planned to be used for stripping, mining and reclamation is stated in the mining plan to be a bulldozer, rubber-tired front-end loader, and a dry screen. Trucks will haul the sand and gravel off the site. The application states that an estimated 600,000 cubic yards of sand and gravel remain on the site. A portion of the 24 acre area has previously been mined, apparently prior to the effective date of the Mined Land Reclamation Law ("MLRL").The MLRL is Title 27, Article 23 of the ECL. The prior mined area has not been reclaimed, but will be reclaimed as part of the reclamation plan for the project here under consideration.

Procedural History

The application for this project was filed in June 1994. Following SEQRA review, the negative declaration was issued June 16, 1995.Stissing had previously applied to the Department for permission to mine 49 acres of its overall parcel, but that application was never deemed complete, and has been superseded by the application now before the Department. A notice of complete application was published on June 28 and 29, 1995. Staff prepared a draft permit dated February 15, 1996. A public hearing was then noticed and held on May 28, 1996. An issues conference commenced on May 29 and was continued on May 30. Thereupon, the issues conference was recessed at the parties' request, in order to give them time to discuss the possibility of a negotiated settlement. As a result of those discussions, the draft permit was modified to limit the capacity of the screen and to specify that no material is to be imported to the site for processing. Other revisions addressed fuel leaks, truck back-up on the site, dust control, signs, and a tree buffer for noise and dust control. However, the parties could not agree on a settlement. The issues conference resumed and concluded on September 5, 1996. The ALJ's issues rulings were made on November 4. The parties appealed on December 4 and replied on December 12, 1996.

Wetlands - Ruling 13 and Stissing's Appeal

Stissing appeals from the ALJ's Ruling #13, which was that a potentially substantive and significant issue has been raised regarding the existence of jurisdictional wetlands on the proposed mining site." Citing the Commissioner's June 20, 1995 decision in the Matter of William E. Dailey, Inc., the ALJ concluded that the question whether "regulated wetlands exist on a proposed permit site should be addressed by Staff during the permit hearing process rather than in a separate Article 24 proceeding" to revise the freshwater wetlands map. But he notes that the Alliance's wetlands consultant only suggests that "the area proposed to be mined borders the eastern edge of [an area that]...contains wetland vegetation visible from the road, [and] it is likely that most of the area is wetlands." Based on this assertion, the ALJ concluded that a potentially substantive and significant issue had been raised, and he granted the Alliance's request to inspect the site to ascertain whether the area to be affected by mining contains jurisdictional wetlands.

However, the ALJ's conclusion is contradicted by undisputed facts in the record. First the record is undisputed that two mapped freshwater wetlands in the vicinity of Stissing's lands will not be impacted by the proposed mining activity. The mining activity will be restricted to the eastern 24 acres of Stissing's 94 acre parcel. Mapped freshwater wetlands P-12, to the west, and P-51 to the south will not be affected by the proposed mining activity. Staff in fact inspected the property and confirmed that determination (See Issues Conference Ex. 13 and negative declaration at 2). The Alliance's consultant does not dispute this. The term "site" as used by the parties and the ALJ appears to refer at times to Stissing's entire 94 acre parcel and at other times only to the 24 acre area to be affected by mining. This appears to have been a source of some of the confusion. The principal focus should be on whether "jurisdictional" wetlands, i.e., those subject to Article 24 of the ECL, would be impacted by mining. The determination of jurisdictional wetlands is properly the prerogative of Staff, and not potential intervenors. Staff concluded upon inspection of the site that wetlands will not be affected. Hence, no issue is raised.

Also, the Alliance's wetland consultant, Mr. Norbert Quenzer, Jr. of Bragdon Environmental, attempted to raise an adjudicable issue as to whether a five acre area with hydric soils adjacent to the area to be mined is wetland. He noted that: "A mix of emergent and scrub-shrub wetland is apparent along the unmapped tributary of the Shekomeko Creek...This tributary and its associated wetlands border the northern edge of the proposed area to be mined." (Bragdon Report at p. 1, Ex. E to Alliance's Petition for Party Status). Mr. Quenzer then speculates that it is likely that all or most of the entire area mapped as having hydric soils, which borders on the area proposed to be mined, is wetland. Even accepting Mr. Quenzer's assertions at face value, the fact is that the area which he speculates may be wetlands will not be affected by mining, as the mining activity will be on the east side of the site, away from the postulated wetland or its adjacent area.

I conclude that no substantive or significant issue has been raised as to wetlands. Again Staff's on-site inspection verifies that the area to be mined does not contain wetlands and the mining activity will not impact on existing wetlands.

Finally, the claim that the P-12 and P-51 wetlands are interconnected is mere speculation which is refuted by the Staff's inspection of the site.

Accordingly, the ALJ's Ruling #13 is modified to state that no substantive or significant wetlands issue has been raised.

The Negative Declaration

The Alliance challenges the rationality and timeliness of the negative declaration, and asserts that it is actually an improper conditioned negative declaration. These and related points are discussed below.

Rationality

At the issues conference the Alliance requested that the ALJ review and remand Staff's determination not to require the preparation of an environmental impact statement. Applying the standard of 6 NYCRR 624.4(c)(6)(i)(a), the ALJ found that Staff's determination was not irrational or otherwise affected by an error of law. He therefore rejected the Alliance's request for rejection of the negative declaration. The Alliance appeals.

I concur with the ALJ's ruling on this point. Staff's negative declaration was rational and lawful. While this is a Type 1 project, the facts show that its effect on the environment will be insignificant. Staff's negative declaration and the record overall show that Staff took a fair and considered "hard look" at the project's potential environmental impacts. These include potential impacts on water resources (none); air resources (very limited); agricultural resources (temporary and not significant); aesthetic resources (some, but not significant); traffic (there are adequate routes); historic and cultural resources (none); noise (comparable to existing traffic noise); drainage, wildlife, open space, recreation, odor, public health (none); community character (limited); cumulative impacts (none); zoning (not inconsistent with local zoning).

In broad perspective, the proposed project involves the use of a bulldozer, front end loader and a dry screen in a rural agricultural area to recover sand and gravel above the groundwater table. Operating hours are limited by the permit. Highway infrastructure is adequate. Common experience suggests that noise from a bulldozer and front end loader would not be significantly different from that of farm equipment commonly employed in agricultural areas. Likewise, dust from the dry screen will be limited and not inconsistent with dust common to agricultural operations. When put in this perspective, in light of the record in this case, including the application, negative declaration, and issues conference record, Staff's negative declaration was correct.

Timeliness

The Alliance appeals the ALJ's Ruling #2, which concluded that the negative declaration was timely. The ALJ's ruling is upheld. While Stissing initially filed an application for a 49 acre mining project, that application was never deemed complete. Stissing then resubmitted a new application for a smaller 24 acre project, and the negative declaration was timely made with respect to that project.

Conditioned Negative Declaration

The Alliance next argues that the negative declaration was an improper conditioned negative declaration. The Alliance relies on two judicial decisions Shawangunk v. Planning Board of the Town of Gardiner, 157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dept), and Merson v. McNally, 643 N.Y.S.2d 129 (2d Dept, 1996). in support of its position. The Alliance argues that these cases stand for the proposition that "if DEC extracts concessions or requires mitigation measures as a conditional prerequisite for the issuance of a negative declaration, then DEC has issued a CND..." Since conditioned negative declarations ("CNDs") are only allowed for unlisted actions, and are not allowed for Type 1 actions such as here, the Alliance concludes that DEC has violated SEQRA's procedural requirements.

However, I concur with the ALJ's ruling on this point (Ruling #3). The Alliance's argument reads more into the Shawangunk and Merson decisions than they actually hold. They each recognize that a reduction in project scope can result in environmental impact reduction to the point of insignificance. That is what happened in this case. The overall record in this case shows that SEQRA's environmental protection objective clearly functioned and served its purpose.

The Alliance's argument exalts form over substance. The Alliance's position, if upheld, would disserve SEQRA's aim of minimizing environmental effects while preserving other values including economic and social considerations.In this regard, it should not be forgotten that mineral products in fact provide materials useful and necessary to our State and citizens. See ECL 23-2703(1): "The legislature hereby declares that it is the policy of this state to foster and encourage the development of an economically sound and stable mining industry, and the orderly development of domestic mineral resources and reserves necessary to assure satisfaction of economic needs compatible with sound environmental management practices..."

Segmentation, Cumulative Impacts and "Hard Look"

I reject the Alliance's appeals from the ALJ's Rulings #4, 5, and 6 on the basis of the ALJ's decision on these points, which I adopt, and based on the foregoing discussion. I find no basis in the record on which to grant the Alliance's appeal on these points.

Traffic, Noise, and Hydrology

I also reject the Alliance's appeal from the ALJ's Ruling on traffic, noise, and hydrology (Rulings #9, 11 and 12) for the reasons given above. I adopt the ALJ's analysis regarding traffic concerns. The additional traffic will be minimal based on this record. I also adopt the ALJ's analysis regarding additional off-site noise which will be minimal, and would not be inconsistent with agricultural uses in the locality. Furthermore, noise buffering is planned. The planned mining will also be above the water table and will not impact on any surface water. Therefore there are no hydrology issues.

Reclamation Bond

The Alliance appeals from the ALJ's refusal to increase the amount of the reclamation bond above the $20,000 amount proposed in the draft permit (Ruling #15). I accept and adopt the ALJ's Ruling on this issue and reject the Alliance's appeal on this issue.

Other Issues

Other issues raised in the Alliance's appeal which are not otherwise addressed above are denied on the basis of the ALJ's Rulings.

Conclusions

Stissing's appeal on the wetlands issue (Ruling #13) is granted. The Alliance's appeals are denied in all respects. Staff is directed to complete processing of this application as appropriate and to issue the permit consistent with this decision.

For the New York State Department
of Environmental Conservation

/s/
By: David Sterman, Deputy Commissioner

Albany, New York
January 7, 1997

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