Stissing Valley Farms, Inc. - Ruling, November 4, 1996
Ruling, November 4, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Application of
STISSING VALLEY FARMS, INC.,
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
(Mineral Resources-Mined Land Reclamation)
NYSDEC Project No. 3-1342-38/1-0
Summary of Rulings
Only the Mid-Hudson Preservation Alliance ("the Alliance") sought to intervene in this mining permit proceeding. The primary contention of the Alliance is that the negative declaration issued by the Department should be rescinded. This ruling affirms the Department's negative declaration, concluding that the negative declaration is not irrational or otherwise effected by an error of law. The Alliance proposed numerous issues that should be addressed in an environmental impact statement, or in the alternative that should be adjudicated as substantive and significant issues. The ALJ found no adjudicable issues. However, the Alliance has raised a potentially substantive and significant issue regarding the existence of jurisdictional wetlands on the proposed mining site. The ALJ concluded that a potentially adjudicable issue has been raised; that if jurisdictional wetlands exist on-site, then an ECL Article 24 permit would be required. This ruling grants the Alliance's request for site access, to allow its further determination of existence of jurisdictional wetlands at the site. In the event its evaluation leads to a conclusion that no jurisdictional wetlands will be effected by the project, then no adjudication will be necessary. However, if the Alliance's evaluation confirms existence of jurisdictional wetlands, then further proceedings will follow, possibly requiring adjudication of the wetlands issue.
Applicant has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Mined Land Reclamation ("MLR") permit pursuant to Environmental Conservation Law ("ECL") Article 23, Title 27 and Parts 420 through 425 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Applicant proposes to mine and process sand and gravel on a total of 24 acres of a 94-acre site. The site is located to the north of the intersection of County Routes 70 and 83, and south of Willowvale Road, in the Town of Pine Plains, County of Dutchess, State of New York. Approximately 600,000 cubic yards of material are anticipated to be mined during a ten-year period. Reclamation is proposed to be undertaken sequentially, with effected areas being reclaimed in a manner suitable for future agricultural use.
Initially, in May 1993 Applicant sought a permit for a 49-acre project. Staff found that proposed project unacceptable. Staff never deemed the initial permit application complete. Then, in June 1994, Applicant submitted a new application for the current proposed 24-acre project. The Department is the lead agency for purposes of State Environmental Quality Review Act ("SEQRA" or "SEQR") review. Regional Staff reviewed the current permit application and issued a SEQR negative declaration on June 16, 1995. Staff made a tentative determination to grant a permit for the project as proposed. Staff prepared a draft permit with twenty special permit conditions, which has been available for public review since February 15, 1996. Exhibit 4. Applicant accepted the draft permit.
On May 28, 1996 a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Stissing Mountain High School, Route 199, Pine Plains, New York at 7:00 p.m. An issues conference was held on May 29, 1996 at 10:00 a.m., at the Pine Plains Town Hall, Route 199, Pine Plains, New York. The issues conference was continued May 30, 1996 at the same location.
Stissing Valley Farms, Inc. ("Stissing", or "Applicant") appeared at the legislative hearing and at the issues conference held the following day, by Laura Zeisel, Esq., 169 Main Street, P.O. Box 9, New Paltz, New York 12561-1696. Appearing with counsel at the legislative hearing and issues conference, was Roy Budnik, Ph.D., Roy Budnik and Associates and Moshe Ziv.
Department Staff ("Staff") appeared at the legislative hearing and at the issues conference sessions by Jonah Triebwasser, Esq. Assistant Regional Attorney, New York State Department of Environmental Conservation ("NYSDEC") Region 3, 21 South Putt Corners Road, New Paltz, New York 12561-1696. Appearing with counsel at the issues conference were Regional Permit Administrator Margaret E. Duke, Deputy Regional Permit Administrator William E. Steidle, Mined Land Reclamation Specialist 1, Robert J. Martin, Richard Rothe, Division of Air Resources and Alexander Ciesluk, of the Division of Regulatory Services.
At the legislative hearing, both written and oral comments were received. Thirty-five members of the public commented on the project, many of whom are Alliance members. All commentors were opposed to the project. The concerns expressed included potential impacts on air quality, water quality, noise, traffic, wetlands and wildlife, cultural resources and community character. Commentors also questioned the propriety of Staff's SEQRA negative declaration determination. These potential issues are addressed in the Alliance petition for party status, and are discussed below. Commentors also raised concerns regarding the character of Applicant's President, Peter Sarosi, M.D. The ALJ explored this matter at the issues conference.
The Issues Conference
The deadline for receipt of petitions for party status was May 22, 1996. The sole application for party status received was from the Alliance. A pre-adjudicatory issues conference was held on May 29, 1996 and May 30, 1996, and was continued September 5, 1996. At the issues conference, the Alliance was represented by the law firm of Whiteman, Osterman & Hanna, One Commerce Plaza, Albany, New York 12260, Terresa M. Bakner, Esq., of Counsel. Appearing with Ms. Bakner were Molly Brown, Esq., Kenneth Kaliski, A.B., Area Director, Resource Systems Group, Inc., Andrew Michalski, Ph.D., Principal Consultant and President, Michalski & Associates and John Henry Low, Vice-President and Member of the Board of Directors, Mid-Hudson Preservation Alliance.
The Alliance's petition for party status opposes Stissing's permit application. The Alliance identifies nine areas of concern in its petition, but proposes more than one issue for adjudication for some areas of concern. Those proposed issues are addressed below.
At the issues conference, Staff raised no objection to the project and asserted that the project should be approved subject to the terms of the draft permit dated February 15, 1996 (Exhibit 4).
An intervenor seeking full party status must demonstrate an environmental interest in the proceeding (6 NYCRR 624.5(b)(1)(ii)) and must demonstrate that a substantive and significant issue exists regarding the permit application (6 NYCRR 624.4(c)). Applicant challenged the interest of several Alliance members, asserting they do not live close enough to the project to be affected. However, Ms. Zeisel acknowledged that five of the nineteen Alliance members identified in the petition have shown sufficient environmental interest. Ms. Zeisel also conceded that the Department's permit hearing regulations, 6 NYCRR Part 624, do not define environmental interest, and the Commissioner has applied the term broadly.
Ruling #1: The Mid-Hudson Preservation Alliance petition for party status does establish environmental interest in the project, one element of a successful petition.
Since no issues existed between Applicant and Department Staff, the issues conference focused on the Alliance's proposed issues. The Alliance maintains that Staff's SEQR negative declaration was improper for several reasons and should be rescinded. The Alliance asserts that a draft environmental impact statement ("DEIS") should be required as part of the permit application for this project. Additionally, the Alliance asserts numerous proposed adjudicable issues that it maintains are substantive and significant. Finally, due to the lack of a DEIS, the Alliance seeks site access for a site inspection and to perform tests and evaluations related to the proposed hydrology and wetlands issues.
During the legislative hearing, commentors expressed concerns regarding the suitability and fitness of Dr. Sarosi, Stissing Valley Farms, Inc. president, to hold environmental permits. More than one commentor at the legislative hearing submitted a packet of documents relating to professional disciplinary proceedings regarding Dr. Sarosi's medical license. Applicant asserts this information is neither complete nor relevant. Ms. Zeisel cited Sarosi v Sobol, 155 AD2d 125 (Third Dept. 1990), not included in the commentors' filings, which reversed a lower court determination revoking Dr. Sarosi's medical license for conduct related to a private placement adoption. Mr. Triebwasser stated that since the conduct did not relate to environmental issues and was reversed by the Appellate Division, Staff deems Dr. Sarosi's professional history irrelevant to the current proceeding.
The issues conference was convened on May 29, 1996 and was continued the following day. On the morning of May 30, 1996, at the joint request of the participants, the ALJ adjourned the issues conference to allow the participants to engage in settlement discussions. Following the adjournment, Applicant, Staff and the Alliance reported that the negotiations were helpful, but that a final agreement had not been reached. The parties requested an adjournment of the issues conference to allow further negotiations to occur. Therefore, at the conclusion of that day's session, the ALJ held open the issues conference record to allow the possibility of reconvening the issues conference in the event the negotiations were unsuccessful or not complete.
After two months of negotiations, Applicant voluntarily agreed to several revisions to draft permit conditions and new permit conditions. Revised special condition #4 clarifies that material processing will be limited to a dry screen having a maximum rated capacity of 150 tons per hour; and that no material will be imported to the site for processing. Special condition #6 has been revised to require that Applicant adopt and implement a Best Management Plan to address any fuel leaks from equipment on site. Special condition #12 has been revised to require that traffic patterns at the site will be designed to minimize the necessity for trucks to back up. Special condition #17 has been revised to require Applicant to develop a Best Management Plan to address dust control. New special condition #21 states that "[s]inage shall be posted at the exit from the mine to public roads, reminding haul trucks that they must comply with all DOT regulations." New special condition #22 states that "[T]he permittee shall plant conifer trees at the following locations: 1) adjacent to the berm opposite the intersection between County Route 70 and Johnny Cake Hollow Road and 2) adjacent to the berm south of the proposed mine. Such trees may be removed once the mine has been reclaimed." Applicant also agreed to supplement its permit application by preparing and circulating to the parties, the plans required under the revised and new draft permit conditions. These documents were circulated prior to the September 5, 1996 issues conference, and were discussed during the conference.
Nonetheless, by letter dated July 29, 1996 the Alliance summarily stated that it is not possible to settle this matter. Attached to that letter is a two-sentence letter dated July 25, 1996, from Alliance Chairperson Burton J. Diamond addressed to the ALJ, which states:
"After due consideration of the issues involved and the facts presented, the Mid-Hudson Preservation Alliance, Inc., does not believe it is possible to settle this matter. The Alliance wishes to proceed with the Issues Conference and will not agree to a mediated settlement."
At the ALJ's request, the Alliance confirmed its position by letter dated August 14, 1996, that despite the revised and new permit conditions proposed and Applicant's commitment to prepare and circulate the newly required plans during the issues conference process, no issues had been narrowed or eliminated as a result of the lengthy settlement negotiations.
Applicant circulated the proposed plans by letter dated August 13, 1996. A continuation of the issues conference was held on September 5, 1996 at the Pine Plains Town Hall. During that session, Applicant explained that it agreed to the revised and new permit conditions and agreed to prepare and circulate the plans with the intention that this additional information would improve the permit application, hopefully eliminating the possibility of adjudication. Following discussion during the September 5, 1996 issues conference, Applicant revised the planting plan, fugitive dust Best Management Plan and description of proposed sinage to accommodate additional concerns of the Alliance.
Following the September 5, 1996 session, the record was held open to allow specified further filings, including Applicant's revision of the planting plan, fugitive dust Best Management Plan and description of proposed sinage, Alliance comments on the Best Management Plans (to be provided by its hydrology expert, Dr. Michalski, who was not available on September 5, 1996), responses by Applicant and Staff to the Michalski comments and Staff's circulation of a revised draft permit, incorporating the revisions described above. The stenographic record of the proceedings was received by the ALJ by September 19, 1996. The issues conference record was closed upon receipt of those filings, on October 2, 1996.
I. The Negative Declaration
The Department is lead agency for purposes of SEQRA review. On June 16, 1995 Department Staff issued a negative declaration (Notice of Determination of Non-Significance) for this project. The Alliance makes several arguments in support of its thesis that Staff improperly issued the negative declaration and that this project requires preparation of an environmental impact statement. The Alliance asserts that Staff failed to comply with the procedural requirements of SEQRA, failed to take a "hard look" at potential environmental impact and provide a reasoned elaboration of its determination, failed to consider cumulative impacts and that Staff improperly segmented environmental review of the project.
For reasons discussed at greater length below, the Alliance's SEQR issues are rejected. Following its May 1993 initial application for a mining permit, Applicant filed a new permit application in June 1994. Applicant's new permit application reduced the scope of the project by more than half and reduced the volume of material to be extracted by almost 66%. Although it is undisputed that the project is a Type I action, it is a phased project and the draft permit requires that no more than seven acres of the 24-acre project proposal will be disturbed at any one time. This is a relatively small mining project. Further, a five-acre unreclaimed mine currently exists at the project site, which pre-dates legal requirements for reclamation. One benefit of the permit application is that this disturbed area would also be reclaimed.
The appropriate standard of review of a negative declaration by an ALJ is very narrow, limited to determination of whether the negative declaration is irrational or otherwise effected by error of law. 6 NYCRR 624.4(c)(6)(i)(a). In this instance, the negative declaration issued by Department Staff is not irrational or otherwise effected by an error of law. Regarding the SEQRA "hard look" requirement, Staff considered most of the issues raised by the Alliance and provided a reasoned elaboration of its determination that the potential impacts do not require preparation of an EIS, as explained below. Lastly, the Alliance's arguments on segmentation and cumulative impacts are rejected, as explained below. Therefore the Alliance's request for rescission of the negative declaration must be rejected.
Following is a detailed discussion of the Alliance's primary issues regarding rescission of the negative declaration.
B. Timeliness of SEQRA Determination of Significance
The Alliance maintains that Department Staff violated SEQRA because it failed to make a timely determination of significance for this project.
6 NYCRR 617.6(c)(2) requires that,
"[t]he lead agency shall determine the significance of the action within 20 calendar days of its establishment as lead agency or within 20 days of its receipt of all information it may reasonably need to make the determination of significance, whichever occurs later, and shall immediately file the determination in accordance with section 617.10 of this Part."
The Alliance contends that Staff committed an error of law in processing this permit application. Applicant submitted the initial (49-acre project) permit application to Staff in May, 1993. The Alliance asserts that Staff violated 6 NYCRR 617.6(c)(2), because it did not issue the determination of non-significance/negative declaration until almost one year after it became lead agency. 617.6(c)(2) requires a determination of significance within 20 days of establishment of lead agency or within 20 calendar days of the lead agency's receipt of all information it reasonably needs to make the determination. The Alliance maintains that Staff did not send letters concerning lead agency status to involved agencies until July 1994. Therefore, the Alliance concludes that because this project was pending before the Department for more than a year absent a determination of significance, Staff violated the procedural requirements of SEQRA.
Staff explained that Applicant filed an initial permit application in May 1993 (proposing a 49-acre project). Then, Applicant commenced a new permit process on June 14, 1994 with the filing of a new Environmental Assessment Form ("EAF"). The new application described the currently proposed 24-acre project. Staff never deemed the initial application complete, nor issued a permit. Therefore, Staff argues that with respect to the initial permit application, it never had all information it reasonably needed to make the determination of significance, a necessary element of the 6 NYCRR 617.6(c)(2) requirement cited by the Alliance.
Ruling #2: No issue is presented regarding timeliness of the SEQRA determination of significance.
C. "DeFacto" Conditioned Negative Declaration
A conditioned negative declaration is a negative declaration issued by a lead agency for an unlisted action in which the action as initially proposed by the applicant may result in one or more significant adverse environmental effects. However, mitigation measures identified and required by the lead agency would modify the proposed action so that no significant adverse environmental impacts will result. 6 NYCRR 617.2(h). That is, the lead agency's negative declaration is conditioned upon applicant's acceptance of the mitigation measures identified by the lead agency.
The parties do not dispute this project is a Type I action under SEQRA, meaning a presumption exists that the project is likely to have a significant effect on the environment and may require an environmental impact statement (6 NYCRR 617.12This project is governed by the SEQRA regulations in effect from June 1, 1987 through December 12, 1995.); nor that under the Department's mining law, this project is a "major action". See, ECL 23-2711(3)(c). Further, the Alliance emphasizes that the Court of Appeals has characterized the EIS process as the heart of SEQRA. Matter of Jackson v N.Y.S.U.D.C., 67 N.Y.2d 400, 415 (1986). However, while this may be correct, these characterizations of the project and the SEQR process do not necessarily mandate preparation of an EIS for the present permit application. Such determinations must be made on a case-by-case basis. For example, see, Shawangunk v. Planning Bd. of the Town of Gardiner, 157 A.D.2d 273, 557 NYS2d 495 (3rd Dept. 1990); and Soule v Town of Colonie, 95 A.D.2d 982 (3rd Dept. 1983).
The Alliance asserts that Staff required certain permit conditions to make the project acceptable to Staff, resulting in the current 24-acre proposalThe terms of the draft permits dated February 15, 1996 (Ex. 4) and September 27, 1996 were not considered in my review of Staff's determination to issue a negative declaration, but are taken into account in my consideration of the Alliance's other proposed adjudicable issues. . The Alliance asserts this amounts to the functional equivalent of a conditioned negative declaration (a "defacto" negative declaration). Merson v McNally, __ A.D.2d __, 643 N.Y.S.2d 129, 1996 WL 280597 (2nd Dept. May 13, 1996). See 6 NYCRR 617.6(h)(1). In support of its position that this negative declaration is a de facto negative declaration, the Alliance relies upon text of the negative declaration: "The mining proposal has been reduced from 49 acres to 24 acres in order to reduce environmental impacts." The Alliance asserts that the recognition of the initial 49-acre proposal in the negative declaration shows that this is a single permit application, and that conditions imposed by Staff in the draft permit (Ex. 4) amount to conditions upon which the negative declaration was predicated.
6 NYCRR 624.4(c)(6)(i)(a) provides that when the Department is the lead agency,
"As part of the issues ruling, the ALJ may review a determination by staff to not require the preparation of an environmental impact statement. Where the ALJ finds that the determination was irrational or otherwise affected by an error of law, the determination must be remanded to staff with instructions for a redetermination. In all other cases, the ALJ will not disturb the staff's determination."
Applicant and Staff assert that a conditioned negative declaration may only be issued for an unlisted action, whereas this is a Type 1 action. Mr. Steidle explained that Staff made reference to the initial 49-acre proposal in the negative declaration in recognition of the fact that the permitting process is a continuing review process. Nonetheless, Applicant withdrew its initial permit application and commenced a new application process in June 1994. Applicant and Staff assert that the negative declaration here is not conditional; therefore, the determination of non-significance can not be a conditioned negative declaration. That is, the negative declaration was not conditioned upon Applicant's acceptance of permit conditions to mitigate anticipated environmental impacts.
The Alliance cites several cases in support of its contention that the negative declaration is a de facto conditioned negative declaration. Following is a discussion of the primary cases cited by the Alliance. Shawangunk, supra; Merson, supra. In Shawangunk, the Court held that the issuance of a negative declaration for a 253-acre residential subdivision violated both the letter and spirit of SEQRA and was at best equivalent to a conditioned negative declaration. Shawangunk, supra, 275-276. The Alliance seems to assert that because the EIS threshold is low for Type I actions, an EIS is required for all such actions. However, the Shawangunk Court, in reversing the negative declaration, made clear that "we do not necessarily imply that in any Type I action mitigating measures incorporated into a proposal may never justify a negative declaration." Shawangunk, supra, 277. In Shawangunk, the mitigation did not substantially reduce the scope of the 253-acre project, whereas, in the present matter the current project is substantially reduced in scope as compared to the initial project.
In Merson, the Town of Philipstown Planning Board granted preliminary subdivision approval for a 37-lot single family residential subdivision. Subsequently, the applicant sought a temporary special use permit for mining and reclamation, resulting in the abandonment of eight single-family-home lots that had been previously given preliminary subdivision approval. The Planning Board issued a negative declaration, concluding that this Type I project would not have significant environmental impacts, and thus an EIS was not required.
The Court found that inherent in the Planning Board's determination was a recognition of significant environmental impacts posed by the project and that the numerous measures proposed by the Board in mitigation of these impacts were conditional prerequisites for the issuance of the negative declaration. The Court concluded that "[u]nder these circumstances . . . the Planning Board's negative declaration was the functional equivalent of a conditioned negative declaration" (citations omitted; emphasis supplied). Merson, 643 N.Y.S.2d at 131. The proposed mitigation in Merson did not substantially reduce the scope of the project. However, the Stissing project is substantially reduced in scope from the initial permit proposal.
One factor common to the Merson and Shawangunk decisions was a determination by the respective courts that mitigation did not substantially reduce the scope of the project. This led the courts in Merson and Shawangunk to conclude that the negative declarations were essentially de facto conditioned negative declarations. In contrast, the facts in the present case establish that the scope of the proposed project has been substantially reduced from Stissing's initial permit application. The Stissing project is much smaller than that in Shawangunk; the project is phased, and no more than seven acres would be disturbed at any one time. In the present matter, a new permit application was filed in June 1994, which reduced the scope of the project substantially by more than half, from a 49-acre project to a 24-acre project. It also and reduced the volume of material to be extracted to just over a third, from 1,700,000 cubic yards to 600,000 cubic yards. Therefore, Shawangunk and Merson are inapposite in this matter.
Ruling #3: This action is limited to the 24-acre project currently proposed. 6 NYCRR 617.3(k)(1). There is no dispute that this project is a Type 1 action under SEQR and is a major project under the MLRL. However, while these factors create a presumption that an EIS should be prepared, they do not require an EIS in all such circumstances. Inevitably, lead agencies must evaluate proposed projects on a case-by-case basis. This is a relatively small mining project, proposed to be implemented in four phases, with no more than seven acres to be disturbed at any one time. Further, the project will result in complete reclamation of the site.
A review of the negative declaration shows that Staff properly considered potential environmental impacts before making its determination of non-significance. The determination of negative declaration is not irrational or otherwise effected by error of law. Therefore, the Alliance's request for rescission of the negative declaration is denied.
The Alliance makes three segmentation arguments. First, The Alliance asserts that the negative declaration should be rescinded because segmentation can only be properly addressed under SEQRA. See, 6 NYCRR 617.3(k)(1) [Considering only a part or segment of an action is contrary to the intent of SEQR . . . ] The Alliance maintains that nothing prevents Applicant from mining the 24 acres currently under consideration, then later applying for a permit to mine the other 25 acres comprising the initial 49-acre proposal. Essentially, the Alliance asserts that because Applicant initially proposed a 49-acre project which was later reduced in scope, this indicates Applicant's present intent to go forward at a later date with a plan to mine the additional 25 acres contemplated in the initial permit application. Staff and Applicant maintain that a new permit application process was initiated with Applicant's filing of a new Environmental Assessment Form on June 10, 1994, and that Applicant has withdrawn the initial 49-acre proposal. While the facts relied upon by the Alliance could support a conclusion of improper segmented review, such a conclusion is speculative based upon these facts alone.
Second, the Alliance has identified several other parcels of land in the area, purportedly owned by principals or interested persons in the present project that the Alliance speculates will be the subject of future mining permit applications. The Alliance asserts these sites should be evaluated under an environmental impact analysis for the current project. The Alliance cites Teich v Buchheit, 633 N.Y.2d 805 (2d Dept. 1995), in which the court found that the lead agency conducted an improper segmented review because the record established that the proposed project was an integral part of a long-range development. The Alliance also cites Farrington Close Condominium Bd. of Managers v Inc. Village of Southampton 205 A.D.2d 623 (2d Dept. 1994), in which the Court held that the lead agency conducted an improper segmented review by failing to consider the applicant's ultimate development plans. The Court found that the Farrington lead agency determined without elucidation that a negative declaration was warranted. Farrington, supra, 626. However, the current record does not support a finding of any such long-range development plans or conclusory negative declaration. Therefore, neither Teich nor Farrington are applicable to the present permit application.
Lastly, the Alliance asserted that Staff improperly sought to defer potential impacts of use of a dry screen or other processing equipment that would require a departmental air pollution permit, improper segmentation. The Alliance maintained that Staff held that if an air permit is necessary, Applicant could apply for it later. However, 6 NYCRR 201-3.2(29)(ii) Revised 6 NYCRR Part 201, effective March 20, 1996. creates an exemption from permitting for all processing equipment at sand and gravel mines or quarries that are mobile portable installations with the maximum rated processing capacity of 150 tons of minerals per hour or less. This potential issue and the Alliance's related air pollution regulation issues were resolved at the issues conference, when Applicant agreed to revision of draft permit special condition #4, to limit the capacity of any dry screening equipment to a maximum rated hourly capacity not to exceed 150 tons per hour. See, Draft Permit (dated September 27, 1996), Special Condition #4.
Ruling #4: Absent any additional facts supporting the Alliance's theory that Applicant presently plans to mine the additional 25 acres, the Alliance's proposed segmentation issue remains speculative and therefore is not adjudicable. The Alliance's request for rescission of the negative declaration is denied.
E. Cumulative Impacts
The Alliance maintains that cumulative impacts of the nearby Giardina mine and the current project must be evaluated under SEQRA. The Giardina mine has been operating for approximately five years. The Alliance notes that the Giardina life of mine has exceeded that predicted by the operator of the mine, by a factor of three, and asserts that this is newly discovered information requiring recision of the negative declaration. 6 NYCRR 617.8(g)(iii).
During the issues conference, Mr. Steidle explained that Staff evaluated potential cumulative impacts of the Giardina mine and the proposed project. The negative declaration states that,
"[c]umulative impacts with the existing Giardina mine located approximately one half mile to the north of the existing pit on the Stissing Valley property were considered. Due to topography and vegetation, there are no nearby viewpoints from which both sites can be seen. Cumulative noise impacts will not occur due to separation distance and the limited number of receptors. Additionally, the receptors for each site are different."
Negative Declaration, DEC No. 3-1342-38/1-0, Paragraph 12 (issued June 16, 1995).
Regarding potential cumulative noise impacts, for example, Mr. Steidle explained that Staff's evaluation included site inspections, walking the boundary or close to the boundary with the residential Ginocchio property, driving the area around the site to look at other residences and going into the Giardina mine.
Finally, as mentioned above, the Alliance has obtained copies of deeds for several other parcels of land in the Town of Pine Plains purportedly owned by the principals of Stissing Valley Farms, Inc. The Alliance speculates without any factual basis that these other properties will be the subject of additional mining permit applications by Stissing Valley Farms, Inc. or its principals; and therefore, a cumulative impact analysis for the present project should address future mining at these additional properties.
Ruling #5: The Alliance's assertion that the extended Giardina life of mine is "newly discovered information" requiring recision of the negative declaration must be rejected. The record establishes that Staff's evaluation of potential cumulative impacts of the proposed project and the Giardina mine accounted for the Giardina mine's extended life of mine. The Alliance's cumulative impacts argument related to other parcels purportedly owned by the principals of Stissing Valley Farms, is factually unsupported and is rejected.
F. Hard Look and Reasoned Elaboration
The Alliance asserts that Staff failed to analyze thoroughly the identified relevant areas of environmental concern to determine if the action may have a significant effect on the environment, as required by 6 NYCRR 617.6(g)(2)(iii). This has been described in the caselaw as requiring the lead agency to take a "hard look" at potential environmental impacts of the project. H.O.M.E.S. v N.Y.S.U.D.C., 69 A.D.2d 222 (4th Dept. 1979). Further, the Alliance asserts that Staff failed to provide a "reasoned elaboration" for the basis of its negative declaration determination. H.O.M.E.S., supra.
In my review of the negative declaration, I find that Staff's determination was proper and adequately considered environmental impacts reasonably expected to result from this project. Department Staff considered most of the issues raised by the Alliance and provided a reasoned elaboration of its determination that the potential impacts are not sufficiently significant to require preparation of an EIS. Those impacts considered by Staff and addressed in the negative declaration include impacts of the project upon Shekomeko Creek, and an unnamed tributary thereof, groundwater quality, drainage, freshwater wetlands (Staff identified none on the site), noise, dust, odors, impacts on surrounding land use including impacts on agricultural resources, visual impacts, traffic impacts, cultural resources, wildlife, recreation, open space, public health, community character and cumulative impacts with the existing Giardina mine (located approximately mile to the north of Applicant's existing mine pit). Negative Declaration (issued June 16, 1995).
Ruling #6: The Department has taken the necessary "hard look" at potential environmental impacts and has provided a sufficient reasoned elaboration for the negative declaration determination. Therefore, the Alliance's request for rescission of the negative declaration is denied.
In conclusion, any potential impacts are mitigated by the mining plan and the limited scope and duration of this project. (I note that the project has been refined considerably in the course of this permit hearing process.) The negative declaration issued by Department Staff is not irrational or otherwise effected by an error of law. Therefore, the Alliance's request to rescind the negative declaration must be denied.
II. Proposed Adjudicable Issues
In its petition, the Alliance proposes several issues that it asserts must be addressed through the SEQR/EIS process. However, the Alliance also asserts that even if the negative declaration is not rescinded, these issues should be the subject of adjudication because the proposed issues are substantive and significant. 6 NYCRR 624.4(c)(2) and (3). Following is a discussion of the Alliance's proposed adjudicable issues.
A. Setback Variance and TAGM #MN95-2MLR
The Alliance has asked Applicant and Department Staff for a greater setback from the mine face along Route 70, where several private residences are located. The Alliance claims that Applicant must obtain a variance from certain setback requirements, pursuant to Departmental TAGM Technical and Guidance Memorandum #MN95-2 MLR (issued October 18, 1995). By letters dated October 18, 1995 and November 3, 1995 (Steidle to Budnik), Staff directed Applicant to apply for a variance from setback requirements set forth in TAGM #MN95-2 MLR. Applicant concedes it has not applied for a setback variance. However, Applicant's and Staff's position at the issues conference was that no variance is required for this project.
At the issues conference, Staff stated that the existing TAGM is incorrect, requiring clarification. Staff explained that the Division of Mineral Resources intends to rescind the current TAGM and will issue a new TAGM in the near future. A Notice of Availability for Comment of TAGM #MN96-1 MLR, a draft revised TAGM intended as a clarification of setback requirements, appeared in Environmental Notice Bulletin issue #32, August 7, 1996. Following close of the issues conference record, final TAGM #MN96-1 MLR was issued by the Division of Mineral Resources on October 11, 1996. TAGM #MN96-1 MLR supersedes TAGM #MN95-2 MLR. Dr. Budnik provided an off-the-record interpretation of the existing TAGM and intended revised TAGM, based upon his conversations with NYSDEC Division of Mineral Resources Director Gregory Sovas. Exhibit 5, marked for identification, a five-page document that is part of the record, was provided by Dr. Budnik in aid of his interpretation of the TAGM. Staff agreed with Dr. Budnik's interpretation of the TAGM and its proposed revision, as represented in Exhibit 5.
For mining of unconsolidated material, TAGM #MN95-2 MLR states
"[s]etback requirements are 25.0 ft. plus 1 times the height of the mine face (undisturbed buffer). For example, if the mine face is 80.0 feet, the setback must be 25 feet + 1 x 80.0' or 25.0 + 120.0 feet = 145.0' (undisturbed buffer)."
TAGM #MN95-2, page 2 (issued October 18, 1995). See, also, Exhibit 5, Figure A (excerpted from TAGM #MN95-2 MLR); attached hereto as "Attachment A".
Staff stated that TAGM #MN95-2 MLR requires clarification in that the TAGM is unclear whether the mine slope may begin at 25 feet from the adjacent property or easement, or in the alternative, whether the mine slope cannot begin closer than "25.0 ft. plus 1 times the height of the mine face." Staff said that the intended revision of the TAGM, in progress, will clarify that the former interpretation is correct. Staff explained that under this interpretation of the TAGM, a variance application would be necessary only if a mining permit applicant intended to mine an area below the mine face described in Figure A -- i.e., the area defined by vertical lines. Attachment A. The Alliance asserts that under the present TAGM, the latter interpretation must apply, and that Applicant must obtain a variance if it proposes a mine slope beginning at 25 feet from the adjacent property or easement. Staff and Applicant said that no other unconsolidated mining project in the state has been required to comply with the setback standard advocated by the Alliance.
Ruling #7: Department Staff issued the TAGM #MN95-2 MLR guidance document. Staff now recognizes the document contains error requiring clarification. The TAGM is not a promulgated rule, but instead a document intended to provide guidance in applying regulatory requirements to specific projects. Department Staff may revise the TAGM based upon information, recently brought to Staff's attention, that the TAGM requires clarification. Staff has begun the process of revising the TAGM, as shown by the ENB Notice of Availability for Comment. At this point, it would be elevating form over substance to follow the existing erroneous guidance. Therefore, I find that Applicant's explanation of the TAGM error represented in Exhibit 5, with which Staff concurs, is the appropriate setback standard applicable to this permit application. In any event, the underlying issue appears to be noise setback, which is addressed separately, below.
B. Visual Impacts
The Alliance raises two issues regarding visual impacts: that the Town of Pine Plains has designated County Route 70 a scenic road, and therefore mining should not be allowed; and that the permit application proposes inadequate visual screening of the mine. However, the Alliance concedes that local zoning does not prohibit the proposed project.
With respect to the scenic roads issue, Applicant states that the area has been a mine for at least thirty years without benefit of permit, and the mine site pre-dated the Town's scenic road designation. Applicant concludes that since the existence of the mine did not prevent the Town's scenic road designation initially, the proposed phased mining project and reclamation should not adversely impact that designation. Further, Applicant's mining plan mitigates visual impacts by providing that land reclamation will occur concurrently with mining of subsequent mining phases. The successive draft permits, which Applicant has accepted, limit to seven acres the maximum area being mined or disturbed any time during the life of mine.
Regarding visual screening, Applicant agreed to revision of the draft permit to require a planting plan, and further supplemented its application with a proposed planting plan. Exhibit 9. This planting plan was developed largely upon the recommendations of the Alliance's proposed expert landscape architect.
Department Staff commented on the proposed plan, making four suggestions: that Applicant agree to replace any trees which do not survive during the life of the mine; that Applicant agree not to place Eastern White Pine on the roadways since they are susceptible to salt damage; that Applicant agree not to utilize American Arborvitae, since it is susceptible to deer feeding and wind damage; and that Applicant agree to use Norway Spruce instead of American Arborvitae and Eastern White Pine, although Norway Spruce is not a native plant to the area. During the issues conference, Applicant accepted these revisions to the planting plan.
The Alliance summarized its proposed expert's comments on the planting plan as recommending that a third planting area be installed at either end of the access road along the outer toe of the berm to screen views from County Route 83; the screen of planted trees would be more effective if the row is planted in an offset pattern (zigzagged). The Alliance stated it was not seeking an increase in the number of trees, but only that the plantings be offset rather than in one line. Applicant responded that it would submit a further proposal to Staff, and would defer to Staff's evaluation of the submittal.
The Alliance also recommends screening of a viewpoint along County Route 83 that is not presently contemplated. However, Dr. Budnik stated the site identified by the Alliance was less valuable as compared to other viewpoints that will be screened, and additionally, screening the site would introduce traffic safety concerns along that portion of the roadway.
Ruling #8: No adjudicable issue exists regarding visual impacts. Applicant has agreed to modify the planting plan in several respects to accommodate concerns of Department Staff and the Alliance expressed during the September 5, 1996 issues conference. In fact, the planting plan is based substantially upon the Alliance's proposal.
The Alliance does not dispute Dr. Budnik's characterization that the County Route 83 viewpoint is less valuable than other viewpoints that will be screened nor that screening this viewpoint will introduce traffic safety concerns along that road. Regarding impacts of the project on scenic roadway County Route 70, there is no dispute that the project is consistent with local zoning. Additionally, the project is phased and will ultimately result in complete reclamation of the site. The Alliance's proposed visual impact issues do not rise to the level of substantive and significant issues requiring adjudication.
C. Noise Issues
The Alliance proposed several areas of concern regarding noise, including that Applicant has overstated sound attenuation; Applicant has not proposed adequate noise mitigation; Applicant failed to adequately consider the proximity of the mine to residences; and that the standard for noise measurement set forth in 6 NYCRR Part 360 and guidance issued pursuant thereto, should apply to evaluation of noise impacts from the proposed project. The Alliance maintains that Departmental authority for evaluating noise issues derives from its authority under SEQRA - - i.e., that the negative declaration should be rescinded and potential noise impacts addressed in an environmental impact statement. Since this ruling does not rescind the negative declaration, potential noise issues proposed by the Alliance are not adjudicable issues under SEQRA.
In the alternative, the Alliance asserts noise impacts are substantive and significant issues under the Mined Land Reclamation Law. 6 NYCRR 422.2(c)(4)(i) requires that noise control may be provided through the utilization of equipment which is adequately muffled to prevent excessive noise and through the use of screening for control of noise. 6 NYCRR 422.2(c)(4)(i). Facts in the record establish that potential noise impacts will be reasonably controlled consistent with this regulatory standard. The negative declaration states there are no sensitive noise receptors such as schools or hospitals in proximity to the site, and the nearest residential receptor is 250 feet from the northern edge of the mine and 1200 feet from the processing plant location. Draft Permit special conditions 11 and 12 address potential noise impacts. Special condition 11 prohibits all activities associated with the mine from occurring on Saturdays, Sundays and holidays. Weekday operation is prohibited before 7:00 a.m. and after 6:00 p.m. Additionally, haulage trucks are prohibited from entering the site prior to 7:00 a.m. or leaving the site prior to 7:30 a.m.
Special condition 12, as modified by Applicant during the issues conference, requires implementation of the traffic plan (Ex. 10), and use of alternative infra-red back up alarms or similar technology, thereby eliminating use of back up beepers normally required by the federal Occupational Safety and Health Administration. Additionally, berms along most of the perimeter of the site and plantings required by the planting plan will also contribute to attenuation of potential noise impacts from the project by reflecting noise away from adjacent residences. These are commonly accepted techniques in mining design to mitigate noise impacts.
Ruling #9: Since this ruling does not rescind the negative declaration, potential noise issues proposed by the Alliance are not adjudicable issues under SEQRA. In any event, facts in the record establish that noise impacts will be reasonably controlled by the proposed mitigating measures. No issue for adjudication is presented regarding noise impacts.
D. Fugitive Dust
The Alliance asserts that Applicant's analysis of particulates emissions is inadequate. Essentially, the Alliance is concerned about potential fugitive dust particulates emissions associated with transport of material and commercial roadway traffic resulting from the mining operation. In the time between the May 1996 and September 1996 issues conference sessions, Applicant agreed to supplement its application with a fugitive dust Best Management Plan. The resulting plan, dated August 7, 1996, was provided to the other parties prior to the September 5, 1996 issues conference. Exhibit 8. During the issues conference, Applicant agreed to revise the plan to require that Applicant retain a company to be on call to spray water as needed for dust control. Draft permit special condition #17 has been revised to incorporate the Fugitive Dust Best Management Plan. Draft Permit special condition #17 (dated September 27, 1996). Further, Applicant clarified that it would apply only water sprays, not chemical sprays.
Ruling #10: The revised draft permit supplemented with the Fugitive Dust Best Management Plan adequately addresses dust control. No adjudication is required regarding air pollution control issues.
The Alliance raises several proposed issues regarding traffic safety, citing In the Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995. The Alliance retained Resource Systems Group, Inc., Kenneth Kaliski, Area Director, to prepare a review of traffic, noise and air impacts of the proposed project. Petition Exhibit B. Mr. Kaliski concludes that Applicant's review of traffic impacts for the project is inaccurate and deficient.
More specifically, Mr. Kaliski asserts that Applicant reported eight year old traffic data for County Route 83 and no data for County Route 70, inadequate data to verify project related traffic impacts on surrounding roadways; Applicant compared stopping sight distance measurements to 30 mph standards, although the speed limit in the area is 55 mph; Applicant omitted measuring corner sight distances (measurements by Resource Systems Group, Inc., of corner sight distances at the driveway intersection are below N.Y.S. highway standards, and will slow traffic on County Route 83 by 50 mph). The Alliance seeks an acceleration lane for trucks exiting the project onto County Route 83; left turn sight distances at the intersections of County Route 83/County Route 70 and County Route 70/Johnny Cake Hollow Road are below N.Y.S. standards, indicating that fully loaded trucks do not have adequate visibility to safely make a left turn at those intersections; road widths in the area are only 18 to 20 feet wide, inadequate for a high volume of truck traffic and not consistent with AASHTO American Association of State Highway and Transportation Officials. standards for high speed roads; and no accident assessment has been provided by Applicant to determine whether there are any existing geometric deficiencies that would be worsened by the proposed project.
Applicant responds that timely comments on this project from Dutchess County Public Works are limited to a cursory letter which noted in part that Applicant must demonstrate compliance with required sight distances and that there were some restriction of stopping and turning sight distances. Letter dated July 25, 1994 (Schneider to Steidle). As discussed below, Dutchess County Public Works commented further in response to this administrative hearing process.
Staff's position on traffic issues is that Applicant must satisfy Dutchess County Public Works, the agency with jurisdiction over the roads at issue, in a separate local permit process before that agency. Staff essentially defers to Dutchess County Public Works on these issues. Although the Alliance raises potentially substantive and significant traffic safety concerns, for reasons explained below, Staff's position is correct.
Prior to the September 5, 1996 hearing session, Transportation Concepts, LLP, sent the ALJ a traffic impact analysis for the proposed project (dated July 29, 1996)The issues conference transcript incorrectly indicates that this document was marked as Exhibit 16, for identification. Exhibit 16 is a Departmental memorandum dated August 18, 1994 (Kerpez to Steidle). The Transportation Concepts report (dated July 29, 1996) was accepted into the issues conference record, but was not marked for identification.. Since Transportation Concepts, LLP, is not a participant in the issues conference proceeding, this communication with the ALJ was improper. The report states that Transportation Concepts prepared the report for the Mid-Hudson Preservation Alliance, but was not submitted by counsel for the Alliance. Moreover, Transportation Concepts, LLP gave no indication that it provided copies of the report to the other issues conference participants. The ALJ distributed this report to the issues conference participants, to be addressed during the issues conference.
At the September 5th hearing, counsel for the Alliance clarified that the report was not in fact prepared for the Alliance, but instead was prepared at the request of an Alliance member, Denis Hingston, acting individually. Nonetheless, the Alliance sought to adopt and make part of the record this traffic impact analysis, as a supplement to its petition. Over the objections of Applicant and Staff, this technical analysis was accepted into the issues conference record because it supports the proposed traffic issues already identified by the Alliance in their filing.
Following the close of the comment period for this project, this Office received letters from Dutchess County Department of Planning and Development Commissioner Roger P. Akeley (letter of June 21, 1996) and Dutchess County Public Works Director of Engineering Joseph W. Grogan (dated June 19, 1996). The Akeley letter is a late comment on the project. Commissioner Akeley, speaking in his individual capacity, made a statement at the May 28, 1996 legislative Hearing in which, he identified himself as a local resident living approximately 2000 feet from the mine. His letter of June 21, 1996 is largely repetitive of what he stated then, although presented now with the additional authority of his agency's letterhead.
Applicant maintains that the Akeley letter represents an improper attempt by a government employee to use the power of his office to further his personal position on this project as if it were the position of his agency. Aside from the Applicant's criticism of this letter, it was filed late and does not add to Commissioner Akeley's verbal statement. Therefore, the Akeley letter is given no weight in rendering these rulings.
By contrast, the Grogan letter, although also a late comment, provides substantive information from the agency with jurisdiction over the roads at issue, Dutchess County Routes 70 and 83. Applicant concedes that although the Grogan letter was sent after the close of the comment period, Applicant will work with Dutchess County Public Works to satisfy the agency's concerns. Nonetheless, it is critical to my ruling on proposed traffic safety issues that Dutchess County Public Works has not sought to intervene in this proceeding. Beyond the current permit application, Stissing Valley Farms, Inc., also requires a local permit from Dutchess County Public Works for this project. Presumably Dutchess County Public Works will address its traffic safety concerns to Applicant that permit process.
Following Applicant's written response to the Grogan letter, Director of Engineering Grogan sent a second letter dated August 6, 1996 criticizing the filing of Applicant's consultant as having mischaracterized Grogan's position on several issues. Grogan's clarifications included that the County cannot ban the use of County Routes 70 and 83 by truckers from various other mines and other industries; that sight distance restrictions his agency is concerned with are not within the County's right-of-way; and that concerns raised by Dutchess County Public Works cannot be corrected by road maintenance by the County or the Town of Pine Plains, or by relocating the project access road to Route 70. Nonetheless, although obviously upset with the Applicant's mischaracterization of traffic concerns identified by his agency, Director Grogan did not seek to intervene in the current proceeding.
In Matter of Dailey, the Commissioner said that "[t]he fact that other agencies may have independent obligations to analyze the potential impacts of the facility has no bearing on DEC's own obligation, as lead agency, to analyze the existing areas of environmental concern (citation omitted)." Dailey, supra at 3. The Alliance asserts this principle should apply in the present matter, resulting in adjudication of the proposed traffic issues, if not rescission of the negative declaration. However, in Dailey, the the issue arose in the context of SEQRA review of a draft EIS. In the present matter, since this ruling does not rescind the negative declaration, no EIS is required and therefore Dailey is not applicable.
Nonetheless, by way of clarification, in Dailey the Commissioner stated that in the context of review of a draft EIS, where the agency with jurisdiction over the roads at issue chose not to apply for party status, no adjudication is warranted. Dailey, supra at 3, citing Matter of Wilmorite, Inc., at 4 (Interim Decision, October 7, 1981 The Dailey Interim Decision erroneously cites the date of this decision as 1988.). Therefore, In Dailey, because the town was prepared to participate in an adjudicatory session over the road for which it has jurisdiction, the Commissioner found an adjudicable issue regarding that road; but because the N.Y.S. Department of Transportation was not prepared to participate in adjudication over the road for which it has jurisdiction, the Commissioner found no adjudication was necessary for the state road. Dailey, supra, 5-7.
The Alliance also asserts that the traffic safety issues may be adjudicated as substantive and significant issues under the mining law and regulations promulgated pursuant thereto. ECL 23-2703(1) and 6 NYCRR 420.2(a) articulates the state's policy to foster and encourage the development of an economically sound and stable mining industry, but also to protect the health, safety and general welfare of the people of the state. However, under this theory as well, no meaningful adjudication could occur absent participation of the agency with jurisdiction over the roads at issue, Dutchess County Public Works.
Ruling #11: The Alliance has articulated serious concerns regarding traffic safety issues. However, Dutchess County Public Works is a necessary party to any meaningful adjudication regarding traffic safety issues of roadways under that agency's jurisdiction, as are the roads at issue in this proceeding. Although Director of Engineering Grogan has commented upon this project, Dutchess County Public Works has not sought party status in this proceeding. Any mining permit that may be issued to Applicant in this matter, does not relieve Applicant from the obligation to obtain any necessary local approvals for the proposed project. Therefore, although I find that the traffic issues proposed by the Alliance articulate serious concerns, these proposed issues are not capable of meaningful adjudication in this proceeding. Nonetheless, Staff is directed to provide Dutchess County Department of Public Works Director of Engineering Joseph Grogan with copies of the Alliance's submissions regarding proposed traffic issues, for his agency's technical review.
The Alliance identified three types of potential impacts regarding hydrology, based upon the report and offer of proof of proposed expert, Andrew Michalski, Ph.D., Michalski & Associates, Inc.: changes in thermal regime of groundwater, subsurface transport of internal sedimentation to the wetland and Shekomeko Creek, and increased risk of contamination of the primary aquifer and well supplying water for the Town of Pine Plains.
Dr. Michalski stated that the primary concern regarding hydrology was that the position of the water table has not been adequately characterized. Draft permit special condition #14 requires a minimum five-foot buffer of undisturbed material be maintained above seasonal high groundwater elevation at all locations. This potential issue was resolved during the issues conference. During the May 29, 1996 issues conference session, Staff altered its position and made a technical recommendation for placement of three piezometers at the site to aid in groundwater characterization. Applicant agreed to this additional requirement, which has been included in revised draft permit condition #14 (Draft Permit dated September 27, 1996). On this basis, the Alliance withdrew proposed issues related to water table and aquifer analysis. Tr. 176 through 179. Therefore, the Alliance's primary concerns regarding hydrology have been addressed.
Regarding well head protection, the Alliance asserts that the proximity of the proposed mine to the Wellhead Management Area and Secondary Management Area of the Pine Plains Wellhead Protection Area raises the likelihood that operation of equipment at the site may have significant adverse effects on the water supply for the Town of Pine Plains. The Alliance expressed concern that the draft permit did not adequately address risks of diesel fuel spills. As remedy, the Alliance sought a requirement that Applicant develop a spill and countermeasure plan to ensure prompt response to any circumstance that could result in aquifer contamination.
In response, Applicant agreed to supplement its application with a Fuel and Hydraulic Fluid Best Management Plan (Ex. 7). Draft permit special condition #6 has been revised to require this Best Management Plan. Draft Permit, dated September 27, 1996. This Plan requires that no fuel or hazardous material will be stored at the site, except in standard fuel and oil storage tanks attached to each piece of equipment; fuel will be delivered to the site as needed. Approximate fuel and oil storage capacities for the types of equipment to be used at the site are specified. A fueling protocol is specified, with the intent of preventing spills due to vehicle movement during refueling. A vehicle maintenance protocol is specified, with the intent of eliminating potential sources of leaks and spills. A spill response plan addresses the course of action to be carried out, and specific information to be conveyed to authorities in case of a spill event. Additionally, the Plan recounts that the project is phased and is designed to contain surface drainage on-site.
Ruling #12: In spite of the lengthy negotiation period that occurred following the May 30, 1996 issues conference session, along with the Applicant's supplementation of its application with the Hydraulic Fluid and Fuel Best Management Plan, and many other revisions to the project, the Alliance has taken the position that no issues were eliminated or narrowed as a result of the negotiation process. However, in light of draft permit revisions including installation of piezometers and the Hydraulic Fluid and Fuel Best Management Plan, no hydrology issues require adjudication. Consequently, the Alliance's request for site access on these proposed issues is denied.
G. Wetlands and Endangered Species
The Alliance has submitted a report dated August 10, 1996 prepared by Bagdon Environmental, a division of Novus Engineering, P.C. on potential wetlands and endangered species (the "Bagdon Report"). Bagdon was denied access to the site, but evaluated areas of the site visible from adjacent properties and public roads. Bagdon observed wetland vegetation on both sides of County Route 83 and the presence of soils containing potential hydric inclusions.
Bagdon concludes that New York State Wetland PP-51 may extend onto the site; and if so, this would necessitate changes to the mine plan to ensure that mining does not occur in the wetland or its 100-foot buffer. Bagdon Report, p.2. Mapped Wetland PP-51 is located south of the site, along Shekomeko Creek, across County Route 83. Mapped Wetland PP-12 is closest to the site. PP-12 is located to the south and west of the site, across County Route 83. The wetland map shows that one narrow area of this wetland extends to County Route 83, which separates the site boundary from the wetland. Bagdon also states that the mining plan shows limits of disturbance for the mined area in close proximity to areas that are wetland along Shekomeko Creek and its tributary. Bagdon concludes that confirmation of actual wetland boundaries and exact limits of disturbance are necessary to assure no wetland impacts.
The Alliance cites 6 NYCRR 664.7(b) and In the Matter of William E. Dailey, Inc., (Commissioner's Interim Decision, June 20, 1995), in support of its position that mapped wetland PP-12 is hydraulically connected to wetlands located on the proposed mining property and the two units should be treated as a single wetland. 6 NYCRR 664.7(b) provides that:
"[t]wo or more areas of land and/or water, as defined in paragraphs (a) through (d) of section 24-0107(1) of the act, may be considered to be a single wetland for regulatory purposes if they are determined by the commissioner to function as a unit, or to be dependent upon each other, in providing one or more of the wetland benefits listed in paragraphs (a), (b), (c), (e), (f) and (I) of section 24-0105(7) of the act, and if they are no more than 50 meters (approximately 165 feet) apart. The areas will be included, and labeled as a single wetland, on a map according to the procedures for amending a map set out in subdivision (a) of this section."
The Alliance asserts that wetland benefits include flood and storm control along the Shekomeko Creek; wildlife habitat; protection of subsurface water resources; and recreation. The Alliance concludes that Staff improperly exercised its discretion in treating the two wetland areas separately. Further, the Alliance seeks site access to enable its consultants to provide more specific information for the hearing process, a definitive wetlands study and, as appropriate, possible amendment of the Department's wetlands map.
The Alliance, relying upon the Dailey interim decision, maintains that if it is established that there are jurisdictional wetlands which will be negatively affected, then the regulations foresee the Department asserting jurisdiction prior to any further activity on the site that could harm the wetland. Dailey, supra at 2. ECL 24-0301 and 6 NYCRR 664.7 specify the procedures that must be followed for an area to be added to the official map as a regulated wetland.
Applicant maintains that mapped wetlands PP-12 and PP-51 do not extend onto the site, and that if the Alliance seeks a modification of the officially promulgated wetlands maps for Dutchess County, it must follow established procedures for doing so, by petitioning the Commissioner to reconsider those maps. By letter dated December 23, 1993, Senior Wildlife Biologist Scott Smith determined that the 100 foot adjacent area for mapped wetland PP-12 encroaches approximately 50 feet onto the site, and that Applicant would require a departmental Freshwater Wetlands Permit for any disturbance to that adjacent area. Exhibit 13. In its negative declaration, Staff identified no wetlands on the site.
Lastly, regarding wetlands, Bagdon maintains that no request for jurisdictional review of wetlands on the site has been filed with the U.S. Army Corps of Engineers.
Concerning endangered species issues, Bagdon states only that the site is located within the geographic range of two rare turtle species, the Blanding's turtle (Emydoidea blandingii) and bog turtle (Clemmys muhlenbergii). Bagdon further states that a review of the New York Natural Heritage Program files shows that both species are present within a ten mile radius of the site. The Alliance proposes that Applicant be required to conduct a site survey to identify turtle habitat, and if such habitat is identified on the site, a survey of those areas for presence of the bog or Blanding's turtles.
The Alliance petition also includes the letter of Erik Kiviat, Ph.D., Executive Director of Hudsonia, a non-profit institute. Petition Exhibit F. Dr. Kiviat states that an area adjacent to the site known as Mill Hill is a historic locality for rare plants and may have existing occurrences of rare plants. He also states that many rare plants and animals have been identified in the Stissing Mountain-Pine Plains area, both historically and in the present. In support of his position, Dr. Kiviat cites an historical source dating to the late 1800's, and New York State Museum Bulletin, dated 1958 (which references the earlier source). Dr. Kiviat also mentions the potential for existence of bog turtle habitat in Dutchess County.
Lastly, Dr. Kiviat states that the golden eagle is an endangered species in New York, and that Stissing Mountain has been a golden eagle habitat since the 1970's. He states that the proposed mining area is less than 2.5 miles east of Stissing Mountain, within the foraging range of the golden eagle.
Staff's endangered species expert, Dr. Ted Kerpez, reviewed the project proposal, and expressed no concern regarding the potential presence of endangered species on the site.
Ruling #13: The Alliance has raised a potentially substantive and significant issue regarding the existence of jurisdictional wetlands on the proposed mining site. In Dailey, the Commissioner stated that for purposes of administrative efficiency, the issue of whether regulated wetlands exist on a proposed permit site should be addressed by Staff during the permit hearing process, rather than at a later date in a separate ECL Article 24 proceeding. Dailey, Interim Decision, supra, at 2. This principle applies to the present matter.
However, Bagdon does not state a conclusive opinion that wetlands do exist on the site. Instead, Bagdon's opinion is that, ". . . [t]he area proposed to be mined boarders the eastern edge of the floodplain in the area mapped as Wayland silt loam. Since this area is mapped as hydric soils and contains wetland vegetation visible from the road, it is likely that all or most of the area is wetland". Bagdon Report, p.2. The Alliance has raised sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to the project - - i.e., ECL 24-0301 and 6 NYCRR 664.7 - - such that a reasonable person would require further inquiry to determine the existence of jurisdictional wetlands on the site. 6 NYCRR 624.4(C)(2). Therefore, a potentially adjudicable issue has been raised. If jurisdictional wetlands exist on-site, then an ECL Article 24 permit would be required.
The Alliance's request for site access is granted to allow its further determination of existence of jurisdictional wetlands at the site. In the event its evaluation leads to a conclusion that no jurisdictional wetlands will be effected by the project, then no adjudication will be necessary. However, if the Alliance's evaluation confirms existence of jurisdictional wetlands, then following responses from Applicant and Staff, a further ruling will be issued that will address the Alliance's request for party status, and will possibly require adjudication of this issue.
There is also the question of existence of federally regulated wetlands on the site. As the Commissioner noted in Dailey, regardless of wetland size, federally regulated wetlands may require a federal permit pursuant to 404 of the Clean Water Act. Under the joint federal-state permit process, the Department issues a federal 401 certification for compliance with the Clean Water Act. Whether such a certificate is required here, is also a potential issue for adjudication that will be treated as described above regarding existence of state jurisdictional wetlands. In the alternative, as the Commissioner described in Dailey, the parties could stipulate to wetland boundaries and thereby avoid further adjudication of these issues.
Regarding presence of endangered species on the site, I find that the Alliance's offer of proof is too generalized, and therefore fails. The Alliance has not come forward with a sufficient offer of proof to show that there is a likelihood of finding these species on the project site, such that a reasonable person would require further inquiry to determine the existence of these species on the site. 6 NYCRR 624.4(C)(2).
H. Cultural Resources
The Alliance's primary contention regarding cultural resources is that the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") should have required an on-site survey of archaeological resources, because the site is in close proximity to a circle on the sensitivity map used by OPRHP. OPRHP determined that the proposed expansion of the Stissing Valley Farms mine will have no adverse impact upon the historic resources in or adjacent to the proposed project area and that there are no reported archaeological resources in or adjacent to the project area. Letter of April 28, 1995 (Brewington to Budnik; Ex.14).
Deputy Permit Administrator Steidle explained that in Staff's initial contact with OPRHP regarding this project (by letter dated October 18, 1994), Staff specifically stated to OPRHP that the site is close to a sensitivity circle on the OPRHP map. In sum, the Alliance disputes Staff's reliance upon OPRHP's determination that the site is not archaeologically sensitive and not likely to be the site of prehistoric remains. The Alliance seeks an order requiring Applicant to conduct a stage 1-B cultural survey prior to the excavation of materials from the site; or in the alternative, that Applicant retain an archeologist "on call" during the operation of the quarry so that any resources encountered can be identified and preserved.
Applicant and Staff assert that Draft Permit special condition #13 adequately addresses this proposed issue. Special condition #13 requires that if any archeological or structural remains are encountered during excavation, the Permittee must immediately cease work and notify the Department. Further, Mr. Steidle stated that pursuant to 6 NYCRR 621.3(a)(7), the Department is required to obtain a determination from the Office of Parks, Recreation and Historic Preservation on the impact of projects such as this; that determination is a pre-requisite to a determination of completeness regarding the permit application.
The Alliance maintains that under such circumstances, based upon standards promulgated by the New York Archeological Council, relied upon by OPRHP, an agency performing a sensitivity assessment must consider the proximity of a proposed project to locational preferences or tendency for particular settlement systems, characteristics of the local environment which provide essential or desirable resources such as proximity to perennial water sources, well drained soil, flora and fauna resources, raw materials or train and transportation routes as well as the density of archeological and historic resources within the general area and the extent of known on-site disturbances.
Ruling #14: No adjudicable issue is raised regarding cultural resources. The record establishes that Staff specifically brought to OPRHP's attention that the project was near a sensitivity circle on the OPRHP map. The Alliance's other cultural resource issues does not rise to the level of adjudicable issues.
I. Reclamation Bond
Draft Permit special condition #2 requires Applicant to maintain a reclamation bond or other acceptable surety in the amount of $20,000.00. The Alliance asserts this amount is not sufficient, particularly because the site currently contains an unreclaimed area. The Alliance had a landscape architect evaluate the cost of reseeding and respreading top soil, including the issue of whether additional top soil would be required to reclaim the unreclaimed area on the existing site. The Alliance has set forth in its petition the assumptions its proposed expert relied upon and the amount of bonding necessary to ensure that there would be sufficient funds available to reclaim the site in the event the Applicant failed to discharge its obligations under the permit.
In response, Mined Land Reclamation Specialist 1, Robert J. Martin explained that Staff considered several factors in proposing the draft permit reclamation bond amount. One factor is that the project is phased. Therefore, the reclamation will be successive with the progression of mining. The Draft Permit requires that reclamation of a phase completed by mining shall commence before two acres of the subsequent phase is affected; and in no instance shall the total affected and unreclaimed area exceed seven acres. Draft Permit special condition #9, Exhibit 4 (unchanged in the September 27, 1996 Draft Permit). Secondly, the equipment for reclamation will be on site and any top soil stripped in mining has to be retained on the site for reclamation. Draft Permit special condition #19, Exhibit 4 (unchanged in the September 27, 1996 Draft Permit). Third, in five years, before the permit for the site is renewed Staff will reassess the bond with respect to the amount of affected acreage. At that time, if Staff determines for any reason such as noncompliance with permit conditions or other relevant reason, the reclamation bond amount can be increased. Lastly, Mr. Martin explained that typically throughout the state this type of operation is bonded at a flat rate of $2,000 per acre. In this instance, to account for inflation and because the cost of doing business in southeastern New York tends to be higher than in other parts of the state, Staff raised the bond amount in Region 3 by fifty percent, to $3,000 per acre. Therefore, Mr. Martin, concludes that the $20,000 reclamation bond, which is approximately $3,000 per acre, is adequate for this type of facility.
Ruling #15: The Alliance's offer of proof on the amount of the reclamation bond fails to raise an adjudicable issue. Staff has carefully evaluated the costs of reclamation in light of its evaluation of the proposed project and its past experience in assessing reclamation bonds for similar mining projects.
Pursuant to 6 NYCRR 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner by November 19, 1996. Reply briefs to any such appeals must be filed by November 26, 1996. All appeals and replies must be addressed to the Office of the Commissioner, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010, must include an original and two copies, and must be received by that Office by the dates indicated herein. Additionally, a copy of all such appeals, replies, briefs, and other related filings must also be sent to the ALJ's attention at the Department's Office of Hearings and Mediation Services, and to all persons indicated on the current Distribution List. Transmittal of documents must be made at substantially the same time and in the same manner to all persons.
Kevin J. Casutto
Administrative Law Judge
November 4, 1996
Albany, New York
TO: Service List