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Ungermann Excavating Inc. - Ruling, May 18, 2000

Ruling, May 18, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of

UNGERMANN EXCAVATING INC.
8917 Ungermann Road
Cuba, New York 14727

for permits to operate a sand/gravel/topsoil mine
in the Town of Machias, Cattaraugus County pursuant to
the Environmental Conservation Law ("ECL") and Title 6
of the Official Compilation of Codes, Rules and
Regulations of the State of New York ("6 NYCRR")

RULINGS
OF THE
ADMINISTRATIVE LAW JUDGE
ON
PARTY STATUS
AND
ISSUES

DEC Project No.
9-0458-00059/00001

Summary of Rulings

Administrative Law Judge ("ALJ") Robert P. O'Connor has determined that the proposed Intervenors in this matter, namely, site neighbors Mr. and Mrs. Walter Dziekonski, Mr. and Mrs. Landee Crooks, Mr. and Mrs. Dana Miller, Mr. Wallace Lund, Mr. and Mrs. Roger Green and Mr. and Mrs. Alfred Siewert, Jr., collectively referred to as the "Petitioners," have failed to raise any issues with regard to the instant application for permits to operate the Mapes Machias Mine by Ungermann Excavating Inc. which rise to the substantive and significant level such as to warrant adjudication in any further proceedings before this Department. In their petition and following briefs, the Petitioners have raised a variety of legitimate concerns, all of which, however, have been adequately dealt with in the existing DEIS and supporting materials for the proposed Project, or which will be further addressed in the Applicant's responsiveness summary and the Final EIS and/or which are or will be subject to the imposition of special permit conditions in any permit issued by the Department Staff for the proposed Project.

There are no adjudicable issues in this matter, and therefore, there is no cause for an adjudicatory hearing. Consequently, the party status request of the Petitioners is denied. The subject applications are remanded to the Department's Region 9 Environmental Permits Staff to complete the SEQRA process as necessary and issue the requested permits for the sand and gravel mine.

Project Description and Location

Ungermann Excavating Inc. (the "Applicant") proposes to mine gravel, sand and topsoil from a site known as the "Mapes Machias Mine" located on the north and south sides of Brown Road, approximately 350 feet east of New York State Route 16, in the Town of Machias, Cattaraugus County, New York. The mining operations would encompass approximately 107 acres of the 151 acre site which is owned by Donald Mapes. Approximately 58 acres of the site were previously mined and left unreclaimed prior to the enactment of the Mined Land Reclamation Law. The Applicant proposes to process the mined materials on site, using a crusher and wash plant, which would have a closed-cycle water circulation system with no process water discharge. The proposed actions also include the installation of a bridge over Ischua Creek, the relocation of Tributary No. 31 of Ischua Creek to a position along the Conrail right-of-way and the elimination by filling and/or excavation of approximately 1.95 acres of federally regulated wetlands. The proposed operations will excavate below the ground water table to eventually create three (3) lakes, sized respectively at: one, approximately 31 acres located east of Ischua Creek, and two, both west of Ischua Creek, one being approximately 16 acres located north of Brown Road and the other approximately 20 acres located south of Brown Road. The affected areas of the property, outside the proposed lake areas, would be reclaimed to approximately 24 acres of agricultural land and the remainder to meadows. The estimated life of the mine is 50 years.

Permits Required

The Applicant applied to the New York State Department of Environmental Conservation (the "Department") for a mined land reclamation permit for the mining activities, a protection of waters permit for the installation of a bridge over Ischua Creek and for realignment of Tributary No. 31 of Ischua Creek, a water quality certification regarding the placement of fill in a federally regulated wetland and registration of an air pollution control device for the proposed processing equipment. It is the opinion of the Department Staff that this project can meet all statutory and regulatory criteria for matters within NYSDEC jurisdiction by the imposition of appropriate conditions in any permit that may ultimately be issued. The Department Staff prepared a proposed Draft Permit incorporating such conditions of approval for consideration at the legislative hearing. Following the hearing, the Staff submitted an additional proposed special permit condition regarding the mapping of freshwater wetlands on the project site.

Additionally, a U.S. Clean Waters Act permit is required from the U.S. Army Corps of Engineers for realignment of Ischua Creek Tributary No. 31 and for the elimination of nearly 2 acres of wetlands; and a "flood plain development permit" is required from the Town of Machias for the bridge crossing of Ischua Creek and mine excavations and fills in the NFIP Flood Hazard Area.

State Environmental Quality Review Act ( "SEQRA" ) Status and Determination of Completeness

The Department Staff determined on March 12, 1997 that the proposed project may have a significant effect on the environment and issued a Positive Declaration. In response to the Positive Declaration, the Applicant prepared a Draft Environmental Impact Statement (DEIS) for the project. On March 11, 1999, the Department Staff, as Lead Agency, (a) determined the application for the above described project was sufficiently complete for the purpose of commencing its formal review, (b) accepted the DEIS for the proposed action as complete for review purposes, and (c) initiated a public comment period on the proposal.

Public Statement Hearing and Comment Period

Following publication of the required hearing notice in the Times Herald, Olean, New York and the Arcade Herald, Arcade, New York, both newspapers with general circulation in the vicinity of the proposed Project, a legislative public statement hearing to receive comments on the proposal was held before Administrative Law Judge ("ALJ") Robert P. O'Connor of the Department's Office of Hearings and Mediation Services in the Machias Town Hall and Public Library, Roszyk Hill Road, Machias, New York at 7:00 P.M. on Wednesday, July 7, 1999. Approximately 60-70 people attended the hearing, with 18 persons making statements for the hearing record. The public comment period remained open until July 19, 1999.

Issues Conference

A pre-adjudicatory hearing issues conference was held in the Machias Town Hall and Public Library, Roszyk Hill Road, Machias, New York at 9:30 A.M. on Thursday, July 8, 1999 to consider all timely filed applications to participate in any adjudicatory hearing which might be held in this matter.

At the issues conference, the Applicant was represented by the law firm of Harter, Secrest & Emery, LLP, 700 Midtown Tower, Rochester, New York 14604-2070 (Edward F. Premo II, Esq., and Leslie M. Senglaub, Esq., of Counsel), as well as Norman G. Ungermann, Jr., President of the firm, and Cale Ungermann. Also attending on behalf of the Applicant were Donald Mapes, the owner of the property proposed for the project; Gordon Shaw of OZA, noise consultants; Brian Bullard of Forecon, Inc., preparer of the DEIS; William Brennan, PhD, SUNY Geneseo, hydrologist/ hydrogeologist; and Rick White, wildlife and wetlands mitigation specialist.

The Department Staff was represented by David Stever, Esq., Assistant Regional Attorney, in the Department's Region 9 Office, 270 Michigan Avenue, Buffalo, New York 14203. Also attending the issues conference were Deputy Regional Permit Administrator Kenneth Taft, Mined Land Reclamation Specialist Michael Meyers, Biologist Joseph Galotti, Environmental Engineers Theodore Meyers and Gerard Palumbo and Environmental Analyst Mary Coleman.

A group of neighbors of the proposed project site were represented by the law firm of Hartman, Ball, Brody & Kinney (David A. Brody, Esq., of Counsel). These neighbors (the "Petitioners") included Mr. and Mrs. Walter Dziekonski, Mr. and Mrs. Landee Crooks, Mr. and Mrs. Dana Miller, Mr. Wallace Lund, Mr. and Mrs. Roger Green and Mr. and Mrs. Alfred Siewert, Jr. Principal among these neighbors and present at the issues conference was Walter Dziekonski. On January 6, 2000, Mr. Brody advised that from that point, he was only representing the Dziekonski's, although the other neighbors' comments and requests for mitigation remained valid.

Upon hearing oral arguments regarding petitions for party status and the proposed potential issues, as well as discussions to resolve and/or narrow the issues, I initiated a conference telephone call among the hearing participants on July 14, 1999, during which alternatives to the access road to the proposed site were discussed and during which I established a timetable for written submissions from the above participants to address the proposed issues. Such submissions were to be submitted by the participants three weeks from the availability of the Applicant's hydrologic analysis report, with responses due to be submitted one week after receipt of the first submission. The hydrologic report was received in the Office of Hearings and Mediation Services on November 4, 1999, along with a letter from the Department Staff indicating that the report was acceptable to the Department. Rather than the anticipated formal comments, the correspondence received subsequently consisted more of an ongoing exchange of proposals and counter-proposals between Mr. Brody and Mr. Ungermann, with some input from Mr. Taft of the Department Staff, regarding various methods by which some of the anticipated impacts of proposed project could be mitigated. On March 16, 2000, Mr. Premo advised that there would be no further submissions from the Applicant and requested that the record of the proceeding be closed. I formally closed the record on April 7, 2000.

Summary Positions of the Participants

- The Applicant

The Applicant believes it has met its burden to receive the necessary Departmental approvals for its proposed mining operation in the Town of Machias. In sum, the Applicant believes it has adequately and appropriately addressed all potential concerns and regulatory criteria relating to the operation of its proposed facility, and there are no issues which are substantive and significant enough to require adjudication. Therefore, the Applicant urges that no hearing is warranted.

- The Department Staff

The Staff contend the Applicant's DEIS and supporting documents suitably characterize the Project site and the surrounding area. It is the Staff's opinion that the proposed Project, as conditioned by the amended draft permit, meets all applicable statutory and regulatory criteria, and that the proposal can be approved. The Staff do not believe an adjudicatory hearing is necessary.

- The Petitioners and Principally Mr. and Mrs. Walter Dziekonski

The Petitioners contend that the Draft Environmental Impact Statement filed with the Department by the Applicant is deficient with respect to many potential impacts and fails to meet the requirements of the State Environmental Quality Review Act, particularly with respect to alternatives and cumulative impacts of mining in areas surrounding Ischua Creek. The Petitioners maintain that approval of the proposed Project will significantly impair the quality of the environment surrounding their homes in such a manner as to cause harm to their persons and property. The Petitioners identified a variety of issues which they propose for adjudication, alleging the proposed Project will have adverse impacts on community character, traffic safety/access to the site, noise, air quality and dust, water quality and quantity/hydrogeology, biology/endangered species and will cause a reduction in property values. The Petitioners seek full party status at any adjudicatory hearing in this matter.

The Issues Proposed for Adjudication

In order for an issue to be adjudicated, the issue must relate to a dispute between the Department Staff and an applicant over a substantial term or condition of the draft permit; relate to a matter cited by the Department Staff as a basis to deny the permit and is contested by the applicant; or it is an issue proposed by a potential party and which is both substantive and significant.

An issue is substantive if there is sufficient doubt about an applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry.

An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.

6 NYCRR § 624.4(c)(4) specifically provides that in situations where the Department Staff has reviewed an application and finds an applicant's project as proposed or as conditioned by a draft permit conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to the project to demonstrate that the issue is both substantive and significant. Such is the case in the instant matter, with the Department Staff having determined that there are no statutory or regulatory prohibitions or restrictions which would preclude the issuance of the requested permits and that appropriate SEQRA findings could be made. It is the Petitioner's burden to demonstrate that the issues they are raising warrant adjudication.

In the instant case, the task is to determine if the Applicant's proposal to operate a mine does indeed meet the applicable statutory and regulatory standards for permit issuance. Here, the Petitioners have raised factual questions regarding the Applicant's assessment of several of the potential impacts of the proposed Project.

Mr. Brody presented at the legislative public statement hearing on July 7, 1999 an itemized listing of issues which the Petitioners believed were inadequately addressed in the DEIS. This listing formed the basis of the discussions which occurred at the issues conference on July 8, 1999. Through the protracted exchange of correspondence between the Petitioners and the Applicant, information regarding several of these issues was supplemented. The following rulings are arranged in the order in which the potential issues were considered during the issues conference.

Rulings on Proposed Issues

Terrestrial Ecology

- Osprey Habitat

The Petitioners alleged to have identified an osprey nest in a tree in the vicinity of the proposed mine and are concerned about the impacts of the proposed Project on this species. Ospreys typically nest atop dead trees or platforms erected on telephone poles, where the canopy of a tree does not interfere with their flight habits. The size of an osprey's wingspan, at approximately five feet, would preclude such a large bird from reaching a nest in the center of a tree, such as observed by the Petitioners. While an osprey might occasionally feed in an area such as the small pond presently existing on the site, that pond would be insufficient to sustain an osprey living in the area. Such birds would be unlikely to fish the waters of the Ischua Creek, again because of the close tree canopy which could interfere with the birds' flight habits.

Ultimately, following the mining, reclamation of the site with some 67 acres of ponds could prove to be attractive to ospreys, i.e. - "fish hawks," as the open water would allow them free reign as they hunt their prey. This could be especially true if a nest platform was installed near the ponds.

Further, regarding the observed nest, wildlife experts for both the Applicant and the Department Staff positively identified the nest noted by the Petitioners as that of a red-tailed hawk, with the Department's Technician actually observing a red-tailed hawk on the nest.

- Timing of Field Work

The Petitioners complained that the field work done for the biological assessments in the DEIS was done during the winter and observations made at that time of year would be unrepresentative of the flora and fauna indigenous to the site, as well as freshwater wetlands boundaries being relatively unidentifiable then. In actuality, the Applicant's expert was at the site in January 1998, at a time when there was no snow cover and the temperatures were in the high 50° F. range, but also again in April, this time accompanied by a biologist from the U.S. Army Corps of Engineers, when a comprehensive survey of flora, fauna and wetlands was conducted. The wetlands delineation was observed, confirmed and accepted by the Corps representative.

There are no DEC jurisdictional freshwater wetlands which will be disturbed by the activities proposed on the site (New York State Freshwater Wetland DE-15 along the northwest boundary of the Mapes property will be avoided).

- Conversion of Terrestrial Ecosystem to Aquatic Ecosystem

The Petitioners expressed concern that with the mining and reclamation process the presently terrestrial ecosystem would be converted to a predominantly aquatic ecosystem and that the impacts of such a change had been glossed over in the DEIS. The Applicant's expert explained that no endangered or threatened species of plants or animals were identified on the site. True, as mining progressed, the existing common plants would be destroyed and the animals inhabiting the site would relocate to neighboring lands. However, as reclamation to a series of ponds occurred, there would be an increase in the diversity of plants and animals inhabiting the site than presently exists, due to the reclamation design of the pond areas to incorporate relatively large contiguous blocks of emergent wetlands. Rather than just an excavated hole with water in it, the reclamation plan seeks to incorporate shallow areas around the edge and sloping shelf areas extending into the ponds which would be planted with wetlands plant species. These areas would be attractive to waterfowl, fish, amphibians and aquatic insects. This type of wetland habitat provides more of the wetlands functions identified in the State's regulations and would provide a higher quality wetland than exists now.

Ruling #1:

There are no adjudicable issues raised regarding the proposed Project's impacts on biological resources/terrestrial ecology. The Applicant has incorporated measures into the reclamation plan which will diversify the flora and fauna on the site. The State regulated wetland area on the property will be avoided. The federally regulated wetland areas are outside the jurisdiction of the Department.

Water Quality

- Relocation of Tributary #31 to Ischua Creek

The Petitioners have called into question the impacts on aquatic species, including the trout population in Ischua Creek, which might occur as the result of relocating Tributary #31, which currently runs along the eastern perimeter of the site, onto the site and then into the Ischua Creek near the segment of Brown Road which crosses the southern portion of the site. Tributary #31 is a shallow stream, which warms up quickly during the summer, making it unsuitable for trout habitat. It has steep sides and has been largely channelized in its present location through the site, where it had been moved from its original location to accommodate the prior mining operation on the site. In its present location it receives warm water from the existing pond on the site, affording the opportunity for mixing the warm pond water with the colder waters in Ischua Creek. The Applicant's proposal is actually to move the stream back to near its original location and to remove any connection with any of the surface water ponds on the site. By doing some planting along the banks of the relocated stream, reinforcing its sides in the relocated location and slightly increasing the gradient in the tributary, it is likely that the habitat in the stream channel would be somewhat improved from its existing condition. These improvements would also improve the conditions in Ischua Creek itself. The relocation of the tributary is required by the Department Staff and is addressed in special conditions proposed in the Staff's draft permit.

- Flooding Potential

The Petitioners expressed concern regarding the potential of flooding in the Ischua Creek valley causing a mixing of the waters in the ponds with the Creek's waters. The Applicant's hydrogeologist, however, presented information that, in the area of the site, the Ischua Creek channel is capable of accommodating the flood flows of approximately 3,000 cubic feet per second, which could be anticipated in an extremely intense 100 year storm and assuming 100% runoff. Thus, the flow of the Creek would not erode through the 100 foot buffer area and through the walls of the ponds. In actuality, one hundred percent runoff would never be achieved, and with the excavation of the ponds on the site, there would be additional flood storage capacity created along the perimeter of the Creek. As Ischua Creek flows through the site, the Creek's elevation varies from 1,628 feet to 1,623 feet. The shoreline of the large pond on the east side of the Creek is proposed to be at approximately 1,625 feet and the shorelines of the two ponds on the west side of the Creek are proposed to be at approximately 1,635 to 1,640 feet. The primary floodplain for the 100 year storm is to the east of Ischua Creek. During such a high discharge event, the waters of the easterly pond would be expected to mingle with the waters of the Creek and with all other waters flowing from upgradient locations towards the Creek. The surface water in the pond is groundwater which has been exposed by the removal of the soil materials. Under everyday, ordinary conditions, the groundwater on the site currently discharges to the Creek, so this temporary commingling of waters would not present any hazards within the watershed of any more significance than could occur under past or present conditions on the site.

- Impact on Nearby Water Wells/Potential for Contamination

The Petitioners raised concerns regarding the impact of pollution within the mine site on the nearby residential drinking water wells. The Ischua Creek valley aquifer is an unconfined aquifer, made up of outwash sands and gravels and is very extensive, extending up and down the valley far beyond the boundaries of the proposed mine site. The aquifer presently includes, among other features, Lime Lake, agricultural fields, thousands of homes, garages, driveways, highways and the railroad tracks which border the east side of the site. The groundwater is within a few feet of the valley floor and is presently subject to all manner of potential pollution from these sources, whether they are the oil/gas mixture from the outboard motors on Lime Lake, agricultural chemicals from a farmer's field, spilled oil or fuel at a service station or homeowner's garage, a hazardous materials spill as the result of a highway or railway accident or even acid precipitation. Due to the porous nature of the outwash materials which make up the aquifer, the soils presently in place in the valley do not present a barrier to contamination of the aquifer, i.e. - most pollutants could easily percolate through the relatively thin soil cover to reach the groundwater. However, by using care and common sense principles regarding the various mining operations, mining does not necessarily present any more of a threat to the aquifer than do the other sources of pollution within the aquifer area. In this instance, the Applicant is subject to all the bulk petroleum storage regulations and will conduct fueling and servicing, to the extent practicable, over a concrete pad to be installed adjacent to the fuel storage area. The Applicant mentioned that it would be difficult to place a bulldozer on the pad without damaging the concrete, but that the dozer would be fueled next to the pad, and the dragline would need to be carefully fueled at its location within the mined area. Thus, the sources of contamination to the aquifer from the mining operation would be minimized. The Applicant has incorporated a spill response checklist into the DEIS (Appendix 22).

The drinking water wells located in the aquifer are located upgradient from the location of mining and away from the center of the aquifer which is the Ischua Creek itself, or, in other words, the proposed mining operation is closer to the center of the aquifer than the water wells. With the groundwater in the aquifer, including the groundwater within the mine site and the surface water in the created ponds, continually discharging to the Ischua Creek, the likelihood of any contamination from the proposed mine impacting the residential drinking water wells is negligible. Furthermore, since soil particles which might be disturbed during mining operations, such as silt and clay, do not travel significant distances within the aquifer materials, there is virtually no opportunity for such particles to affect those upgradient wells.

- Replacement of Wells by Applicant/Requirement for a Bond

In the event the proposed Project is approved, the Petitioners seek a requirement that the Applicant must post a bond to assure its ability to provide potable water to everyone in the area. This concern was raised by the Petitioners with respect to a hypothetical lowering of the water table in the vicinity of the residential wells as a result of the proposed mining operation. In the proposed situation, however, the mining operation would not be either a consumer or an exporter of water from the aquifer. The proposal would not deplete the groundwater, even by exposing the groundwater to the atmosphere where the surface of the created lakes would be subject to evaporation. At the site, though, the amount of precipitation (approximately 35 inches annually) exceeds the predicted evaporation from the surface of the lakes (approximately 24 inches annually), so there would be a slight net gain of water in the lakes. The Department Staff has further required, as a proposed permit condition, that all storm water be retained on the site. The Applicant will additionally monitor the groundwater levels at three locations within the site. As the result of discussions at the issues conference, the Applicant also agreed to install an additional monitoring well near the site's property line between the mining operation and the neighboring residences. Whatever the unlikely chances that any of the neighboring residential wells failed, the Applicant has also committed (Appendix 21 in the DEIS) to guarantee potable water for any neighbor until there is proof that the mining operations are not the cause for the well failure. The Applicant's commitment to provide such potable water is implicitly referenced in the draft permit Special Conditions 1A and 1B, although there is no specific language in the draft permit regarding the Applicant's pledge. There is no regulatory requirement for a bond to guarantee residential water supply wells for properties bordering a mining operation.

- No Requirement for a General Storm Water SPDES Permit

The Petitioners initially alleged that a General Storm Water SPDES (State Pollutant Discharge Elimination System) Permit was required to regulate the storm water discharges from the site. Normally, mining is an industrial activity which does require a General Storm Water SPDES Permit, (a) when there is a conveyance system to transport storm water from the property, and (b) when there is actually a point source discharge of storm water from the site to a surface water body. Following discussions at the issues conference regarding the circumstances which trigger the requirement for such a permit, all participants agreed that the threshold requirements for a General Storm Water SPDES Permit were not met. As noted above, the proposed mine would be required to retain all storm water on the site. The created lakes, under the criteria for such a permit, are not regulated as surface water bodies and do not have any surface connection with the Ischua Creek. Therefore, there will be no storm water running across the site to a discharge point into a regulated surface water body. Thus, no General Storm Water SPDES Permit is required for the proposed Project.

Ruling #2:

There are no adjudicable issues raised regarding the proposed Project's impacts on water quality or quantity. The Applicant has committed to specific measures which would ensure the integrity of the groundwater source of supply for the Ischua Creek valley aquifer, and the Department Staff has addressed this issue in its draft permit conditions. It would be appropriate, however, to incorporate specific language regarding the Applicant's commitment to guarantee the neighboring residential water wells into a permit condition for the proposed Project. The General Storm Water SPDES Permit is inapplicable in this instance.

Need for Sufficient Topsoil to Accomplish Reclamation

The Petitioners seek a guarantee that there will be sufficient topsoil preserved on the site to ensure that the reclamation of the mine can be completed. As areas of the mine are sequentially worked to produce the desired aggregate, topsoil is proposed to be stripped from those areas and stockpiled for eventual sale. Topsoil cannot be stockpiled indefinitely, as the beneficial microbes which provide the soil with its desirable qualities die if the soil just sits in a pile for too long. Therefore, it is appropriate for the stockpiles to be periodically removed (as in "sold") and then renewed as more topsoil is stripped from the site. The site has been divided into four sections for mining purposes. An ongoing reclamation program is contemplated, so that as mining progresses in each section, preliminary reclamation activities will occur, such as establishing the grades, slopes and shelves for the proposed ponds. Then, as mining is completed in each of the sections, reclamation of that section will be completed. The area where the processing plant is to be located, the stockpile areas and the area to the west of the lake to be created south of Brown Road will be the last areas on the site to be reclaimed. The topsoil to reclaim these areas will likely need to come from stripping the surficial soils from mining area number four, i.e. - the area south of Brown Road, prior to the excavation of materials to create the lake in that area. There are presently no calculations for the quantity of topsoil which would be necessary to fully reclaim the site upon the conclusion of mining. It was suggested at the issues conference that those calculations could be provided in the responsiveness summary and incorporated in the Final EIS.

The Applicant has indicated a willingness to construct earthen berms, a minimum of eight feet high up to 12 feet high, along the western edge of all mining areas which are closest to NYS Route 16, to buffer the residences west of the site from noise, dust and visual impacts. Although in a July 27, 1999 meeting between the Applicant and some of the neighbors, the neighbors expressed their preference for supplemental plantings along the western mine boundaries, the potential remains for the construction of berms in these areas. If berms are built, as discussed at the issues conference, sufficient topsoil should be retained to apply to the berms to ensure that vegetation will grow on the berms to control erosion.

Ruling #3:

There are no adjudicable issues raised regarding the retention of topsoil on site to accomplish reclamation. The plans for the revolving use of topsoil stockpiles are appropriate. The calculations which are done for the responsiveness summary/FEIS shall be incorporated into a permit condition to ensure that sufficient topsoil is kept on the site to complete the reclamation process at the conclusion of mining. The construction of earthen berms and/or the requirement for supplemental plantings of native trees along the western edge of the site shall be directed in a permit condition. Other than the minimum eight foot height and the location of the westerly toe of the berms to be located a minimum of 25 feet away from the site boundary line, the remaining construction details and any annual maintenance details, i.e. - annual mowing in late fall, and/or any specific planting details, i.e. - species, size and location of trees/shrubs, are to be determined by the Department Staff and incorporated in the permit condition.

SEQRA Issues regarding the DEIS

- Cumulative Impact Assessment

The Petitioners alleged that the DEIS is deficient because it does not assess cumulative impacts, despite the call to do so in the scoping document "and the clear impact of other mining operations on the area." The applicable regulations for EIS content in 6 NYCRR §617.9(b)(5)(iii) provide, "The draft EIS should identify and discuss the following only where applicable and significant: (a) reasonably related short-term and long-term impacts, cumulative impacts and other associated environmental impacts . . . ." The Department's "The SEQR Handbook," in the chapter on "Determining Significance," defines "cumulative impacts" as "impacts on the environment that result from the incremental or increased impact of an action(s) when the impacts of that action are added to other past, present and reasonably foreseeable future actions." Further, "Cumulative impacts must be assessed when actions are proposed to or will foreseeably take place simultaneously or sequentially in a way that their combined impacts may be significant. Assessment of cumulative impacts is limited to consideration of probable impacts, not speculative ones." The view of the Department Staff is that, (a) the anticipated impacts of the proposed Project have been adequately discussed in the DEIS, (b) to the extent that the DEIS may have failed to sufficiently consider all aspects of any given impact, the issues conference process, and if necessary an adjudicatory hearing, is contemplated to comprehensively complete the DEIS.

An example raised by the Petitioners and echoed in comments received at the legislative public statement hearing is a pervasive concern among the populace that a multitude of mining projects are already occurring and/or are proposed for the Ischua Creek valley, of which the subject application is but one. The Petitioners believe that all the impacts from these mining projects should be addressed as each new application is reviewed. The Department Staff posits that the proliferation of mining projects within the Ischua Creek valley is due to the resource, i.e. - high quality sand and gravel, being located within the unconsolidated deposits in or adjacent to the valley floor. The Department Staff does not see the instant proposal as being dependent upon or interrelated to any other of the mining projects occurring or proposed for the Ischua Creek valley. Further, neither Cattaraugus County nor the Town of Machias has enacted any land use ordinances or regulations to limit the number of mining projects within the Ischua Creek valley.

The Applicant's position is that the proposed Project must stand on its own merits, and that while other mines within the valley may be in competition with the Applicant as far as supplying aggregate for construction purposes, there is no connection between the instant proposal and any other mining operation. The instant proposal is neither dependent upon any other mining operation nor does the Applicant anticipate any additional projects will be proposed because of its current application. Further, to the extent that the instant proposal would add to any of the impacts to which the existing mining operations also contribute, the Applicant has addressed the additional impacts in the DEIS.

- Alternatives and Future Land Use

The Petitioners consider that the discussion of alternatives in the DEIS was done solely for the sake of expediency, i.e. - that none of the alternatives considered were meaningful or realistic. Petitioners' comments in this regard extended to the selection of the proposed site versus an evaluation of other potential sites, to the chosen vehicular access to the instant site versus what they consider to be other viable potential accessways and to the ultimate uses to which the land can be put once reclamation is completed.

In the instance of a private project sponsor, such as this Applicant, the obligation under SEQRA to discuss site alternatives is limited to parcels owned by, or under option to, the private project sponsor. In the instant case, the Applicant has adequately done so, identifying a parcel, the only parcel, for which options were acquired. The selected parcel also has the feature of having been previously mined and left in an unreclaimed state. Therefore, the Applicant's position is that any operation which further mines the site and then reclaims it in accordance with the Mined Land Reclamation Law and regulations is arguably more environmentally acceptable than the existing condition of the parcel.

With respect to access to the site over the chosen NYS Route 16/Brown Road route, the Petitioners suggested that access to and from the site to NYS Route 16, either through adjoining lands north of Brown Road or via the northern extension of Brown Road and then Cattaraugus County Route 37, in order to reduce or avoid impacts on those persons living in the homes near the NYS Route 16/Brown Road intersection to the west of the site. The Applicant attempted to secure a easement through the neighboring properties to the west of the site which would have allowed access to NYS Route 16 at a point north of Brown Road. Neither of the property owners contacted, one of whom is a direct competitor of the Applicant, was interested in granting access to the Applicant through their properties. As far as the suggested access via the northerly extension of Brown Road and then on Cattaraugus County Route 37 to NYS Route 16, the Applicant analyzed this alternative in the DEIS and further discussed it at and after the issues conference, determining that the northerly access was unacceptable due to a much longer distance (totaling 5,700 feet versus 350 feet for Brown Road) to reach NYS Route 16, where truck traffic would impact many more homes (20 versus 2 or 3 for Brown Road) and where the sight distance to the north at the intersection of NYS Route 16 and Cattaraugus County Route 37 would be poorer than it is at the Brown Road intersection with NYS Route 16, especially for loaded trucks turning south on NYS Route 16 where most of the Applicant's markets are located.

Regarding the ultimate uses of the land following reclamation, the Department Staff stated that one of the goals they wish to see in any reclamation plan is a high degree of variability in design options which can afford the flexibility to alter plans for future development, rather than being locked into a set of circumstances which would not allow any changes in use, if desired, to be easily accomplished. In the instant case, the Applicant's reclamation plan offers the flexibility for future users of the property to pursue one or more potential end uses, with various portions of the reclaimed property being suitable for supporting agriculture, wildlife habitat, aquatic resources, recreation and/or residential development. The position of the Department Staff is that the Applicant has gone far beyond the minimum requirements set forth in the Mined Land Reclamation Law and regulations in designing the reclamation plan to be adaptable for a variety of future uses.

Ruling #4:

There are no adjudicable issues raised regarding the SEQRA matters raised by the Petitioners. The cumulative impact assessments incorporated into the DEIS address those subject areas in which additional impacts which may be attributable to the proposed Project. The alternatives discussions in the DEIS are appropriate in the context of SEQRA.

Air Quality/Dust

The Petitioners raised the concern over creation of dust from the mining operations being particularly problematic for the resident who lives near the far northeastern edge of the site, based upon the prevailing westerly winds. The potential for dust created by traffic is considered below in the "Traffic and Noise" section. The mining operation is designed around a proposal to mine predominantly below groundwater. Thus, the excavated materials will, for the most part, be wet, precluding the generation of significant dust from mining, per se. The processing of materials is proposed to be done through a wet processing method, with the materials wetted by spray bars on the processing equipment, again, designed to significantly reduce the generation of dust. Further, the location of the processing equipment will be in the first area to be mined, which will thereby lower the elevation of the processing equipment so that the tallest piece of equipment protrudes only approximately seven and one-half feet above grade, reducing the effects of wind driven particles from the top of the equipment. Vegetative barriers, which will serve to some extent as buffers to any dust migration, will remain in place on the property on both sides of Ischua Creek and in the vicinity of the Conrail tracks. Additionally, the size of the Applicant's plant is relatively small, with a reduced volume of materials being processed reducing the opportunity for dust generation. Dust control is an issue addressed in the Department's draft permit special conditions, and as such, will be an enforceable part of any permit which may be issued for the proposed Project. In the event that neighbors file complaints regarding dust from any of the operations on the site, the Department's policy is to ratchet up the required control measures under the terms of the permit until the problem is solved. Air modeling for fugitive emissions is not required or necessary at this time, but is not precluded as part of a remedial program should dust generation become a problem.

Ruling #5:

There are no adjudicable issues raised regarding air quality or dust generation from the mining or processing of materials. The design of these operations to be handling predominantly wet materials will minimize any dust generation. Other features of the site, including the depressed location of the processing equipment and the retention of large vegetative barriers within the site, should also be relatively effective in minimizing any offsite dust migration. The permit conditions requiring the Applicant to employ effective dust control measures on the site are adequate and enforceable, and, if necessary, can be modified to ensure that control of dust is accomplished.

Cultural Resources

The Petitioners raised a concern that the Applicant performed a review of the area for potentially historic structures, but has not conducted an on-site review for prehistoric sites. They believe that a Stage 1-A archeological review for the site is warranted and required. The Applicant argued that since the site has previously been highly disturbed, both by former mining operations and by ongoing agricultural operations, there is virtually no probability of any indication of archeological resources remaining on the site, and that a Stage 1-A review is unnecessary.

The Applicant followed the accepted procedures in seeking the review of the NYS Office of Parks, Recreation and Historic Preservation ("OPRHP") for any potential impacts the proposed Project would have on historic and cultural resources. OPRHP responded that it had reviewed the proposal in accordance with OPRHP Law §14.09 and found that the actions proposed "will have No Impact upon cultural resources in or eligible for inclusion in the State and National Registers of Historic Places." Section 14.09 of the OPRHP Law states in pertinent part, that the agency's review shall consider "the impact of the project if it appears that any aspect of the project may or will cause any change, beneficial or adverse, in the quality of any historic, architectural, archeological, or cultural property that is listed on the national register of historic places or property listed on the state register or is determined to be eligible for listing on the state register...". It must be assumed that if OPRHP affirmed that the project was reviewed in accordance with §14.09 and a finding of "No Impact" was made, that such a finding included the consideration of the potential, or lack thereof, for finding archeological resources on the site.

Ruling #6:

There are no adjudicable issues raised regarding archaeological or cultural resources on the site. The NYS Office of Parks, Recreation and Historic Preservation reviewed the project in accordance with applicable law and issued a finding of "No Impact" on cultural resources. Reliance must be placed on the determination of OPRHP. Since the site has already been highly disturbed by previous earthmoving and ground engaging activities, the necessity of a further Stage 1-A review is not justified.

Traffic and Noise

The Petitioners opposed the use of Brown Road as the accessway to and from the proposed Project on the basis that the negative impacts associated with truck traffic in close proximity to their homes cannot be adequately mitigated. The impacts mentioned include noise and diesel fumes from trucks starting and stopping at the Brown Road/NYS Route 16 intersection and the intersection of the on-site haulageway and Brown Road, as well as soil being tracked from the mine site onto the paved roadways and dust raised by the trucks pulverizing the soil on the roadways as they enter and exit the mine site. In the event the Brown Road access is determined to be the most appropriate, the Petitioners seek additional mitigation in the way of additional buffers, i.e. - plantings and berms, limited hours of access to the site by trucks, limitation on the number of trips per hour into and out of the site, mandated use of covers over truck loads, increased watering frequency on unpaved haulageways within the site and the requirement to pave more of the roadways into and on the site.

The alternative access routes for the site are described above. For the reasons given in the DEIS and affirmed herein, Brown Road provides the access route to and from the site which will result in the fewest impacts to the least number of neighboring residents. It also provides the safest egress from the mine site in terms of available sight distance for loaded trucks turning south onto NYS Route 16.

Therefore, addressing the mitigation measures sought by the Petitioners in the order in which I have listed them, planting and berms are addressed in the Topsoil-Reclamation section above, and again in this section below.

The Petitioners, in seeking to have the Applicant limit the hours of truck access to the site, have particularly requested that the Applicant eliminate Saturday hours of operation, or in the alternative, to require a starting time later than 7:00 A.M. on Saturdays. The operating hours proposed by the Applicant are reasonable for an aggregate mine and may even be less than some of the competing firms' hours of operation. To require the Applicant to close on Saturdays would put the Applicant at a competitive disadvantage. While the 7:00 A.M. starting time on Saturdays is not wholly unreasonable, since there are several residences in close proximity to the proposed Project, a later starting time at either 7:30 or 8:00 A.M. and going until 12:30 or 1:00 P.M., might be a better compromise for the neighbors. What cannot be allowed, however, in any case and on any day, is the queuing of trucks on Brown Road and/or NYS Route 16 waiting to get into the site prior to the opening hour in the morning. Such procedures must be strictly prohibited and must be enforceable as a permit condition.

With regards to limiting the number of trucks using the site in any given hour, the Applicant, at the issues conference, stated, based upon its past average annual tonnage of approximately 69,600 tons of material, with the average truck (tractor-trailer) carrying 25 tons of material, in a 10 hour day, 200 production day year, that approximately 1.4 trucks per hour would use (enter and exit) the site. If the mix of trucks included a higher proportion of tandem or tri-axle trucks which typically carry 12 tons of material, the number of truck trips could double to approximately three per hour. If the Applicant's production increased to 100,000 tons of material annually, the average truck trips would increase to four per hour, and at 150,000 tons annually, the truck trips could be six per hour. These numbers are only estimates and could vary depending on production, construction projects and sales. While increased numbers of trucks using the site increase the potential impacts to the neighbors, the Department has no authority to impose an hourly cap on truck traffic. However, if the environmental impacts of such increased truck traffic also increase, e.g. - dust generation, the Department has enforceable provisions in its permit to address those impacts.

The Petitioners' request for the mandated use of covers over truck loads is an enforceable provision of the State's Vehicle and Traffic Law in Article 9, Section 380-a. The request for increased watering of the unpaved haulageways on the site is addressed in a proposed permit condition for controlling dust, as noted in the Air Quality/Dust section above.

With respect to the Petitioners' request for additional paved road surfaces, the initial 100 feet of paving committed to by the Applicant for the entrance to the site is the absolute minimum amount of paving required. However, until there is experience in determining if this length of pavement is sufficient to assist in controlling dust, there is no justification to require additional paving. If the 100 feet of pavement proves to be inadequate as a dust control measure and it is determined that additional pavement within the site is necessary, the Department has the authority to require such paving and/or other measures to accomplish the control of dust.

As noted earlier in these Rulings, there was an extended exchange of correspondence among the Petitioners, the Applicant and the Department Staff regarding various mitigation measures which could be employed to reduce the truck traffic generated impacts of noise, diesel fumes and dust, particularly as those impacts could potentially affect the Dziekonski residence at the southeast corner of the Brown Road/NYS Route 16 intersection and which property borders the length of Brown Road as the road enters the site. The Applicant has agreed to hire a professional nursery/landscaper to plant Canadian Hemlock trees on six foot centers along the Dziekonski's Brown Road property line. These trees should be a minimum of five to six feet high at the time of planting. While the Dziekonski's seek a guarantee of tree replacement for a two year period, and the Applicant apparently has no problem agreeing to such a guarantee, it will be the Dziekonski's responsibility to water and care for the trees once they are planted. Additionally, the location in which the Dziekonski's wish to have the trees planted may be within the Town of Machias' Brown Road right-of-way. It is the Dziekonski's responsibility to secure any permission from the Town of Machias which might be necessary prior to planting the trees.

In an effort to reduce one of the sources of noise on the site, the Applicant stated that he would install a sign on his premises requesting that the truck drivers do not use engine (Jake) brakes while on the site. It would be appropriate for the Applicant to also encourage all truckers using the site to keep their vehicles in good mechanical condition, so as to reduce squeaking brakes and to ensure adequate mufflers are installed, both of which reduce noise impacts. The Applicant can certainly ensure that its own company vehicles comply with these conditions. Another measure which the Applicant should consider in an effort to further reduce noise impacts is to explore the use of proximity back-up alarms on the equipment used on the site, so that an audible back-up alarm is only activated when the equipment senses another object behind it.

Ruling #7:

There are no adjudicable issues raised regarding traffic and noise. Several mitigation measures have been negotiated between the Applicant and the Petitioners. The other concerns are addressable through the imposition of permit conditions.

Incorporation of Additional Special Conditions in Any Permits Issued

During the issues conference, the Department Staff proposed to add Special Conditions Numbers 11 and 12 to address the concerns of the Town of Machias regarding a locked, gated entrance to the site and a plan to impede access to the site by unauthorized motor vehicles, respectively. The Staff additionally submitted for the record the proposed text for Special Condition Number 13 regarding the survey and marking of regulated freshwater wetland DE-15 and the wetland's one hundred foot adjacent area prior to the commencement of any mining operations.

In the narrative of the Proposed Issues and Rulings above, there are several additional recommendations for the imposition of special conditions in any permits to be issued. Reference is made to Ruling #2 regarding the Applicant's commitment to replace residential water wells; Ruling #3 regarding the incorporation of calculations of the quantity of topsoil required to reclaim the site at the conclusion of mining operations and for the construction of earthen berms and/or plantings along the western edge of the site, as well as any detailed instructions for such berms and/or plantings; Ruling #5 to ensure the language of any conditions regarding dust control is adequate and enforceable; Ruling #7 to prohibit the queuing of trucks on Brown Road and/or NYS Route 16 waiting to enter the site prior to the opening hour in the morning and installation of a sign within the site prohibiting the use of engine (Jake) brakes.

Ruling on Party Status

Pursuant to 6 NYCRR §624.5(a), the Applicant and the assigned Department Staff are automatically full parties to the proceeding. The Petitioners have applied for full party status to participate in any adjudicatory hearing which may be held in this matter.

As detailed above, there have been no issues raised which meet the standards set forth in the Department's Permit Hearing Procedures, 6 NYCRR Part 624, for adjudication. In conjunction with the above rulings, therefore, I am denying all requests for party status in the instant matter.

Appeals

Pursuant to 6 NYCRR §§624.6(e) and 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within ten days of receipt of the Rulings.

Any appeals must be received at the office of Commissioner John P. Cahill (NYSDEC, Room 608, 50 Wolf Road, Albany, New York 12233-1010) no later than the close of business on June 2, 2000. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than the close of business on June 9, 2000.

The appeals and responses sent to the Commissioner's Office must include an original and two copies. Additionally, one copy of all appeal and reply papers must be sent to me and to all others on the enclosed Service List at the same time and in the same manner as to the Commissioner. Please note that transmission of appeal and reply papers by facsimile (fax) is not authorized.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION

ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE

Dated: Albany, New York
May 18, 2000

To: Service List (enclosed)

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