WHIBCO, Inc. - Ruling, May 30, 1996
Ruling, May 30, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of WHIBCO, Inc. for a Mined Land Reclamation Permit pursuant to
Article 23, Title 27 of the Environmental Conservation Law
RULING ON ISSUES AND PARTY STATUS
DEC Application No. 5-4140-18/2-1
April 26, 1996
This ruling identifies the parties which will participate in the adjudicatory hearing on the above application and the issues which will be adjudicated in the hearing.
The Village of Round Lake was the only entity or person which requested party status. The Village of Round Lake is granted full party status. The Applicant and the Department Staff are parties to the hearing pursuant to the Department's permit hearing procedures.
The ruling identifies the following issues for adjudication: whether the site is habitat for an endangered species; impacts on the existing character of the community; noise; visual impacts; traffic; whether the site contains an old waste dump; access to the Village's water tower; and control of unauthorized access to the mine property.
The following issues were proposed but for reasons discussed below do not require adjudication in the hearing: other sub- issues relating to wildlife; impacts on potential prehistoric sites or artifacts; storm water management; adequacy of the evaluation of groundwater at the site; erosion near the Village's water tower; and dust.
In these rulings, references to 6 NYCRR Part 617 (the State Environmental Quality Review regulations) are to the June 1, 1987 version of the regulations, which is applicable to the present application (see 617.19 of the version effective on January 1, 1996). References to 6 NYCRR Parts 420-425 (the mined land reclamation regulations) are to the version effective January 18, 1995 which are applicable to this application.
This hearing involves an application by WHIBCO, Inc. (the Applicant) to the New York State Department of Environmental Conservation (the "Department") for a mined land reclamation permit for a sand and gravel mine in the Village of Round Lake, Saratoga County, New York. This is a permit under Environmental Conservation Law ("ECL") Article 23, Title 27 (the Mined Land Reclamation Law) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 420 through 426. The project is also subject to the General Permits for storm water discharges under the State Pollutant Discharge Elimination System ("SPDES", ECL Article 17, Title 8).
The Applicant proposes to mine sand and gravel from approximately 14.5 acres of a 23.5 acre parcel in the Village of Round Lake. The project site is located south of Round Lake Road on the southeast side of Exit 11 of the Adirondack Northway (I- 87). A portable screening plant is proposed to be used on an as- needed basis. The project would proceed in four phases, during an approximately 5 to 10 year life of the mine. The mine would produce a total of approximately 500,000 to 600,000 cubic yards of sand and gravel, over the life of the mine. Reclamation would proceed concurrently with the mining, and the site would be reclaimed to open grassland. The project also involves construction of a new access roadway onto Round Lake Road (also known as Curry Road).
The Department is lead agency for review of this application under the State Environmental Quality Review Act ("SEQRA", ECL Article 8). The Department determined that the project may have a significant environmental impact and an Environmental Impact Statement ("EIS") was required. The Department accepted the Draft EIS as adequate for public review on October 10, 1995.
A hearing for public comment on the application and on the DEIS was held on the evening of January 4, 1996, at the Round Lake Firehouse, before the undersigned Administrative Law Judge. On January 5, 1996, an issues conference took place for discussion of what issues might require adjudication in an adjudicatory hearing on the application. The issues conference continued in a second session on January 25, 1996. Additional written arguments and documents were submitted by the Department Staff, the Applicant and the Village of Round Lake following the issues conference. The Village of Round Lake was the only entity that requested party status. At the initial hearing session, one man inquired about the process for filing for party status after the deadline but no such late filings have been received.
A portion of the correspondence which took place following the initial day of the issues conference was the interaction between the Department and the chief administrative officer of the local government that is provided for in ECL 23-2711.3. This section allows the chief administrative officer of the local government (in this case, the Mayor of the Village of Round Lake) to make determinations regarding certain enumerated subjects (setbacks, barriers to restrict access, dust control, hours of operation, and whether mining is prohibited at that location) and to transmit these determinations with supporting documentation to the Department. On January 30, 1996, the Village sent these determinations to the Department Staff, recommending a number of changes in the draft permit and stating that mining is prohibited at the proposed location without obtaining consent of local government bodies and that no such approval has been sought or obtained. The Department Staff responded by a letter dated February 22, 1996 which stated that no changes needed to be made to the draft permit in response to the Village's determinations.
Ruling on Party Status
Pursuant to the Department's permit hearing procedures (6 NYCRR Part 624, specifically 624.5(a)), the Applicant and the Department are parties to the hearing.
The Village of Round Lake was the only entity that requested party status. The Village has raised issues for adjudication. The Village, which is the municipality in which the project is located, has an environmental interest in a project which could have adverse impacts on the environment in the Village. The Village is granted full party status to participate in the adjudicatory hearing.
Standard of Review
6 NYCRR Section 624.4(c) specifies the standards for adjudicable issues in a DEC permit hearing. When the Department Staff has determined that a permit application, conditioned by a draft permit, will meet all statutory and regulatory requirements, the potential party proposing an issue has the burden of persuasion to demonstrate that the proposed issue is substantive and significant.
An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further (624.4(c)(2)). 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 (624.4(3)).
In order to establish that adjudicable issues exist, "an intervenor must demonstrate to the satisfaction of the Administrative Law Judge that the Applicant's presentation of facts in support of its application do not meet the requirements of the statute or regulations. The offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." (In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner dated April 2, 1982).
Where the Department, as lead agency, has required the preparation of a DEIS, questions of whether to adjudicate issues concerning the sufficiency of the DEIS or the ability of the Department to make findings required by SEQRA are determined under the same standards that apply to identification of issues generally (624.4(c)(6)(i)(b), 624.4(c)(1) through (4)).
SEQRA requires that an agency approving an action must make findings regarding the agency's consideration of environmental effects and alternative actions and the minimization or avoidance of adverse environmental effects (see 617.9(c)).
The Project Site and its Surroundings
The location of the proposed project is shown on the attached map (from p. 27 of the DEIS). The site is located south of Round Lake Road, southeast of Exit 11 of the Northway. Various natural and constructed features which are discussed with regard to the proposed issues are depicted on the map.
Agencies Involved in the SEQRA Process
There are issues which have been proposed regarding the project's compliance with SEQRA as well as with the mined land reclamation law and regulations. Some of the proposed issues relate both to SEQRA and to the MLRL. Although the Applicant and the Department Staff stated that the Department would have jurisdiction over issues arising under SEQRA, for some of the issues they also argued that an opinion or approval from another state agency resolved the issue and should be relied on without adjudication in a DEC hearing. The Village has made offers of proof which contest the opinions or approvals by the other agencies. Since this question runs through a number of the issues, some general information is presented here prior to the discussion of particular issues.
SEQRA does not take away the existing jurisdiction or authority granted to state agencies. Instead, it supplements this authority so that in addition to the concerns that agencies consider under their legislative mandate, they must take into account environmental matters (Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215, 430 N.Y.S.2d 440 [4th Dept., 1980]). In addition, regardless of whether other agencies have an independent obligation to analyze the potential impacts of a project, each agency has its own obligation to conduct an analysis of the areas of environmental concern (Golten Marine Co., Inc. v. Department of Environmental Conservation, 193 A.D.2d 742, 598 N.Y.S.2d 59 [AD 2d Dept., 1993]). As discussed below, in the present case the environmental review has proceeded on the basis that no other agencies have discretionary approval authority over the project.
6 NYCRR Part 617 provides various roles for state or local agencies in the environmental review of proposed projects. The involved agencies are those which have jurisdiction by law to fund, approve, or directly undertake the action. Of the involved agencies, the lead agency is the one which has the principal responsibility for carrying out, funding or approving the action and for the preparation and filing of the environmental impact statement if one is necessary. An interested agency is one which lacks the jurisdiction to fund, approve or directly undertake the action but wishes to participate in the review process because of its specific expertise or concern about the proposed action. (See 617.2(t), (v), and (u) for the full definitions of these terms.)
The DEIS for the present project lists the DEC mined land reclamation permit as the only known approval required. In addition, the Department Staff has since determined that the project is subject to the SPDES General Permits for storm water runoff.
At the issues conference, the Village contended that it is an involved agency since the Village's approval would be necessary under zoning laws enacted in 1971 and 1991 and since the Village may make determinations pursuant to ECL Section 23- 2711.3. The Applicant argued that the Village does not have any approval authority over the project, that the Village is not an involved agency, and that disputes about zoning are not to be addressed in the Department's review of mining applications. The Department Staff stated that it is of no concern in the hearing whether or not the Village is an involved agency, and that the Department is the lead agency.
In response to a question about this at the close of the legislative hearing, the Department Staff stated that the Department is the only involved agency, that the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") is an interested agency and that the New York State Department of Transportation ("DOT") is not an involved agency since its only approval is ministerial (not requiring any exercise of discretion).
The Applicant and the Department Staff took the position that the Department of Environmental Conservation would be the agency which would have jurisdiction to consider all of the issues relating both to the Mined Land Reclamation Law and to SEQRA.
The Department's Technical Guidance Memorandum MLR-92-2 (the "TGM"), which was confirmed as being the Department's policy by Commissioner Michael D. Zagata's November 27, 1995 Interim Decision In the Matter of Lane Construction Company, discusses processing of Mined Land Reclamation permit applications under the 1991 amendments to the Mined Land Reclamation Law. The TGM provides that after an application has been determined to be complete, and if the local government states that mining is prohibited at the proposed site, the Department will "[p]roceed to permit issuance or denial solely based on the content of the application and all coordinated technical and environmental reviews. The permit, if one is issued, will not contain any special conditions regarding local prohibition if one exists, beyond the general advisory that issuance of a DEC permit does not relieve the applicant of the need to obtain any required local permits or approvals, and a notation that the local government has declared that mining is prohibited at this location."
The hearing will proceed on the basis that the Department is the only involved agency. The environmental review of the current project has taken place on that basis up to the present time. However, the Village may participate as a full party to the hearing. Any issues arising from compliance with SEQRA would be within the jurisdiction of the DEC in its role as both the lead agency and the sole involved agency. Although testimony or correspondence from the other agencies may be offered as evidence in the hearing, the Village will have the opportunity to present evidence as well, on those issues which have been shown to be substantive and significant.
Adequacy of the DEIS Generally
The Village's petition for party status stated that the DEIS is so insufficient that it is not possible to determine whether there are significant adverse impacts by reference to the DEIS and that it is so cursory and incomplete that its conclusions cannot be properly evaluated (Petition, 17).
The DEIS has been accepted by the Department Staff as adequate for public review, and that review is presently taking place. This does not, however, mean that the project is approvable. Insufficiencies which were alleged in the Village's petition are discussed below under the proposed issues to which they relate.
This proposed issue includes whether the site of the proposed mine is habitat for the Karner blue butterfly (an endangered species, as identified in 6 NYCRR 182.6(a)(2)), the project's impacts on wetlands, and impacts on wildlife generally.
The Village argued that the DEIS relies on a letter from the New York Natural Heritage Program which states that the Program's files do not indicate "any potential impacts on endangered, threatened or special concern wildlife species, rare plant, animal or natural communities or other significant habitats," but which also states, "This information should not be substituted for on-site surveys that may be required for environmental assessment" (emphasis in original). The Village stated that habitat for the Karner blue butterfly was identified at Wood Road approximately a mile south of the site of the proposed mine. The Village offered as proof the EIS for a project at this other location and testimony by a registered landscape architect to the effect that the DEIS's evaluation of wildlife impacts was insufficient. The Village also offered testimony about observations of the butterfly and of blue [sic] lupine (Lupinus perennis), a plant on which the butterfly depends, on or near the site. The Village later withdrew the proposed testimony regarding observation of the butterfly. At the first issues conference session, the Village requested the Applicant's permission for Village representatives to inspect the site. The Applicant refused to answer this question.
The Applicant stated that no concern about wildlife had been raised during the scoping session for the DEIS, but the Village stated that it "absolutely" was brought up but was not addressed in the DEIS. The Department Staff had no record or documentation of the subjects that had been brought up at the scoping session.
The Applicant also stated that it had recently retained a biologist to review this question and that he had concluded that there was no potential for the wild lupine to exist on the site and that therefore there was no potential for the Karner blue butterfly to be present on the site. His review consisted of a visit to the site, which had occurred during December 1995, and a review of aerial photographs. The Department Staff stated that it believed that blue lupine did not exist on the site and that the Village had not raised an issue.
The Village's offer of proof is weakened by the absence of observations of the Karner blue butterfly or expert testimony that the site is habitat for it. There are, however, indications that such habitat exists nearby and there is a question of fact regarding the similarities and differences between the two sites relevant to their value as habitat for this species.
The Village's offer of proof needs to be weighed against the Applicant's information on the subject and the manner in which the subject has been treated in the Department's environmental review process. The DEIS contains a very cursory discussion of the potential of the site as habitat for any species of endangered, threatened or special concern wildlife. The DEIS relies on a letter that by its own terms cautions the reader about relying on the data base as opposed to making on-site surveys.
The sufficiency of an environmental impact statement, and its scope or lack of coverage of specific environmental concerns, is evaluated by the "hard look" standard which also applies to the determination of whether or not to require an EIS. This involves identifying the relevant areas of environmental concern, taking a "hard look" at them, and making a "reasoned elaboration" of the basis for the agency's determination (Aldrich v. Pattison, 107 A.D.2d 258, 486 N.Y.S.2d 23).
Habitat of the Karner blue butterfly was not identified as a potential impact in the DEIS, whether or not it was raised at the scoping session, and the wildlife section of the DEIS does not constitute a "hard look" at this question. The subsequent information on this issue, contained in the hearing correspondence, indicates that further inquiry is required and that this inquiry should include on-site observations during an appropriate time of the year. The "hard look" at this issue will need to be based on testimony and evidence rather than on argument.
Providing for an on-site inspection prior to the conclusion of testimony in the hearing will probably not delay the conclusion of the hearing process. This ruling is being made in late April and may be appealed to the Commissioner. The Interim Decision on appeals would not be made until May or possibly June.
The remaining proposed wildlife issues will not be adjudicated. Although the DEIS's discussion of wildlife is limited, the Village did not demonstrate that there may be other significant adverse impacts that were overlooked. The proposed testimony regarding birds in the Village of Round Lake did not indicate that the bird observations were on or near the site and there are indications that some of the species noted would have occurred in other parts of the Village and not on the site. There was also no indication that the effects on bird life in the area, as a result of mining the site and reclaiming it as grassland, would constitute significant adverse impacts.
There is a state-regulated freshwater wetland south of the site (see map), but there is no indication that it would be adversely impacted nor the nature of any such impact. The presence of the wetland actually appeared to be related mainly to the proposed drainage issue. No information was presented that would indicate that there may be a federally-regulated wetland on the site.
In summary, there is an issue for adjudication regarding whether the site is habitat of the endangered Karner blue butterfly and, if so, what would be necessary in order to avoid or mitigate impacts on this species. The remainder of the proposed wildlife issue does not require adjudication.
Community Character/Cultural Resources
This proposed issue includes two components: impacts on the existing community character in which historic resources are a factor, and impacts on potential prehistoric sites or artifacts. As discussed below, the first is an issue for adjudication in this hearing but the second is not.
The "environment" as that term is used in SEQRA, means "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health" (6 NYCRR 617.2(l)). The need to consider impacts on the character of the community in the environmental review process has been recognized by the Courts (Jackson v. Urban Development Corporation, 67 N.Y. 2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 ; Chinese Staff and Workers Association v. City of New York, 68 N.Y. 2d 359, 509 N.Y.S.2d 499, 502 N.E.2d 176 ; Meschi v. Department of Environmental Conservation, 114 Misc. 2d 877, 452 N.Y.S.2d 553) and the agency needs to consider these in the context of the particular location involved (Harlem Valley United Coalition, Inc. v. Hall, 54 N.Y.2d 977, 446 N.Y.S.2d 33, 430 N.E.2d 909 ).
The DEIS's discussions of various impacts do not take into account the specific characteristics of the Village of Round Lake to any meaningful extent. Many of the project's impacts on Round Lake, as opposed to on some sort of generic or indefinite receptor community, have been evaluated either insufficiently or not at all in the DEIS. The Village has demonstrated that Round Lake has unusual characteristics which need to be taken into account in evaluating, avoiding and mitigating these impacts and that there may be significant adverse impacts on the existing character of the Village of Round Lake due to the project.
The Village's offers of proof contain valid reasons to include impacts on the existing character of the community as an issue. Both DEIS and the Village's petition for party status stated that the Village is on the National Registry of Historic places. Information presented at the legislative hearing and the issues conference indicates that the Village began as a church camp meeting in the nineteenth century and small houses were eventually built. The houses in the central portion of the Village are very close together and on very narrow streets. Round Lake also has numerous outdoor festivals which occur in the parks located between the central portion of the Village and Washington Avenue. One of the festivals provides revenue for the Round Lake Library. There were numerous references to pedestrian traffic, which would appear to be greater in Round Lake than in many other communities.
The issue of impacts on the existing character of the community is interrelated with the issues of noise, visual resources, traffic and safety. These impacts will need to be evaluated in light of the existing conditions in the Village of Round Lake. Impacts on the existing character of the community will be an issue for adjudication.
The correspondence from the NYS OPRHP regarding its assessment of impacts on cultural resources in or eligible for inclusion in the State and National Registers of Historic Places does not exclude this issue from review in the present hearing. Each involved agency has its own obligation to analyze the areas of environmental concern identified in the SEQRA regulations (Golten Marine v. DEC, 193 A.D.2d 742) and is responsible for making its own findings under SEQRA (617.19). In addition, in the present case DEC is not only the lead agency but is proceeding as the only involved agency, with OPRHP being regarded as an interested agency. Impacts on "community character" can involve different considerations than impacts on historic sites. Although in the present case the two questions are interrelated, they are not identical.
The other aspect of this proposed issue is potential impacts on archaeological resources. The Village asserted that there is the potential for prehistoric cultural materials that could be lost if the site is not evaluated by a qualified archaeologist, and that apparently no Stage 1A cultural resource investigation was performed.
The parties have submitted further information on this proposed issue during both sessions of the issues conference and in recent correspondence. This information includes two letters from the NYS OPRHP that stated why OPRHP had not required a Stage 1 cultural resources survey and that OPRHP's inventory of known archaeological sites does not show any such sites in close proximity to the mine site. The Village stated that it would present testimony by a local resident and by an archaeologist concerning how the presence of a Native American corn grinding mortar in the Village indicates the potential that a community or a regular migratory path existed near the site. The Village also submitted information from the New York State Museum regarding known archaeological sites in and near the Village, none of which are on the site of the proposed project.
Although the Village described the Museum's response as stating that there is "a higher than average probability of prehistoric occupation or use..." the Museum's response actually states that the physiographic characteristics of the location are mixed and that there may be anywhere from a higher than average to a low probability of prehistoric occupation or use, depending on the physiography of a particular location (for example, near bodies of water, on hills, on erosional steep slopes). In a letter dated April 15, 1996, the Village withdrew its offer of testimony by the archaeologist. The documents and offers of proof which are in the hearing record at present do not indicate that there is conflicting expert opinion regarding the likelihood of encountering archaeological resources on the site, nor that the examination of this potential impact is deficient.
The archaeological impacts portion of this proposed issue will not be adjudicated.
The Village contested the DEIS's assessment of noise impacts of the project (DEIS, pp. 30-33). The DEIS does not include noise among the significant potentially adverse impacts of the project (DEIS, p. 34). The Village stated that the impact of noise on the Village was not discussed, including noise at a home for the elderly, and that the noise assessment assumes attenuation due to the mine faces, but that such attenuation would occur only during the middle of the life of the mine and not at the beginning or end of the project. The Village stated that numerous factors related to noise had not been examined, including noise attenuation when leaves are off the trees, the effect of noise from the Northway upon the Village once the elevation of the site is lowered, and noise from trucks. The Village proposed testimony by a consulting engineer regarding alleged deficiencies in the noise evaluation, and stated that this testimony would show that the mine would increase the noise levels in the Village much more severely than indicated in the DEIS. The Village also cited a table in the DEIS regarding noise levels from various types of construction equipment.
The Applicant argued that the table in the DEIS is just a sample of the noise levels produced by various kinds of equipment and does not indicate the type of equipment that will be used on the site. The list includes noise levels for 25 types of equipment. At the issues conference, counsel for the Applicant identified the equipment which will be used as consisting of a loader, a bulldozer or excavator, trucks, a small portable screening plant and possibly a grader during reclamation. Other than a mention of the screening plant in the mined land use plan, however, the DEIS does not identify the equipment which would be used nor what equipment was assumed for purposes of any noise study. Counsel for the Applicant stated that the noise analysis had assumed that all of the equipment was operating at the same time, but the DEIS does not mention this.
My review of the DEIS, the correspondence and the issues conference transcript indicates that there are a number of omissions or inconsistencies regarding noise and that further inquiry is required. The DEIS does not identify an expected sound level for the equipment. In a March 4, 1996 letter, the Applicant referred to 88 dBA (at an unidentified distance) as the sound level expected if all equipment was operating at the same time. The basis for this number has not been provided, and the information in the DEIS indicates that even the noise level from individual pieces of equipment might be greater than that. (For example, page 32 of the DEIS lists typical noise levels measured at a range of 50 feet as: 87 to 89 dBA for "dozers," 90-93 dBA for "dozers w/squeaky tracks," 85-90 dBA for bucket loaders, 81- 96 dBA for trucks off-highway, and 75 dBA for a portable screening plant.)
The March 4, 1996 letter and statements by the Applicant at the issues conference also discussed a noise study, but this study is not an appendix to the DEIS nor has it been provided for the record and only a summary of portions of it is included in the DEIS. The location of the "closest sensitive receptor" mentioned on page 33 of the DEIS has not been identified, although the March 4, 1996 letter suggests that it is at 500 feet from the site. The DEIS does not contain predicted noise levels at this or any other receptors, nor at points on the property line. The predicted sound level given in the March 4, 1996 letter is based on questionable assumptions including the 88 dBA figure and the 25 dBA attenuation due to the mine face.
The Applicant contended that the mine face would act as an acoustical barrier since there would be a 30 or 35 foot mine face blocking noise transmission from the site, except during a limited period for access road construction and the last 25 or fewer days of mining during which material along the easternmost edge of the mine would be removed. The Applicant proposed that, after construction of the entrance road, mining would begin at a previously-mined area in the southern part of the site, working northward into the hill and then toward the edges of the mining area, keeping the mining equipment at the elevation of the mine floor. The Applicant stated at the issues conference that the method of mining would be to dig material out from the bottom of the mine face and allow more material to slide down the sloped surface of the mine face. The noise section of the DEIS assumes that the equipment's engines would generally be within eight to ten feet of the mine floor, or approximately 20 to 25 feet below the surrounding grade.
There is, however, a question whether the mining would occur in this manner and whether the equipment would actually remain at the approximate elevation of the mine floor. The DEIS describes the soil at the site as consisting of approximately 10 feet of windblown sand, over approximately 10 to 15 feet of well graded sand with minor quantities of gravel, over approximately 20 feet of very fine grained silt and clay, over approximately 10 feet of till, over bedrock (DEIS, p. 10). When the assumption about the mining method and the location of equipment was questioned at the issues conference, the Applicant's consultant responded that this method could be used even if "clay seams" are encountered, but the DEIS does not describe the lower portion of the material to be mined as merely having clay seams. The mined land use plan also states that, "Excavation will take place in a series of lifts, as necessary" (DEIS Appendix A, p. 3).
This information calls into question the assumption about the height of the mine face during significant portions of the project and therefore the degree of sound attenuation due to this factor.
The Village does not have a local noise ordinance. The mined land reclamation regulations contain provisions regarding noise control measures, including mufflers and screening (422.2(c)(4)), but no quantitative limits. The noise limits from the Department's solid waste regulations and other similar standards may be used as guidance in hearings on mining projects (In the Matter of William E. Dailey, Inc., Interim Decision dated June 20, 1995). Noise is an aspect of the "environment" as that term is used in the SEQRA process (617.2(l)) and a substantial adverse change in existing noise levels is an indicator of significant effects on the environment (617.11(l)).
There are significant omissions and inconsistencies in the DEIS's analysis of noise impacts and mitigation measures. The Village has proposed to present testimony on this issue by an engineer. The existing information on this issue is so deficient that the mine's effects on noise levels and mitigation of these effects cannot be evaluated meaningfully, nor be found acceptable under SEQRA or the Mined Land Reclamation Law. An issue for adjudication exists regarding noise.
The Village challenged the Applicant's evaluation of the visual impacts of the project, including the use of "impact ratios," the choice of the lines of sight used in the evaluation, and the absence of plans for a planted screen which is mentioned in the visual study but which is not presently proposed. The Village stated that the impact ratios do not represent the actual visual impact, and that the method used by the Applicant can produce a misleading indication of low impact. The Village recommended using photographic simulations of the visual impacts. The Village proposed testimony on this issue by a registered landscape architect.
The Applicant stated that the impact ratios method had been used in applications to other state agencies and is based on accepted concepts, and that the Village had to come forward with a visual study that contradicted the Applicant's findings. The Village also stated that since the time when the initial mining plans were prepared, vegetation had grown up in the area where the plantings would have been and that therefore the planted screen was not necessary. The Department Staff was aware of only one other situation in which the impact ratios method had been used and could not comment on how commonly it is used. The Department Staff also stated that OPRHP had reviewed the visual study and mitigation measures and had indicated that OPRHP did not think there would be serious impacts as long as buffer zones were left on the east and west sides of the mine.
As to the planted screen, this was proposed in the visual study, Appendix C of the DEIS, dated May 18, 1994. It may also have been proposed earlier (possibly 1988 or 1989, dates noted on the mining plan and reclamation plan maps in reference to earlier maps) but was still proposed as of May 1994. Correspondence in the record indicates that OPRHP considered the DEIS, which included the 1994 visual study, in arriving at OPRHP's August 8, 1995 opinions on the project. As noted above regarding cultural resources and community character, DEC has an independent obligation to make findings under SEQRA. DEC is not bound by OPRHP's positions, particularly since OPRHP is not an involved agency as that term in used in the SEQRA process and since the Village has demonstrated that a substantive and significant issue exists.
The Village has raised an adjudicable issue regarding visual impacts, which includes both the extent of the impact and mitigation measures. The Village has proposed expert testimony which substantively contests the information in the DEIS and which could affect permit issuance or the conditions to be included in a permit. Visual impacts will be an issue for adjudication, both under SEQRA, with regard to visual impacts and impacts on the existing character of the community, and under the mined land reclamation regulations (6 NYCRR 422.2(c)(4)(iii)).
The proposed issue of traffic includes several related sub- issues: interference between mine-related traffic and traffic going into and out from the fire house located across Round Lake Road from the proposed mine entrance, mine-related traffic going east through a relatively constricted area in the Village, and possible damage to aging sewer and water pipes under the road through the Village. The Village contested the DEIS's projections of the number of trucks which would be entering and leaving the mine and the percentage of mine traffic that would go east through the Village as opposed to west onto the Northway. The traffic issues also relate to the issue of impacts on the character of the community (see above). The Village proposed to present testimony on the traffic issue by a civil engineer, by the Village Superintendent of Public Works, by the Fire Chief, and by a Village resident who owns a trucking company and who spoke at the legislative hearing about the inappropriateness of routing trucks through the Village.
The proposed access road for the mine would enter Round Lake Road across the street from Round Lake's Fire Station No. 1 (see map at end of this ruling). Round Lake Road runs downhill from the Northway exit towards the Village. Round Lake Road is a state highway.
The Village contends that trucks going uphill leaving the mine will be moving slowly and that there is not sufficient space along the side of Round Lake Road for them to pull off the road to allow emergency vehicles to pass. The Village stated that this would interfere both with emergency vehicles going out from the firehouse and volunteer fire fighters entering the fire house driveway. The Applicant contends that trucks leaving the mine could hear the fire siren and stay out of the way in the event of fire department activity, and that there would be no adverse effect on the fire department. With regard to the proposed traffic issues generally, the Applicant stated that the NYS DOT had approved the location of the proposed driveway and that the Village had not raised an issue.
The DEIS makes mention of the fire house in its discussion of traffic, but the information in the DEIS is limited and conclusory and the Village has proposed testimony which contests the information in the DEIS. Although the Department Staff argued that the proposed testimony of the fire chief "...does not rise to the level of an expert offer of proof," Staff provided no persuasive basis for excluding this testimony and it appears likely that the fire chief would have expertise on the fire department's vehicle traffic, its interaction with other traffic, and the consequences of delays.
Although DOT's role in the review of the project was described by the Department Staff as being ministerial, the Applicant is relying on the DOT's June 2, 1994 letter as a judgment about the impacts of the mine traffic on the particular set of facts regarding the physical characteristics of this road, its right of way, and the fire house traffic. (There is also no indication that the DOT's approval considered other aspects of the traffic issue such as possible effects of increased traffic on pedestrians or on the sewer and water pipes. Whether and to what extent the fire house traffic was taken into account by the DOT is unclear.)
If the DOT's approval was more than ministerial, it was made prematurely since the EIS was not final at the time (617.9(c); see also East Clinton Developers v. DEC, 109 Misc. 2d 786, 441 N.Y.S.2d 35, citing a prior version of Part 617). The DEIS had not even been accepted as complete for review as of June 2, 1994, the date of DOT's letter. DOT's approval letter does not exclude adjudication of traffic issues in this hearing, particularly where the Department has been proceeding with the SEQRA process as the only involved agency and where the Department Staff and the Applicant have stated that all SEQRA issues regarding this project are under the DEC's jurisdiction.
The DEIS projects that 90% of the mine traffic would go from and to the Northway at Exit 11 rather than through the central part of the Village. The main route through the Village between the mine entrance and Route 9 consists of Round Lake Road, a short north-south segment of road, and George Road (see map at end of ruling). As discussed above under "Community Character," the houses in the Village are very close together and the existing hearing record includes indications of significant pedestrian traffic within the Village. The Village recommended that mine traffic be required to use the Northway rather than going through the Village, but the Department Staff and the Applicant stated that this could not be required in a DEC permit. The Village contested both the projection of how much traffic would go through the Village and the DEIS's estimate of the peak number of truck trips per day that would be generated by the mine. The Village cited a scenario in which a construction project along Route 9 could cause a large amount of the mine traffic to be going through the Village. The Village also stated that the peak traffic as described in the DEIS is unrealistically and uneconomically low, and that it was calculated using a method that does not actually evaluate peak traffic.
The Village also stated that a situation had occurred in which the Northway's traffic had been routed through the Village due to an accident on the Northway, and that the additional traffic had caused breaks in sewer and water lines under the road in the Village. The Village stated that its sewer and water pipes are old and would be adversely affected by an increase in truck traffic. The Village proposed testimony by its Superintendent of Public Works on this subject. The Applicant and the Department Staff responded that there was no evidence of past pipe breakage and that the issue was speculative since the Village had failed to demonstrate it. At this stage of the process, however, the Village would be making an offer of proof, as it has done; the evidence would be presented in the hearing.
If the Village's proof were to prevail, it would demonstrate adverse effects on public health and safety, through interference with fire traffic, water and sewer services, and pedestrian use of the Village roads. Protection of human health, safety and general welfare is part of the policies of New York State in the Mined Land Reclamation Law (ECL Section 23-2703). Human health is also an element of the environment as that is defined at 6 NYCRR 617.2(l). A substantial adverse change in traffic levels or creation of a hazard to human health are among the indicators of significant effects on the environment (617.11(a)(1) and (7)). If significant adverse environmental impacts are shown but there are no conditions which DEC could legally impose to mitigate them, it could be a basis for denial of the permit (i.e., for choosing the "no action" alternative).
The proposed issue of traffic will be adjudicated in the hearing.
Storm Water Management/Drainage
(The portion of this proposed issue which has to do with the Village's water tower is addressed in a separate section below.)
An unnamed tributary of Round Lake flows from north to south along the eastern border of the site. In its filing for party status, the Village stated that this stream often floods the park east of the site and that the Village in general has poor drainage. Disturbing the mine site, the Village alleged, will allow water, silt and sand to enter the stream and the ditch along Round Lake Road. The Village also stated that the information on this subject in the DEIS is inadequate and that the stormwater management facilities should have been designed by an engineer. The Village submitted a letter from the Saratoga County Soil and Water Conservation District which recommended that conservation measures for the project be identified more specifically and which discussed various recommended erosion and sediment control measures. The Village proposed testimony by an engineer, by the Village Superintendent of Public Works and by the District Field Manager of the Saratoga County Soil and Water Conservation District.
The record on this issue, and the permit status of the storm water discharge, have changed significantly since the hearing began. This proposed issue was discussed primarily on the second day of the issues conference (January 25, 1996). At that time, I inquired of the Department Staff whether the project was subject to the General Permits which the Department had issued for storm water discharges under the State Pollutant Discharge Elimination System ("SPDES", ECL Article 17, Title 8). These are General Permits GP-93-05 for industrial activities (except construction) and GP-93-06 for construction activities. On February 22, 1996, the Department Staff notified me that the project would require coverage under these general permits, and that the Applicant had recently submitted the information required by Appendix D of GP- 93-05 and Appendix G of GP-93-06. The Department Staff's preliminary position was that the Applicant appeared to have satisfied the requirements for coverage under both general permits.
On March 4, 1996, the Department Staff stated that the Applicant had satisfied the requirements for coverage under both general permits and that the information which the Applicant provided indicates that adequate measures would be implemented to control storm water discharges, drainage, erosion and flooding. The Department Staff also noted Special Condition No. 6 of the draft permit, prohibiting sediment transport off-site, and stated that no issue existed for adjudication.
The Applicant also took the position that no issue existed, both at the time of the issues conference and in its March 4, 1996 correspondence. The February 22, 1996 document which the Applicant submitted as the information for Appendix G of GP-93-06 contained a note on page 1 stating that since the construction area for the access road and retention basin were less than five acres, "it is the applicants position that a stormwater permit is not necessary for these activities. Nevertheless the information contained in this report is being submitted pursuant to DEC's request." The March 4, 1996 letter from the Applicant, however, did not dispute the Department Staff's position that the project would require coverage under both general permits. As a practical matter, much of the information in the Applicant's document for the industrial activity general permit is the same as that for the construction general permit. The Applicant has not raised an issue regarding coverage under the construction general permit.
The issue proposed by the Village has also been resolved, if the two February 22, 1996 reports submitted by the Applicant pursuant to the General Permit appendices are included as part of the application and if the project is subject to both of the General Permits. These reports and compliance with the General Permits would need to be added to the permit if one is issued for the project (at general condition 16 and as an additional special condition). The reports address the objections and omissions cited by the Village. They provide specific information regarding the location and nature of various erosion control measures, and contain predictions of flow rates at various points in the drainage system. Although the reports were available to the Village, the Village's March 22, 1996 correspondence does not identify any remaining issues regarding either the adequacy of the erosion and runoff control measures nor the prediction that the proposed retention basin has the capacity to contain the discharge of runoff from a 25 year storm both during mining and upon reclamation. The Village's March 22, 1996 correspondence only stated that the reports would be irrelevant if they are based on an assumption that the soil is sand while the actual soil material would be clay. The Village did not, however, argue that this assumption could materially affect either the predicted flows or the types of storm water control measures to be used, and the report submitted pursuant to GP-93-06 recognizes that there are a variety of soil types on the site (report, at p. 1).
The proposed issue regarding storm water management and drainage has been resolved and will not be adjudicated.
The Village contended that the DEIS's evaluation of the groundwater at the site was deficient with regard to evaluation both of the water table at the site and of a possible old waste dump on the site. The first subject is not an issue for adjudication, but the second is.
The Village stated that Appendix H of the DEIS indicated the presence of a perched water table approximately 18 feet above the proposed elevation of the mine floor and that the water table had not been adequately evaluated since the mining operations must maintain a separation between the water table and the bottom of the mine. (Special Condition No. 5 of the draft permit requires that, "[a]ll mining must be conducted at least five feet above the mean annual high groundwater table" and that the permittee must dig test holes in the mine floor.)
The Applicant stated at the issues conference that there is no water table in the unconsolidated materials at the site and the text of the DEIS interprets the test boring in this manner (DEIS, p. 17 and 18). Appendix H of the DEIS identifies the presence of a water table on the site (App. H, p. 3) but states that the water table "is believed to be seasonal and would provide very low groundwater yields at best." The Department Staff has included Special Condition No. 5 in the draft permit, presumably to prevent or mitigate environmental problems with regard to this particular mine, but the mined land reclamation regulations do not contain any requirement for separation from a water table. The Department Staff did not state the reason for this permit condition.
The Department Staff's March 4, 1996 letter states that DEIS Appendix H demonstrates that the groundwater table is in the bedrock. The letter also states that Special Condition No. 5 could be more specifically drafted to alleviate any concerns of the Village. Since the mined land use plan (at page 3) suggests that the final mine floor will be more than five feet above the bedrock, the intent and meaning of Special Condition No. 5 are unclear. I recommend that the Department Staff confer with the Village about revising Special Condition No. 5 as suggested in the March 4, 1996 letter.
As stated in the "Noise" section above, the depth below the surrounding land at which the mining equipment would be operating is already in question, relevant to the effectiveness of the mine faces as acoustical barriers. Even if the depth of the mine or portions of it may need to be limited in order to comply with Special Condition No. 5, there is no water table issue regarding compliance with the mined land reclamation law or regulations, nor regarding possible adverse environmental impacts. Although the Village noted that a nearby restaurant relies on a well, no interaction between water on the site and water at this or other wells was alleged.
The Village proposed testimony by the Village Superintendent of Public Works regarding the presence of an old dump on the hill where the mine would be located (although the witness is not sure whether or not the dump was located on the actual mine site), and testimony regarding observations of "red fluid" issuing from the ground after a test well was drilled on the site. The Village's consultant stated that the possible past use of the site as a dump was discussed at the DEIS scoping meeting but was not addressed in the DEIS.
The Applicant stated that any connection between the red fluid and the well drilling on site was speculative and that a hydrologist had stated that "it probably indicates that a fracture zone in the bedrock may have been penetrated." The Applicant stated that it had owned the site since 1938 and has never used it or allowed it to be used as a dump. (No one has alleged, however, that the Applicant used the site, or allowed it to be used, as a dump and the statements regarding this at the scoping meeting are described as identifying the Round Lake Methodist Association as having used the site as a dump at an unidentified time.) The Department Staff stated that the Village's proposed testimony was speculative since the witness was not sure whether the dump was on the same portion of the hill as the mine and had failed to offer proof that the "orange stuff" came from water contaminated by a dump.
Neither the Applicant nor the Department Staff has disputed the statement that the question of an old dump was raised at the DEIS scoping session in 1992. The possibility of an old dump on the site was definitely discussed in the Village's petition for party status and at the January 4, 1996 legislative hearing. There is no indication that the Department Staff has investigated this question in any manner nor required the Applicant to do any investigation. This does not constitute a "hard look" at the subject.
In a case involving a proposed mine in Columbia County, the Department's determination that there would be no significant environmental impact was overturned, in part, because of an insufficient review of an old dump which had operated on the site (Fairley v. Department of Environmental Conservation, No. 1635- 91, Supreme Court, Albany County, May 20, 1991). In that case, the problems also involved the applicant's past actions in operating the dump, which has not been alleged here, but at the same time the Department Staff did inspect the Columbia County site and require that the dump area be fenced off.
The question of whether there is an old dump in the mine site and, if so, the consequences in terms of further investigation, mitigation, or modification of the project, will be adjudicated in the hearing.
The Village alleged that dust generated by the project would have adverse effects on Village's water supply due to dust entering the Village's water tower, would adversely effect persons near the mine who have health problems, and may damage a unique mechanical organ located in the Village.
The Village stated that its water tower has an opening at the top through which dust could enter, and proposed to present testimony by a consulting engineer regarding inadequacies of the evaluation of dust impacts on the water supply. The Village's offer of proof was based on there being no prediction of the increases in dust concentrations at the water tower (as opposed to at locations in the Village.) The particulate emission study in the DEIS does, however, include a study location very close to the water tower (DEIS App. D). The study states that, according to Department data, "annual ambient inhalable particulates" in northeastern New York range from 14 to 25 æg/m3 and that the air quality standard is 50 æg/m3. The study predicts a maximum increase in dust concentrations of less than 8 æg/m3 at the location next to the water tower. The Village has not demonstrated the existence of a substantive issue regarding dust contaminating its water supply.
The particulate emission study also includes predictions of the increases in dust concentrations at twelve other locations including two in the central part of the Village and others at houses near the mine. The study predicted that dust concentrations at the receptors would remain below the air quality standard, and the DEIS stated that there would be no impacts on the organ or on the nursing home located in the Village (DEIS p. 38). The Village did not propose testimony on health effects of the predicted dust level nor on the sensitivity of the organ to dust.
At the legislative hearing, the fire chief stated that dust from the mine would interfere with the air compressor system which is used for the fire department's air packs, and that it would be necessary to change the system's filters daily. The Village did not propose testimony on this in either its petition for party status or its supplemental petition. It is not proposing to call the fire chief to testify on this subject although he is proposed as a witness on the traffic issue. The DEIS evaluated the predicted increase in dust at the fire house and concluded that it would have no impact on the fire house air system.
The Village also stated that the dust study was based on wind directions at the Albany airport, but proposed no expert testimony regarding why this data would be irrelevant or unreliable. A speaker at the legislative hearing had stated that a weather station exists within 100 yards of the proposed project and its measurements would be more appropriate to use. The Applicant responded that the nearby weather station (along the Northway) is strictly for monitoring weather conditions for the NYS DOT's information in dispatching snow plows and issuing travel advisories and that there is no wind rose data available from this type of station. The Village has not disputed the Applicant's statements regarding the weather station.
The proposed issue regarding dust will not be adjudicated in the hearing.
Village's Access to its Water Tower
This issue was originally proposed as part of the Dust issue and was also discussed under the storm water issue in the issues conference and the correspondence, but is addressed separately in these rulings. The Village's water tower is located immediately south of the site. The access road leading to it crosses the southwestern corner of the mine, in the phase 1 and phase 2 areas. The tower is approximately 100 feet from the edge of the land to be affected by mining (taking into account the 25 foot setback between the mining and the property line).
The Village proposed testimony by the Village Superintendent of Public Works regarding access to the water tower and operation of the water supply. The Village's supplemental petition for party status cited statements at the legislative hearing regarding erosion near the base of the water tower, but did not propose any testimony on this subject.
The Applicant questioned whether the Village had an easement to cross the mine property to the water tower and stated that in the absence of a written easement this would not be an appropriate issue for the hearing. The question of the Village's legal right to use the road would be decided in court, if need be, rather than in a DEC permit hearing. For purposes of the hearing, it is not in dispute that the existing access road to the water tower crosses the mine site. The reclamation plan shows a new location for this road but it still crosses the south end of the area that would be mined in phase 2 and it is not clear when the road would be relocated. The February 22, 1996 documents which the Applicant submitted regarding storm water discharges state that access to the water tank will remain viable throughout the life of the mine, but it is unclear how this access would interact with development of the mine.
The Village's continued access to the water tower will be an issue for adjudication. It appears possible, however, that a permit condition could be developed which would resolve this issue. If the parties stipulate to such a condition, no adjudication would be necessary. As I stated at the second issues conference, at the request of the parties an ALJ who is not involved in the adjudicatory aspects of the hearing could serve as a mediator or facilitator for settlement discussions on some or all of the issues.
The Village has not proposed any testimony regarding the question of the water tower being undermined or damaged by erosion from the mine. At the issues conference the Applicant stated that erosion on the Village's property was the Village's problem, not the Applicant's. The Applicant did state, however, that the proposal complied with the setback requirements in the mined land regulations. If the Department Staff evaluated the concern about erosion and the water tower (as opposed to the question of dust getting into the tower), its conclusions on the subject are not in the record.
The Village's statements regarding erosion and the water tower would not be sufficient to raise an issue for adjudication (In the Matter of Steven J. Kula, Interim Decision dated August 11, 1995, particularly pp. 2 and 3). However, in view of the importance of the water tower, the Applicant's dismissive response and the Department Staff's silence on the subject, additional information should be required. The Department Staff will need to provide for the record their evaluation of this question, preferably after conferring with the Village. This will need to be provided for the hearing record and to the parties by May 10, 1996.
Safety (Site Access)
As proposed by the Village, this issue included elements of the Traffic issue, discussed above. The remaining portion of this issue has to do with children entering the mine site and either being buried under a sand slide or playing on machinery.
In its determinations submitted under ECL Section 23-2711.3, the Village recommended that a ten-foot high chain link fence be constructed around the disturbed portions of the site and that roadways into the site be gated. Barriers to restrict access are one of the subjects on which such local determinations may be made. The Department Staff's response to the Village's determination was that the Village presented inadequate documentation to demonstrate the necessity of a fence, and that this determination was inappropriate. The Department Staff also stated that the mined land use plan indicates that a gate will be located at the entrance to the site. At the issues conference, the Village also recommended that there be a security guard on site at all times.
Neither the application nor the draft permit provide for a fence around the site or around the active mining area. The only barrier would be the entrance gate. The eastern edge of the area to be mined is about 500 or 600 feet behind houses along Washington Avenue and is closer to a number of other houses. There is no indication of any barrier, or even a road, between the back yards of these houses and the mine. At the issues conference, representatives of the Applicant stated that they know of no cases of children suffocating in a sand pit, and that the person who described such an incident at the legislative hearing gave no specifics as to what occurred or what regulations the other sand pit was operating under. They stated that there would be a chain across the gate and "No trespassing" signs, that they would publish notices in the newspaper regarding the prohibition against trespassing and would prosecute trespassers, and that a fence would actually make the site more attractive for people who wanted to trespass.
If one assumes that the mining method described by the Applicant at the issues conference (digging material out from the bottom of the mine face and allowing more material to slide down the sloped mine face) will be used for either all or some of the material to be mined, there will be an unstable sand slope anywhere from 20 to 35 feet in height in the active area of the mine.
The information in the application, the discussion at the issues conference and the correspondence regarding the Village's determination, is sufficient to raise an issue for adjudication regarding control of access to the mine. This issue is within the scope of the Mined Land Reclamation Law, as one of the subjects on which the local government may make determinations which are then reviewed by the Department, and under 6 NYCRR Section 420.2 which states that the mineral resources regulations shall be interpreted to carry out the policies of the state to, among other things, "protect the health, safety and general welfare of the people...in the affected areas of the State." Human health is also a component of the environment as that term is used the SEQRA process (6 NYCRR 617.2()l)).
The use of fences or other measures to control access was identified as an issue in a prior hearing on a sand and gravel mine (Matter of William E. Dailey, Inc. (Stephentown), Interim Decision dated May 14, 1992). That Interim Decision also recommended, however, that the parties attempt to resolve the issue through negotiation. I encourage the parties to attempt to resolve this issue prior to the hearing.
Pursuant to 6 NYCRR Subdivisions 624.6(e) and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.
Any appeals must be received at the office of the Commissioner no later than May 14, 1996, at the following address: Commissioner Michael D. Zagata, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233- 1010. Any responses to such appeals would need to be received by May 24, 1996, at the same address. The parties are to transmit copies of any appeals and replies to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner.
Any request for an adjustment to the appeal schedule must be made to the Chief ALJ, at the Office of Hearings address.
Susan J. DuBois
Administrative Law Judge
Albany, New York
April 26, 1996
To: Rosemary Stack, Esq.
Steven Brewer, Esq.
Thomas Peterson, Esq.
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the application of WHIBCO, Inc. for a Mined Land Reclamation Permit pursuant to
Article 23, Title 27 of the Environmental Conservation Law
MEMORANDUM TO THE PARTIES
DEC Application No. 5-4140-18/2-1
May 30, 1996
Please note a correction which needs to be made in the April 26, 1996 issues ruling for the above hearing. Near the end of page 14 of the issues ruling, the sentence which begins, "The Village also stated that since the time when the initial mining plans were prepared..." should instead be, "The applicant also stated that..." This sentence refers to a statement at pages 190-191 of the January 5, 1996 issues conference transcript.
Administrative Law Judge
Albany, New York
May 30, 1996
To: Rosemary Stack, Esq.
Steven Brewer, Esq.
Thomas Peterson, Esq.
Ruling Distribution List