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Permit Processing

Technical Guidance Memo MLR92-2

Implementation of the New Mined Land Amendments
in Regard to Permit Processing

May 4, 1992

This guidance is intended to outline the procedures to be used in processing Mined Land Reclamation permits under the Mined Land Reclamation Law. Four basic principles have guided us in developing the implementation of this legislation:

  • The amendments to the law were intended to simplify the permit process.

  • In some respects, the amendments to the law were a codification of existing case law.

  • The amendments were intended to provide uniform statewide regulation of mining and clarify the roles of state government and local governments in regard to regulation of mining and reclamation.

  • The amendments contain language that was designed to provide input from local governments on local impacts from applications, whether or not an environmental impact statement is required.

  1. Complete Application

    The new law states that a complete application for a new mining permit shall contain a statement by the applicant that mining is not prohibited at that location. For purposes of application completeness, the Department will rely exclusively on the applicant's statement concerning prohibition and will not involve itself in matters of dispute between local government and the applicant.

  2. Incomplete Application

    A new application is determined to be incomplete in this regard only if:

    1. the applicant fails to submit a statement which indicates mining is not prohibited;

    2. the applicant indicates that mining is prohibited at that location;

    3. the application is for a permit to mine within counties with a population of one million or more which draws its primary source of drinking water from a designate sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.


  3. Coordination Statewide, Except Long Island

    The Department will continue to assert lead agency status without inquiring about local prohibitions. The attached letter (Attachment A) is a model form for fulfilling the Department's SEQR obligations. In all cases if the local government indicates at any time before completeness that mining is prohibited, the Department will continue to process to completeness. The law mandates coordination with local governments after completeness determination has been made (§23-2711.3). Local governments can make a determination and notify the department and applicant in regard to:

    1. setbacks from property boundaries and public thoroughfares and rights-of-way;

    2. manmade or natural barriers designed to restrict access if needed, and if affirmative, the type, length, height, and location thereof;

    3. dust control;

    4. hours of operation; and

    5. whether mining is prohibited at that location.


  4. Coordination, Long Island

    In Region 1 the SEQR coordination letter will be accompanied by a statement that inquires whether local zoning or ordinances prohibit mining uses within the area proposed to be mined. This satisfies the requirement contained in the law (§23-2703.3) whereby no agency of the state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.

    In these instances, DEC accepts the determination of local prohibition only from the Chief Administrative Officer (CAO). For purposes of application completeness, the Department will rely exclusively on the local government CAO's determination concerning prohibition and will not involve itself in matters of dispute between local government and the applicant. Upon receipt of the statement of local prohibition, declare the application incomplete and notify the applicant that processing cannot go forward unless local prohibition is removed.

  5. Local Involvement

    After completeness determination has been made and after the local government has provided comments as per §23-2711.3(v), the Department will do the following:

    1. If the Department finds that the determinations made by the local government pursuant to paragraph (a) of §23-2711.3 are reasonable and necessary, the Department shall incorporate these into the permit, if one is issued. If the Department does not agree that the determinations are justifiable, then the Department shall provide a written statement to the local government and the applicant, as to the reason why the whole or a part of any of the determinations has not been incorporated.

    2. If the comments received after completeness determination include a statement that mining is prohibited, the Department will also do the following:

      1. Proceed 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.

      2. In lieu of immediately proceeding to permit issuance/denial, the Department may coordinate with the applicant on the possibility of suspending the Uniform Procedures Act (UPA) time frames for a period not to exceed six months in order to resolve the matter of local prohibition if one exists. This coordination must include an explanation to both the applicant and local government CAO that issuance of a DEC permit does not relieve the applicant of the need to obtain any required local permits or approvals, and that annual regulatory fees must be paid, even if the applicant is never allowed to mine due to local prohibitions. Letters to be used for this purpose are attached (Attachments B and C) and should be sent out immediately upon receipt of the local CAO's comments in response to notice of completeness.

      3. If, in the case of Region 1, a statement of local prohibition is contained with comments to the notice of completeness, the Department will stop processing the application based solely on the determination that mining is prohibited.

      4. If the project has received a positive declaration requiring an EIS or a hearing is required, Departmental staff will not propose or recommend that the question of local jurisdiction or prohibition of the mining activity be an issue for adjudication.


  6. Benefits

    The above approach is intended to solve a number of problems:

    1. Resolves lead agency and SEQR coordination with local government.

    2. Removes DEC from making decisions or interpretations of local government laws or ordinances.

    3. Simplifies administration of application processing and saves significant DEC staff resources.

    4. Avoids litigation that would otherwise result from DEC interpreting of local land use laws.

    5. Makes the program consistent with existing procedures administered through UPA.

    Before enactment of these amendments, the policy of the Department was to process applications in spite of any local prohibitions that might exist. We have determined that no language within the new amendments to the Mined Land Reclamation Law mandates that this procedure be changed except in respect to Long Island.



Attachment A

Dear Sir:

The Region [ ] Office of the New York State Department of Environmental Conservation (DEC) has received an application for a mining permit in your [COUNTY/TOWN/VILLAGE]. The applicant, [NAME], proposes to mine [MINERAL] from [ACRES] located at [LOCATION]. This project is subject to the State Environmental Quality Review Act (SEQR).

The letter is provided to inform you that the Department of Environmental Conservation proposes to act as lead agency for the SEQR review of this mining permit application. Recently enacted amendments to the Mined Land Reclamation Law (MLRL) have affirmed that only the State can regulate mining operations under the MLRL. Therefore, we believe that DEC has principal environmental review responsibility for this action.

Should your [COUNTY/TOWN/VILLAGE] have direct jurisdiction over activities proposed by the applicant, and you wish to be lead agency, a dispute may be brought before the Commissioner of Environmental Conservation in accordance with the SEQR rules and regulations (Title 6 of the Official Compilation of Codes Rules and Regulations, §617.6(e)).

If you have any questions, or need clarification, please contact me. Sincerely,

Regional Permit Administrator



Attachment B

Dear Applicant:

Your application for a NYSDEC Mined Land Reclamation permit has been deemed complete; however, the Chief Administrative Officer of the local government in which this project has been proposed has advised the Department that mining is prohibited at this location.

Please be advised that if a permit is issued by the Department, this does not relieve you of the responsibility for obtaining other permits, approvals, lands, easements and rights-of-way that may be required for this project. In addition, beginning from the effective date of the permit, annual regulatory fees must be paid, even if you are never allowed to mine at this location due to local prohibitions.

An opportunity exists within the framework of the Uniform Procedures Act to suspend the time frames under which the Department must make a decision on permit issuance or denial. If you chose to explore this option, the processing of your permit application will be suspended for six months in order for you to resolve the matter of local prohibition with the local government. If not resolved at the end of the suspension period, the Department will make a decision based on the merits of the application.

To take advantage of this opportunity, you must contact us within fifteen days of the date of this letter. Sincerely,

Regional Permit Administrator



Attachment C

(Only Addresses Prohibitions)

Re: Mined Land Reclamation Permit Application
RCIS # -
MLF # -

Dear Chief Administrator Officer:

The Department has received your comments regarding the above Mined Land Reclamation Permit application that mining is prohibited at that location due to local zoning ordinances or laws. The Department will process to permit issuance or denial solely based upon the contents of the application and all coordinated technical and environmental reviews.

[Add appropriate response for any other recommendations.]

The prohibition has been noted and a letter advising the applicant of this prohibition has been sent by the Department. The applicant has been advised that if a permit is issued by the Department, he/she is not relieved of the obligation of obtaining all necessary local permits, approvals, lands, easements and rights-of-way that may be required for this project.

If you have any questions, or need clarification, please contact me. Sincerely,

Regional Permit Administrator


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