Town of Cortlandville Planning Board v. DEC Region 7 Office - NYS Dept. of Environmental Conservation

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Town of Cortlandville Planning Board v. DEC Region 7 Office

New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law

PROJECT: Cortlandville Sand and Gravel Mine Expansion, Town of Cortlandville, Cortland County.

DISPUTING AGENCIES: The Planning Board of the Town of Cortlandville vs. the New York State Department of Environmental Conservation, through its Region 7 office.

I have been asked to designate a lead agency to conduct an environmental review of the proposed Cortlandville Sand and Gravel Mine expansion ("mine expansion project") under the New York State Environmental Quality Review Act ("SEQR"; Article 8 of the New York State Environmental Conservation Law [ECL], with implementing regulations at Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). This designation of the New York State Department of Environmental Conservation, through its Region 7 office ("DEC"), to serve as lead agency is based on the regional nature of the impacts, DEC's comparatively broader jurisdiction and greater capability for providing the most thorough environmental assessment of the mine expansion project.

Action And Site

The mine expansion project involves an application by Rt. 13 Rocks, LLC to enlarge the Cortlandville Sand and Gravel Mine permitted life of mine (LOM)1 area by a total of 11.9 acres, from 66.8 acres to a new LOM of 78.7 acres, and to increase the vertical limit (depth) of the current and proposed excavation area by mining approximately 100 feet into the water table. The mine site is located on NYS Route 13 in the Town of Cortlandville.

Regulatory Setting

The Planning Board of the Town of Cortlandville ("Planning Board") states that it has jurisdiction over the mine expansion based on its site plan review and conditional use permit authorities.2 The Planning Board further states that the mine expansion may be subject to its Aquifer Protection Law through which the Town regulates and controls projects that may affect a sole source aquifer (that provides potable water to half the population in Cortland County including residents of the Town). DEC, on the other hand, has jurisdiction over the proposed mine expansion under the New York State Mined Land Reclamation Law ("MLRL"; ECL §23-2701, et seq.).
The role of lead agency for a SEQR review may only be assumed by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. Both the Planning Board and DEC satisfy the criteria to be considered involved agencies. No other involved agencies have sought lead agency status.

Discussion

In resolving a lead agency dispute, under 6 NYCRR Part 617.6(b)(5)(v), I am guided by the three criteria listed in order of importance as follows:

  1. whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
  2. which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  3. which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

First Criterion

The parties to the dispute identified the following potential impacts from the proposed mine expansion:

  1. impacts to groundwater/aquifer due to proposed mining below the water table;
  2. impacts to the nearby Town water supply well and other sources of water from the Town's sole source aquifer;
  3. impacts (hydrologic) to nearby federally designated wetland bog habitat within the Lime Hollow Nature Center; and
  4. an increase in truck traffic on the mine access road (New York State Route 13).

I conclude that the potential impacts are primarily of regional significance inasmuch as they transcend municipal boundaries. While potential impacts to NYS Route 13 from increased truck traffic are of local concern, impacts to groundwater including to the sole source aquifer and to the federal designated wetland bog habitat are of regional concern. These potential impacts appear to be the predominant ones that may occur from the proposed mining activity. DEC, as a state agency, is in a better position than the Planning Board to investigate and address impacts of regional significance. The first criterion, therefore, favors DEC to serve in the role of lead agency.

Second Criterion

The Planning Board points out that for many years the Town's boards (including the Planning Board) have been involved in regulating and controlling projects that may affect is sole source aquifer. The Planning Board also has significant powers to investigate impacts through is site plan review and conditional use permit jurisdictions. These jurisdictions are, however, limited by state preemption under the MLRL. Under the MLRL, DEC has exclusive authority to regulate all aspects of the project related to mining and reclamation. The MLRL supersedes other state and local laws relating to the extractive mining industry, with a notable exception, that under ECL §23-2703 local governments may regulate mining activity in the following areas:

  1. ingress and egress to public thoroughfares controlled by the local government;
  2. routing of mineral transport vehicles on roads controlled by the local government;
  3. requirements and conditions as specified in the permit issued by the Department under this title concerning setback from property boundaries and public thoroughfare rights-of-way, natural or man-made barriers to restrict access, if required, dust control and hours of operation when such requirements and conditions are established pursuant to ... [the MLRL]; and
  4. enforcement of reclamation requirements contained in mined land reclamation permits issued by the state."

Among the duties granted DEC under the MLRL are issuance of mining permits, administration and enforcement of provisions of the MLRL, establishing environmental standards and criteria for mine reclamation, deciding violations of the MLRL and ordering the immediate suspension of mining or reclamation operations whenever such operations are being carried out in violation of the MLRL.

Further, under MLRL §23-2711, DEC must incorporate into its permit conditions recommendations by the Town's Chief Administrative Officer that are found to be necessary and reasonable, regarding man-made or natural barriers to restrict access to the site, dust control, setbacks, and hours of operation. The DEC must accept such recommendations or provide a written explanation to the local government as to why such recommendations are not incorporated. Nonetheless, the ultimate jurisdiction regarding mining and reclamation under the MLRL remains with the DEC subject to local input.

The Cortlandville expansion will be regulated as part of the overall mining operation at the mine. Under the MLRL, DEC has broader authority to investigate the impacts of the mine expansion than does the Planning Board under its jurisdictional authorities. I, therefore, conclude that the second criterion favors the DEC to serve as lead agency.

Third Criterion

The Planning Board states that its board members have greater knowledge of local conditions than DEC staff as well as training and experience in local affairs that far exceeds that of DEC.

DEC, on the other hand, has a staff of professionals with unique and long-standing expertise in regulating mining operations, SEQR review and natural resource protection. In addition, DEC through its Region 7 office has reviewed applications, issued renewals for the Cortlandville MLRL permit since 1990 and conducted routine inspections. DEC staff are, therefore, familiar with the site and surrounding area.

While recognizing the expertise of the Planning Board, I conclude that this criterion favors DEC, through its Region 7 Office to serve as lead agency.

Findings

I find that DEC, through its Region 7 Office, should serve as lead agency for the SEQR review of the proposed mine expansion based on the three listed lead agency criteria. My determination is in keeping with the statutory direction under ECL §8-0111.6 that "[w]hen an action is to be carried out or approved by two or more agencies, the determination of whether the action may have a significant effect on the environment shall be made by the lead agency having principal responsibility for carrying out or approving such action..." Here, the DEC has principal responsibility under the MLRL for considering whether or not the proposed mine expansion should be approved.

This designation in no way changes or diminishes the responsibilities or authority of the Planning Board or other involved agencies with jurisdiction over the project. While designating DEC as lead agency, I must remind it to remain aware of all potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. In developing the record through the SEQR process, I am directing DEC staff to ensure that the Planning Board's concerns are given due consideration through the ECL §23-2711 and SEQR processes.

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1 The "Life of Mine" or "LOM" area is the total area of land to be mined over the entire period of time that mining is planned to occur at the site. Applicants for Mined Land Reclamation Law permits are required to describe such areas as part of the permitting process so that impacts may be identified and mitigated over the entire period the mine is to be in operation. See St. Lawrence Cement Company, First Interim Decision of the Commissioner, September 8, 2004, page 11, ft. 12 (December 6, 2002). Normally, within the LOM, mining proceeds in phases. The affected acreage is the area currently impacted by mining activities. The mine operator conducts concurrent reclamation of the previous phase.

2 Site plan approval is a regulatory technique requiring municipal approval of the layout and design of development on a single parcel of land. See Town Law §274-a (McKinney's 2013). A special permit [alternatively referred to as a "conditional use permit"] authorizes the use of property in a fashion that is consistent with a community's zoning law subject to conditions that a board may impose to assure consistency. See Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195 (2002).

Dated: September 5, 2017
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of Copies
Disputing Agencies/Applicant
Richard Tupper, Supervisor, Town of Cortlandville
NYSDEC Region 7 office, Division of Environmental Permits, Attn.: Joe Dlugolenski, Deputy Regional Permit Administrator (e-copy)

Applicant
Carol Simon, Rt.13 Rocks LLC (e-copy)

Involved / Interested Parties
John B. Folmer, Esq., Town Attorney, Town of Cortlandville (e-copy)

New York State Department of Environmental Conservation
Lawrence H. Weintraub, Office of General Counsel, Central Office (e-copy)
Catherine A. Dickert, Director, NYSDEC (Central Office) Division of Mineral Resources (e-copy)
Joseph Sluzar, Regional Attorney (e-copy)
Matthew Marko, Regional Director (e-copy)

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