Town Board of Rotterdam v. DEC
Lead Agency Dispute
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: Expansion of Sand and Gravel Mining Operation in Town of Rotterdam by Bonded Concrete, Incorporated
This decision to designate the New York State Department of Environmental Conservation through its Region 4 office, Schenectady, NY, as lead agency is made pursuant to 6NYCRR Part 617, Subdivision 617.6(e) of the regulations implementing the State Environmental Quality Review Act (SEQR) and under the criteria for selection of lead agency set forth in paragraph 617.6(e)(5) of those regulations. My decision is based on the fact that protection of a regional sole source aquifer and the utilization and restoration of a mineral extraction site, including protection of wetlands, are matters of regional as well as local significance. The Department of Environmental Conservation (DEC) has available considerable staff expertise for the investigation and mitigation of impacts from this proposed action on behalf of its interests and those of the other involved agencies.
The DEC staff should begin the expeditious environmental review of this proposed action in accord with time frames set forth in Parts 617 and 621 of the Environmental Conservation Law, and in coordination with the other involved agencies, including the Town of Rotterdam.
The proposed action is a 90-acre expansion of a sand and gravel mining operation known as the 5-S Pit in the vicinity of the Hamlet of Rotterdam Junction by Bonded Concrete, Inc. Potential impacts from this action, which have been preliminarily identified, are the effects of subwatertable mining upon groundwater quality and quantity and upon existing ponds and wetlands and associated aquatic resources. Site reclamation for future productive use of the post-mining site, consistent with adjacent recreational and historic resources, is likely to be important in maintaining the integrity and use of such resources.
In a letter of October 15, 1987 from Kathleen D. Kalwa of DeGraff, Foy, Conway, Holt-Harris and Mealey, attorneys for Bonded Concrete, Inc., I was asked to designate a lead agency with respect to this proposed mining action. It was the applicant's contention that a lead agency dispute existed between the Town Board of Rotterdam and the Region 4 office of DEC. Communication with the two involved agencies confirmed that such a dispute exists. In letters to me and to Jerome Jensen of the Division of Regulatory Affairs from Philip H. Dixon of Whiteman, Osterman and Hanna, attorneys for the Town of Rotterdam, dated October 26 and November 4, 1987, respectively, arguments have been set forth for the assumption of the lead agency role by the Town Board. A memorandum to Mr. Jensen dated November 6, 1987, from William Adriance of the Regulatory Affairs unit in DEC Region 4, presents the DEC Region 4 basis to undertake the lead agency responsibility. No other involved agencies have been identified as having interests in this proposed action.
In accord with 6NYCRR paragraph 617.6(e)(5), in resolving lead agency disputes, I must consider the following criteria for selection of lead agency, in order of importance: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest governmental powers for investigation into potential impacts; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
The first criterion for determination of lead agency is the location and extent of potential impacts from the proposed project. Material presented by both the Town of Rotterdam and DEC Region 4 staff lead me to conclude that the impacts are primarily of a multi-community and regional nature. It has been noted that impacts are likely to occur upon the Schenectady aquifer, a designated sole source aquifer of regional and statewide importance as a water supply to a population of approximately 147,000 persons within the Capital District. Contamination of this aquifer would create a significant hazard to public health, according to the U.S. Environmental Protection Agency (see 50 FR 2022, January 14, 1985). Further, the proposed action has potential to affect existing nearby ponds and their associated aquatic resources which may, in turn, impact the aquifer. Such resources are of state concern and a management responsibility of the Department of Environmental Conservation. In addition, the project has potential for adversely affecting a Class I wetland subject to state regulation, and which contains remnants of the old Erie Canal, a historic resource of statewide importance.
The second criterion for consideration under 6NYCRR paragraph 617.6(e)(5) is which agency has the broadest governmental powers for investigation into potential impacts associated with the expansion of this proposed mining operation. Both DEC and the Town of Rotterdam have jurisdiction to regulate aspects of this proposed action. The Town has jurisdiction to control certain impacts to water quality and quantity through their aquifer overlay zone. However, DEC's authority is broader. Article 23, Title 27 of the Environmental Conservation Law supersedes any local regulation of mining and gives DEC exclusive authority over such activities, although the Town retains jurisdiction to more strictly regulate reclamation. Based upon this authority, DEC must make a decision on the adequacy of the mining plan for this proposed action, and give approval to a reclamation plan. In addition, under Article 24 of the Environmental Conservation Law, DEC can control activities in the regulated wetlands which may be impacted by this mining project.
With respect to the third criterion, which agency has the greatest capability for providing the most thorough environmental analysis of the proposed action, it should be recognized that DEC staff has had extensive experience in matters regarding impacts of mining and their relationship to effects on groundwater quality and quantity. DEC staff can provide considerable input into the analysis of impacts of proposed mining activities upon nearby wetlands and other types of natural areas. In addition, DEC staff has reviewed a similar proposal by the applicant and previously served as lead agency for an earlier review. Allowing DEC to serve as lead agency in this matter would provide a degree of continuity and consistency of review.
Based on a careful consideration of all facts presented, I find that the Department of Environmental Conservation, through its Region 4 office, is the agency best suited to act as lead agency in the assessment of the environmental impacts of the expansion of sand and gravel mining operations by Bonded Concrete, Inc. at the 5-S pit in the Town of Rotterdam. This recognizes the regional and statewide aspects of many of the potential significant impacts of this proposed action and the fact that DEC has extensive expertise and experience in the investigation, mitigation and regulation of mining activities and their associated impacts upon natural resources.
This decision does not in any manner limit or minimize the responsibility of all involved agencies to review the entire action. Each involved agency has the responsibility to assist the Department of Environmental Conservation, as lead agency, in completion of the environmental review process. If a draft environmental impact statement is required, all involved agencies should actively participate in scoping and review of the document and should make their own independent findings which must be supported by the record when a final environmental impact statement is produced.
Thomas C. Jorling Commissioner
Dated: December 1, 1987
Albany, New York
Distribution of Copies:
- J.A. Constantino, Supervisor, Town of Rotterdam
W. Adriance, DEC, Region 4
P.H. Dixon, Esq., Whiteman, Osterman & Hanna
S.O. Clemente, Bonded Concrete, Inc.
K.D. Kalwa, Esq., DeGraff, Foy, Conway, Holt-Harris & Mealey
New York State Department of Environmental Conservation:
- L. Marsh