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Town of Riverhead 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: Application by Calverton Industries, LLC to mine sand and gravel on 42 acres of a 51-acre site in the Town of Riverhead in Suffolk County

DISPUTING AGENCIES: Town of Riverhead Town Board and Region 1 Office, New York State Department of Environmental Conservation (DEC)

This decision to designate the Region 1 Office of DEC as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my findings that the impacts are primarily regional in nature and that DEC has a broader jurisdiction under the Mined Land Reclamation Law to regulate all aspects of mining and reclamation.

The proposed project is the application of Calverton Industries, LLC to mine sand and gravel on a 42-acre portion of a 51-acre parcel on Route 25 in the unincorporated Hamlet of Calverton in the Town of Riverhead, Suffolk County. The site is currently zoned Industrial 'B' which allows mining with the issuance of a special permit.

The Region 1 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to 6 NYCRR Parts 42-425 and Article 23 of the ECL. The Town of Riverhead Town Board has the jurisdiction to issue or deny a special permit.

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

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. DEC and the Town of Riverhead identified the following potential environmental concerns regarding the proposed mine:

  • • impacts to surface and groundwater resources because the site is located in a Special Groundwater Protection Area and the deep flow groundwater recharge area;
  • • potential archeological/cultural resources impacts; and
  • • fugitive dust, traffic and noise impacts.

The Town of Riverhead supplied a document referenced as "Calverton Hamlet Study Industrial Land Chapter" on pages D-7 through D-5 of its submission. On page3 of this submission it states, "In 1978 the Long Island Comprehensive Waste Treatment Management Plan (208 Study) identified the industrially zoned land within the Calverton Hamlet as lying exclusively over a recharge area critical to the provision of water supply to the residents of the County" (emphasis added). Further down the page in the second paragraph, "The intent of this planning effort (Long Island Comprehensive Special Groundwater Protection Area Plan) was to further protect groundwater resources necessary for the welfare of the residents of the Nassau- Suffolk Region" (emphasis added).

The fact that the site is within a Special Groundwater Protection Area and within the deep flow groundwater recharge area are an important consideration because the sole source aquifer underlying large portions of Long Island supplies the drinking water for all of its residents. Any potential for impact to the water supply for all Long Island residents extends beyond the borders of any one town and is regional in nature.

The Town identified potential impacts to archeological/cultural resources which will require DEC to consult with the Office of Parks, Recreation and Historic Preservation (OPRHP) to determine whether the site is within an area of sensitivity as identified on their archeological inventory map. The State Historic Preservation Act recognizes archeological resources to be of statewide concern.

Based on the potential for impact to the sole source aquifer, I find that the impacts from the proposed Calverton Industries sand and gravel mine are regional in nature.

The next criterion, the breadth of jurisdiction, also favors DEC as lead agency. The applicant must obtain a special permit from the Town of Riverhead Town Board and a Mined Land permit from DEC. The MLRL preempts local regulation of mining and the Town's ability to condition the activities on the site is limited to the following:

  • • ingress and egress to public thoroughfares controlled by the Town of Riverhead;
  • • routing of mineral transport vehicles on town roads;
  • • requirement and conditions as specified in the mined land permit concerning setback from property boundaries and public thoroughfare rights-of-way, natural or man-made barriers to restrict access, dust control and hours of operation; and
  • • enforcement of reclamation requirements contained in the permit issued by DEC.

DEC has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of DEC's jurisdiction under MLRL is superior to the Town's special permit. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL superseded all other state and local laws related to the regulation of mining. DEC must incorporate into its permit conditions, those recommendations by the Town that are found to be reasonable or DEC must provide a written explanation to the local government if any or part of the recommendations are not incorporated.

The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. Since the analysis of this project shows that the location of the impacts are regional and favor the DEC Region 1 Office, and that the breadth of jurisdiction under MLRL is superior to the Town's special permit and, likewise, favors the DEC Region 1 Office, the third criterion need not be addressed.

I conclude, based on the potential regional impacts and DEC's broader jurisdiction under MLRL, that the Region 1 Office of DEC should be lead agency for the SEQR review for the proposed Calverton Industries, LLC sand and gravel mine.

This decision in no way limits the jurisdiction or responsibility of the Town of Riverhead. The applicant must apply for and obtain the necessary Town approvals prior to commencing the action. I encourage the Town of Riverhead to continue to identify all of its environmental concerns so that the DEC Region 1 Office can consider them when it determines the significance of the proposed action.

/s/
John P. Cahill, Commissioner
Dated: 5/1/98
Albany, New York

Disputing Agencies/Applicant:

  • Ray E. Cowen, Director, DEC Region 1 Office
    John Pavacic, Regional Permit Administrator
    Vincent G. Villella, Town Supervisor
    Michael Cholowsky, President, Calverton Industries

New York State Department of Environmental Conservation:

  • Victor Gallo
    Jack Nasca
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