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Town of Perth 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 Champion Rock Products, Inc. to operate a rock quarry on 140 acres of a 200-acre site in the Town of Perth in Fulton County

DISPUTING AGENCIES: Town of Perth Town Board and Region 5 Office,
New York State Department of Environmental Conservation (DEC)

This decision to designate the Region 5 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 DEC has broader jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation.

The proposed project is the application by Champion Rock Products, Inc. to mine and process dolomite rock from 140 acres of a 200-acre parcel in the Town of Perth in Fulton County. The applicant also seeks approval for the construction of a concrete batch plant and asphalt plant on the site. The project site is presently and in the past been in agricultural use.

The Region 5 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to 6 NYCRR Parts 420-425 and Article 23 of the ECL. The proposed construction and operation of an air emission source will also be subject to review under 6 NYCRR Part 201. The Town of Perth does not have a zoning ordinance. However, on April 27, 2000 the Town of Perth Town Board enacted a Mining Moratorium Law which prohibits the establishment of new mines or the expansion of existing mines beyond the "life of mine" currently under permit. This moratorium which has a mechanism for obtaining a waiver will remain in effect until October 27, 2001.

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 Perth identified the following potential environmental concerns regarding the proposed mine:

  • • removal of up to 300,000 tons of rock per year;
  • • mining below the water table and its effect on private wells;
  • • potential for impact to the City of Amsterdam's water transmission line which is located approximately 0.4 miles east of the project site;
  • • addition of approximately 100 truck trips per day to New York State Route 30;
  • • noise impacts from blasting, processing and operation of the concrete and asphalt plants;
  • • potential visual impacts from the conversion of land which is presently in agricultural use to an industrial use; and
  • • impacts from fugitive dust.

Most of the impact identified above are of local concern and will impact the residents of the Town of Perth. However, the potential for impacts to New York State Route 30 from the addition of approximately 100 trucks per day and the potential for impact to the City of Amsterdam's water transmission line from blasting on the site are of regional concern. Because the potential environmental impacts of this project contain impacts that are of both local and regional concern, I must consider criterion number 2 in making my decision.

The next criterion, the breadth of jurisdiction, substantially favors DEC as lead agency. The applicant must obtain a waiver from the Mining Moratorium Law from the Town of Perth Town Board in order for the mine to be operated. The moratorium was enacted to allow the Town a window of time to develop a master plan and a zoning ordinance that will address, among other things, mining operations. The Town of Perth expects that at the conclusion of the moratorium, it will have established zoning districts within the Town. However, it is not a certainty that the Town will enact zoning or if it does enact zoning that the proposed Champion site will be zoned to preclude mining. At present, the only jurisdiction that the Town of Perth has is to decide if a waiver from the moratorium should be granted. The waiver decision is based on eight criteria set out in Section 5 of Local Law 1 of the year 2000 and a consideration of financial hardship. These criteria require consideration of environmental and social issues, but they do not regulate the conduct of mining and reclamation at the Champion site.

In comparison, Champion must obtain 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 Perth;
  • • 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 MLRL 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 present authority to issue or deny the waiver. 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 of Perth 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. It is clear that the jurisdiction of the Region 5 Office regarding mining under the MLRL is much broader than the present jurisdiction of the Town of Perth.

The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. I find that both agencies possess, or could obtain through consultants, the staff to conduct a thorough environmental review. However, DEC staff has considerable experience in the review of mined land reclamation proposals throughout the region. This extensive experience reviewing mining applications affords DEC a greater capability to undertake the environmental review for this project.

I conclude, based on DEC's broader jurisdiction under MLRL, that the Region 5 Office of DEC should be lead agency for the SEQR review for the proposed Champion Rock Products, Inc. mine.

This decision in no way limits the jurisdiction or responsibility of the Town of Perth. The applicant must, prior to commencing the action, either apply for a waiver from the Town Board to allow mining under the moratorium or comply with any requirements that are put in place following the lifting of the moratorium. In its solicitation for lead agency dated June 30, 2000, DEC indicated that, if it were established as lead agency, it would require the preparation of a draft environmental impact statement (EIS). I strongly encourage the Town of Perth to actively participate in scoping so that the EIS contains the information needed by the Town to make its independent SEQR findings in support of its decision to issue or deny its approval.

/s/
John P. Cahill, Commissioner
Dated: 11/8/00
Albany, New York

Disputing Agencies/Applicant:

  • Stuart Buchanan, Regional Director, DEC Region 5
    Richard Wild, Regional Permit Administrator, DEC Region 5
    Thomas Hall, Deputy Regional Permit Administrator, DEC Region 5
    Valerie Orlowski, Supervisor, Town of Perth
    Carmel Greco, Esq., Town of Perth Attorney
    Douglas Zamelis, Esq., Hancock & Estabrook, Special Counsel, Town of Perth
    James Uhlinger, Sr., Champion Rock Products, Inc

New York State Department of Environmental Conservation:

  • Gavin Donohue, Executive Deputy Commissioner
    Victor Gallo, Counsel, Division of Legal Affairs
    Jack Nasca, Division of Environmental Permits
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