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Town of East Greenbush v. DEC v. Rensselaer County

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: Rifenburg Construction Inc., Cipperley Farm Mine DEC # 4-3842-00026/00004-0

DISPUTING AGENCIES: Town of East Greenbush Zoning Board of Appeals
New York State Department of Environmental Conservation - Region 4 Office
Rensselaer County Department of Engineering and Highways

This decision to designate the Department of Environmental Conservation (DEC) Region 4 as the lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617. I find that the Department of Environmental Conservation has the broadest governmental powers for the investigation of the impacts of the proposed action, as well as the greater expertise required for a thorough environmental review.

The proposed project is the application of Rifenburg Construction to mine sand and gravel on 25.9 acres. This action requires the issuance of a Mined Land Reclamation Permit pursuant to Article 23, Title 27 of the Environmental Conservation Law (ECL) by the DEC. The action also requires the issuance of a special use permit by the Town of East Greenbush Zoning Board of Appeals (ZBA) to operate a mine in a R-A Zoning District. The Rensselaer County Department of Engineering and Highways must give the applicant permission to access Rensselaer County Route 55 (Best Road).

The DEC originally received an application to mine sand and gravel from Rifenburg Construction Inc. on March 12, 1990. The application was determined complete and a negative declaration was issued on November 13, 1991. A permit to mine sand and gravel was issued on February 24, 1992. However, DEC realized that it had failed to coordinate the review with the ZBA and on May 29, 1992 a Notice of Intent to Suspend the Permit was sent to the applicant. Since there was no objection to the suspension, DEC commenced the coordination process which has resulted in this dispute.

This request for resolution of a lead agency dispute is not dissimilar to several others I have been called on to make relating to the Mined Land Reclamation (ECL Section 23-2701 et seq., MERL). The MLRL supersedes all other state and local laws related to the regulation of mining except for local land use or zoning ordinances. Recent MLRL legislation has provided specific guidance regarding local government involvement in the review of mining applications. Local governments can advise the DEC in regard to: setbacks from property boundaries and public thoroughfares and right-of-way; manmade or natural barriers designed to restrict access if needed and if affirmative, the type, length, height and location of barriers; dust control; hours of operation; and whether mining is prohibited at the proposed location. DEC must incorporate into the permit those determinations that are found to be reasonable and/or must provide a written explanation to the local government if any or part of the determinations have not been incorporated.

In resolving a dispute about lead agency I am guided by the three criteria listed in order of importance in 6 NYCRR paragraph 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.

The first criterion involves the location of the impacts. The ZBA has noted potential transportation impacts such as: site access, use of local roads by heavy trucks, control of site access, and fugitive dust from loaded vehicles and use of haulage roads. In addition, the ZBA has identified potential visual impacts, noise, erosion/sedimentation and community character as issues of concern. The DEC Region 4 Office has identified traffic, noise, cultural resources, ground/surface water, loss of agricultural lands and subsequent reclamation following mining as issues of concern. DEC has also noted the existence of 5 permitted sand and gravel operations within a 3 mile radius of the proposed Cipperley mine site and 3 proposed mines that are currently under review (which include environmental impact statements) within the same 3 mile radius. There is a need to determine whether there may be significant cumulative impacts. If so, DEC is authorized to mitigate them, but the Town is not. These mines which are located in the Towns of East Greenbush, North Greenbush and Sand Lake illustrate that there is a also a need to assess the potential for regional impacts as part of this review.

The second criterion for consideration is which agency has the broadest powers for investigation of the potential impacts. As discussed above, the MLRL gives to DEC the exclusive authority to regulate all aspects of the mining and reclamation of mined lands. Many of the impacts identified by the ZBA and the means to mitigate them fall within the exclusive authority of DEC.

Other impacts identified by the ZBA such as access, visual (controlled by providing adequate setbacks/screening) and applicability of local land use controls are areas where the local municipality is provided with a specific role in the review process by the MLRL.

The exclusive authority provided DEC by the MLRL and the existence of 8 other mines (5 permitted and 3 under review with DEC serving as lead agency) in the same general area but in three different towns clearly gives DEC the broader jurisdiction. The third criteria also favors DEC as lead agency. DEC staff has considerable experience in the review of mined land proposals and site reclamation. The level of expertise available to DEC would be difficult for any town to obtain even through the use of consultants.

I conclude, based on the facts presented, that the Department of Environmental Conservation, Region 4 Office best serves the function of lead agency for conduct of the environmental review for the Rifenburg Construction Inc., proposed Cipperley Farm Mine due to the exclusive authority provided DEC for the review of mining operations and the regional perspective necessary to consider the cumulative impacts from mines in the surrounding area.

This decision does not in any way change or limit the jurisdiction of any of the involved agencies or minimize their responsibilities to review the proposed action and assist DEC in carrying out their responsibilities as lead agency. The Town of East Greenbush still retains the decisionmaking authority provided by the special use permit and this decision in no way limits the exercise of that authority.

/s/
Thomas C. Jorling, Commissioner
Dated: October 16, 1992
Albany, New York

Distribution of Copies:

  • Anthony Adamczyk, Director, Region 4 Office, NYS Dept. Env. Cons.
    William Haney, Chairman, Town of East Greenbush ZBA
    Michael Van Voris, Supervisor, Town of East Greenbush
    James Flanigan, Councilman, Town of North Greenbush
    John Rifenburg, Rifenburg Construction
    Suzanne Chester, Attorney, Rifenburg Construction
    Wanda Chenot, People for Environmental Quality
    Rosemary Nichols, Attorney, People for Env. Quality

New York State Department of Environmental Conservation:

  • Commissioner Jorling
    L. Marsh
    M. Gerstman
    G. Kamaras
    J. Sama
    J. Stallmer
    B. Clarke
    M. Higgins
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