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DEC v. Town of Clarendon

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 Clarendon Quarry, Town of Clarendon, Orleans County, by Genesee LeRoy Stone Corp.

This decision to designate the Department of Environmental Conservation (DEC) Region 8 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 Part 617, the statewide regulations governing SEQR. My decision is based on the fact that DEC has the broadest governmental powers for investigation of the impacts of the proposed action as well as the greater expertise required for a thorough environmental review.

This lead agency dispute involves a proposal by the Genesee LeRoy Stone Corporation of Batavia, New York to modify and expand its existing quarry operations presently located about 1,600 feet south of the center of the hamlet of Clarendon, between N.Y. Route 237 and Upper Holley Road in the Town of Clarendon, Orleans County.

The new area would add 122 acres to the overall site, making the total site 221 acres. Eighty-nine of the added 122 acres would be excavated west of Upper Holley Road, starting with an initial permit area of about 5 acres. The present quarried area and stone processing plant area also cover about 89 acres. The existing stone processing plant would be moved from a point near Route 237 down into the existing quarry. The surface area of the quarry expansion consists of abandoned muckland farm fields. The underlying Lockport dolomite formation would be the source of the stone products produced.

In a letter to me of November 28, 1988, Mr. Peter J. Bush, Regional Director of the DEC Region 8 office, asked that I designate Region 8 as lead agency to coordinate the required review under SEQR. Accompanying this request was a copy of the Town of Clarendon's response to a DEC Region 8 solicitation regarding assumption of lead. The Town Board, in a letter of October 19, 1988 signed by Supervisor John R. Pedley, expressed its desire to be lead agency, but designated the Planning Board as "contact agency on its behalf."

Region 8 forwarded correspondence from the County of Orleans Industrial Development Agency (IDA) indicating its involvement in providing funds for some aspects of the proposed project; the IDA, however, declined to serve in a lead agency role. Attorneys for the IDA have provided their interpretation of a 1980 opinion of the State Attorney General regarding another community's attempt to control an IDA direct action, suggesting that the Town of Clarendon has no authority or jurisdiction related to this project.

In addition, Region 8 has presented arguments that the Town's zoning ordinance and special use permit are superseded by the Mined Land Reclamation Law (ECL section 23-2701 et seq., MLRL) as a result of court decisions related to town ordinances elsewhere.

This lead agency resolution is not dissimilar to several others I have been called on to make recently related to the MLRL. The Legislature, in Section 23-2703, has provided that the fostering and development of a mining industry shall be a policy of the state. It also has provided that the development and management of the state's mineral resources and the reclamation of mined lands will be carried out in a manner which will protect the health, safety and general welfare of the people, as well as natural beauty and aesthetic values. The MLRL supersedes all other state and local laws related to the mining industry operations, except general local zoning ordinances or local laws which impose stricter mined land reclamation requirements than the MLRL. Court interpretations of the MLRL have made it clear that local jurisdiction is limited to general local land use controls not specific to mining. DEC's regulations of the manner in which mining activities will occur are paramount.

It is not within my authority solely to base my lead agency determination on the validity of either IDA or MLRL supersession of local jurisdiction. Such issues must ultimately be resolved in another forum, as appropriate. The Clarendon Town Board's status as an involved agency is accepted for purpose of this determination, and I must weigh the qualifications of that agency along with those of DEC Region 8 for conduct of the environmental review for this project under SEQR. Nevertheless, SEQR requires that a lead agency be the agency principally responsible for approving the action (ECL section 8-0111.6). Since DEC has almost exclusive responsibility to approve mining operations, it follows, therefore, that circumstances dictate that that scope of jurisdiction and responsibility be given great weight in resolving this dispute.

In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in Section 617.6(e)(5) 6 NYCRR. The first of these criteria is whether the anticipated impacts are primarily of local, regional or statewide significance. In this respect, the Town of Clarendon has indicated that factors to be considered, among others, are the effects on the local water supply, vibration, dust and noise pollution, air and water emissions and traffic generation. These primarily local impacts have been acknowledged by DEC staff, who also have pointed out considerations of regional and statewide interest which, in accord with ECL 23-2703, include the need to provide a high quality dolomite resource for regional and statewide use.

The second criterion for consideration in resolving a lead agency dispute is which agency has the broadest powers for investigation of the potential impacts. Although the Town of Clarendon must consider appropriate conditions which should be applied to the granting of a special use permit, those considerations of dust, fumes, noise, water supply and traffic are incidental to the activity of mining. I have already noted above that DEC has exclusive authority to regulate all aspects of the operations of extractive industries and to provide for subsequent reclamation of mined lands. DEC's jurisdiction over mining and its attendant environmental impacts is clearly broader than the limited local jurisdiction and under the legal framework for resolving this dispute, this factor becomes more critical.

The third criterion in resolving a lead agency dispute is which agency has the greatest capability to provide a thorough environmental assessment of the proposed action. DEC staff has had considerable experience in the review of mined land proposals and site reclamation. Thus, the expertise to conduct this assessment is within the Department.

I therefore conclude, based on all the facts presented, that the Department of Environmental Conservation best serves the role of lead agency for conduct of review under SEQR for the proposed expansion of the Clarendon Quarry because DEC has far broader authority to examine state, regional and local impacts and has the expertise to do so.

During the course of my resolution of this lead agency dispute, I have received a substantial amount of correspondence from citizens residing in the vicinity of the Clarendon Quarry. These letters, for the most part, expressed concerns about the continued operation of a quarry in their community. This issue is not one which can be settled through the resolution of a SEQR lead agency dispute. The ultimate state and local jurisdictions remain, no matter which agency conducts the process. Acceptance or rejection of quarrying as a land use activity is a local function. DEC has no such zoning authority. DEC's authority under the Mined Land Reclamation Law is to control the manner in which mining operations are conducted and reclaimed to minimize or avoid significant environmental effects. Concerns about the operation may be expressed during the public comment period allowed during permit application and SEQR review processes.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review this entire proposed action and to assist the DEC staff in completion of the environmental review process.

/s/
Thomas C. Jorling Commissioner
Dated: Jan. 23, 1989
Albany, New York

Disputing Agencies:

  • Supervisor John Pedley, Town of Clarendon
    Maejel Robertson, Chairman, Clarendon Planning Board
    Karl S. Essler, Esq., F.S.T.H. & S.
    Wayne Hale, Director, Orleans Co. Planning Department
    Louis D. Salen, Adm. Director, Orleans County IDA
    Douglas G. Hicks, Exec. V.P., Genesee LeRoy Stone Corporation
    Peter J. Bush, Regional Director, DEC Region 8

New York State Department of Environmental Conservation:

  • T. Jorling
    L. Marsh
    M Gerstman (Legal Affairs)
    G. Bowers (Legal Affairs)
    W. Little (Legal Affairs)
    G. Sovas (Minerals)
    J. Jensen/F. Howell (DRA)
    A. Butkas (Reg. 8 - Avon)
    J. Cole (Reg. 8 - Avon)
    S. Keister (Reg. 8 - Avon)

FWH:jif a:clarendo.fwh

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