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DEC v. Town of Mamakating

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 Dick's Concrete to expand an existing sand and gravel mine in the Town of Mamakating, Sullivan County

DISPUTING AGENCIES: Region 3 Office, New York State Department of Environmental Conservation (DEC) and the Town of Mamakating Planning Board

This decision to designate the Region 3 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's broader jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation and its experience in reviewing mining projects outweighs the local nature of the impacts in the designation of a lead agency for this project.

The proposed project is the application by Dick's Concrete to expand the existing Spring Glen sand and gravel mine by excavating approximately 24 to 44 feet deeper than currently allowed under the existing MLRL permit. This modification will allow the removal of up to 1.0± million cubic yards of additional material. The mine is located on an 83-acre parcel in the Town of Mamakating, Sullivan County.

The Region 3 Office of DEC has jurisdiction to issue or deny a modification to a MLRL permit pursuant to 6 NYCRR Parts 420-425 and Article 23 of the ECL. The Town of Mamakating Planning Board is required to issue a special use permit and site plan approval following the issuance of a variance from the Town of Mamakating Zoning Board of Appeals since, according to the Town of Mamakating, mining is not a permitted use in the subject zone. The applicant contends that the activity is grandfathered as a pre-existing, non-conforming use.

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 Mamakating Planning Board identified the following potential environmental concerns regarding the expansion of mining operations including: the removal of an additional 1.0± million cubic yards of material; transportation of materials from the site to locations outside of the Town of Mamakating; noise impacts from blasting, processing and transportation; absence of any reclamation on the site from the existing mining operation; public safety due to a lack of site security; potential visual impacts from the operation of a mine in an area zoned for residential use; and impacts from fugitive dust.

Most of the impacts identified above are of local concern and will impact the residents of the Town of Mamakating. However, this site is presently mined and the proposed expansion will not significantly change either the potential for impacts or the location of the impacts. By listing the criteria in order of importance, the regulations require me to designate a local agency lead where the impacts from a proposed action are primarily local and the disputing agencies have equal powers for investigation and capabilities for providing thorough environmental assessment. Both agencies agree that the location of the impacts are primarily local. Assuming the agencies involved have equivalent powers under the remaining criteria, this would result in the designation of a local agency as lead agency.

In resolving this dispute, however, I conclude that the other two considerations reveal considerable disparities between the involved agencies; therefore, the proposed action's localized impacts should not serve as the basis of this decision.

In particular, the next criterion, the breadth of jurisdiction, substantially favors DEC as lead agency. The project sponsor must renew and modify a MLRL permit for the site 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 Mamakating;
    • 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 authority. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL supersedes 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 Mamakating 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 3 Office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Town of Mamakating Planning Board.

The Town of Mamakating Planning Board's jurisdiction has been questioned by the project sponsor. The environmental assessment form submitted with the application states that the activity is grandfathered from compliance with the provisions of the Town of Mamakating Zoning Law. The Town of Mamakating, in its submissions, has noted that Section 199-20 of the Town of Mamakating Zoning Local Law states: "No existing building or premises devoted to a non-conforming use shall be enlarged, extended, reconstructed, substituted or structurally altered except when changed to a conforming use or when required to do so by law...". The authority of the Town of Mamakating over this application will have to be resolved before the activity can commence. Even if the position of the Town of Mamakating is upheld, it would not have the breadth of authority to address the major impacts associated with the mining. The major concerns identified by the Town in its submissions with regard to reclamation clearly fall under the exclusive regulatory authority of the DEC. It is the exclusive nature of DEC's jurisdiction over mining and reclamation that causes me to find in favor of the Region 3 Office in the application of this criterion.

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 and its greater experience in the review of mining applications, that the Region 3 Office of DEC should be lead agency for the SEQR review for the proposal by Dick's Concrete to expand the existing Spring Glen sand and gravel mine. The combination of the breadth of jurisdiction and the experience of the DEC Region 3 Office in the review of mining applications outweighs the local nature of the impacts in designating a lead agency for this review.

This decision in no way limits the jurisdiction or responsibility of the Town of Mamakating. The applicant must, prior to commencing the action, resolve the issue of the applicability of the Town of Mamakating Zoning Law to the proposed expansion of mining at the site. I strongly encourage the Town of Mamakating to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Town of Mamakating to support its decision to issue or deny its approvals, if such approval are needed.

/s/
Erin M. Crotty, Commissioner
Dated: June 27, 2001
Albany, New York

Disputing Agencies/Applicant:

  • Marc Moran, Regional Director, DEC Region 3
    Margaret Duke, Regional Permit Administrator, DEC Region 3
    Mary Barbuti, Supervisor, Town of Mamakating
    John Piazza, Chairman, Town of Mamakating Planning Board
    Zachary Kelson, Esq., Town of Mamakating Planning Board Attorney
    Bonnie Penaluna, Dick's Concrete, Inc.
    Gary Greenwald, Esq., Attorney for Dick's Concrete, Inc.

New York State Department of Environmental Conservation:

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