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Village of East Nassau v. DEC Lead Agency Dispute

PROJECT: Application by Callanan Industries, Inc. to develop a new hard rock quarry (Nassau Mine) in the Village of East Nassau and Town of Nassau, Rensselaer County

DISPUTING AGENCIES: Village of East Nassau and Region 4 Office, New York State Department of Environmental Conservation

This decision to designate the Region 4 Office of the New York State (NYS) Department of Environmental Conservation (DEC) as lead agency for the conduct of the environmental review under the NYS Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the NYS Environmental Conservation Law (ECL) and 6 New York Codes, Rules and Regulations (NYCRR) Part 617. This decision is based primarily on my finding that DEC has broad authority under the NYS Mined Land Reclamation Law (MLRL) which governs all aspects of mining and reclamation and applies across municipal boundaries.

The proposed project is the application by Callanan Industries, Inc. (Callanan) to develop an approximately 76-acre hard rock quarry within a 111-acre parcel located along the eastern boundary of the Village of East Nassua (Village) and the Town of Nassau (Town), Rensselaer County, with the majority of the parcel and proposed mine being located within the Village. The proposed mining operation would include blasting as well as on-site processing of the quarried material. The proposed mine site is located east of NYS Route 66 on County Route 21, east of Hoags Corners and south of Dunham Hollow Road.

The disputing agencies are DEC and the Village. DEC has jurisdiction to issue or deny an MLRL permit pursuant to Article 23 of the ECL, 6 NYCRR Parts 420-425. Although Callanan indicated on its application to DEC that there are no local prohibitions on mining at this site, the Village Land Use and Development Regulations prohibit "commercial excavation" and "excavation/mining" in all land use districts within the Village under Village Local Law 4 of 2002. Thus, mine development on the Village portion of the property would require that the Village modify, or grant Callanan a variance from, its local land use regulations to allow the proposed mining. The Village indicates that it has not yet received any application from Callanan, however, mining on the Village portion of the property could not occur until and unless the Town acts. The Town did not respond regarding this dispute, but based on several prior mining cases in the same Town, DEC's filing describes the Town as having multiple jurisdictions: Site Plan Approval by the Town Planning Board, and a Special Use Permit by the Town Board taking into account a mandatory recommendation from the Town Planning Board.

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:

  • 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);
  • which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  • 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. Both DEC and the Village identified a range of potential impacts related to development and operation of a new hard rock quarry at the proposed site. Many of the potential impacts of the proposed quarry would be those common to mining operations generally, including noise and fugitive dust concerns from general operations plus blasting. In this case, noise, dust and similar operational impacts would most likely be realized locally while visual and traffic impacts may have broader reaches. Callanan also asserts that the availability of the class of material that this mine could produce would be regionally significant because of the material's utility in highway projects. Accordingly, I cannot reach a determination based on the first criterion.

The second criterion, breadth of authority, clearly favors the DEC. As a state entity, DEC's jurisdiction applies to the entire mine site. Further, DEC has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. Decisions on prior lead agency disputes have recognized that the MLRL supercedes all other state and local laws related to the regulation of mining.

In contrast, while localities can use zoning to direct locations of mines, the MLRL preempts all other state and local laws related to the regulation of the actual mining operation. Localities' ability to condition mining activities on the site is limited to those areas named in the MLRL:

  • ingress and egress to public thoroughfares controlled by the Village or Town;
  • routing of mineral transport vehicles on Village or Town roads;
  • developing requirements and conditions for inclusion 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 must incorporate into its permit conditions those recommendations by the Village and Town that are found to be reasonable, or provide a written explanation why any or part of the recommendations are not incorporated. It is clear that the jurisdiction of the Region 4 DEC office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of either the Village or the Town.

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. DEC staff have considerable experience with environmental impact assessments for mines in general, and have conducted environmental analyses of a number of mines and other projects proposed in Rensselaer County. The Village indicated that it would need, and is able, to arrange for consultant services to assist it in conducting an environmental review of this proposed mine; DEC supported that conclusion. Thus, I find that both agencies possess, or could obtain through consultants, the expertise 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 of this project.

I, therefore, conclude that the Region 4 office of DEC should be lead agency for the SEQR review of the proposal by Callanan to create and operate an approximately 76-acre hard rock quarry, based on the DEC's broader authority under the MLRL and its greater experience in the review of mining applications.

This decision in no way limits the jurisdictions or responsibilities of the Village, or of the Town. Callanan must, prior to undertaking mining activities, seek and receive a change of or variance from the Village's land use regulations, and it must obtain site plan and special use permit approvals from the Town. I strongly encourage the Village and Town to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Village and Town to support their decisions whether to issue or deny those approvals.

Dated: March 17, 2005
/s/
Albany, New York
Denise M. Sheehan, Acting Commissioner

Distribution of Copies:

Disputing Agencies/Applicant:

  • Joseph M. Catalano, Esq., Village of East Nassau
    Steven Schassler, Regional Director, DEC Region 4
    Blaise Constantakes, Esq., DEC Region 4
    William J. Clarke, Regional Permit Administrator, DEC Region 4
    Adam J. Schultz, Esq. for Callanan Industries, Inc.

New York State Department of Environmental Conservation, Albany:

  • Michael Naughton, Counsel, Division of Legal Affairs
    Betty Ann Hughes, Division of Environmental Permits

cc:
Village of East Nassau Clerk, attn: Board of Trustees
Carol Sanford, Supervisor, Town of Nassau

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