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Town of Sardinia 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: SEQR Lead Agency Dispute
Gernatt Asphalt Products, Inc.
Proposed Gabel/Thomas Mine
DEC Application No. 9-1462-00019/00001-1

This decision to designate the New York State Department of Environmental Conservation Region 9 office as lead agency is made pursuant to Article 8 of the Environmental Conservation Law and 6NYCRR Part 617, the statewide regulations governing the conduct of an environmental review under the State Environmental Quality Review (SEQR) process. My decision is based upon the fact that the potential impacts of the proposed action are regional in scope and that DEC has the broadest governmental powers for the investigation and to mitigate those impacts, as well as the greater expertise required for a thorough environmental review.

The lead agency dispute involves a proposal by Gernatt Asphalt Products, Inc. to operate a surface unconsolidated sand and gravel mine at a site located 200 feet west of NYS Route 16, north of Genesee Road and south of Allen Road in the Town of Sardinia, County of Erie. The proposal would ultimately affect approximately 400 acres of land. Mining below the groundwater table would ultimately create a lake of about 286 acres. The estimated life of the mine is 100 years.

In a letter of July 29, 1992 to Mr. Kenneth C. Taft of Region 9, Mr. Anthony DiFilippo III, the attorney for the Town of Sardinia, requested that the Town be designated as lead agency for the proposal since they consider that the anticipated impact of the action being considered is primarily of local impact and is primarily a zoning decision to be made by the Town of Sardinia pertaining to land use. This lead agency resolution is similar to several others I have been called upon to make relating to the Mined Land Reclamation Law (ECL Section 23-2701 et seq., MLRL)

The MLRL supersedes all other state and local laws related to mining industry operations, except general local zoning ordinances or local special use permit laws which may restrict limited aspects of mining. Court interpretations of the MLRL , have made it clear that local jurisdiction is limited to general local land use controls not specific to mining. Legislation passed in 1991 also limits local government control of mining and provides for local review through the Department's permit process. 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 the scope of jurisdiction and responsibility be given greater weight in resolving this dispute.

Recent MLRL legislation has provided specific guidance regarding local government involvement in the review of mining applications. Local governments can advise the DEC of their determinations in regard to: setbacks from property boundaries and public thoroughfares and rights-of-way; man-made 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 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 Section 617.6(e) (5) of 6NYCRR. The first of these criteria is whether the anticipated impacts are primarily of local, regional or statewide significance. In this respect, the Town has indicated that factors to be considered are effects on land use in the area and the impacts on the sole source aquifer located at the site.

The DEC Region 9 office contends that any impacts on the aquifer could potentially affect the hamlet of Chaffee's potable water supply. Region 9 has further stated that the impacts are of a regional nature due to: the effects of the proposal upon the water regime of adjacent wetlands and Hosmer Brook which is a high quality DEC regulated trout stream; the loss of 400 acres of prime farm soils in a NYS Agricultural District; the change to 286 acres of terrestrial ecosystem to an aquatic ecosystem; and the loss of documented and possibly undocumented archeologic and historic cultural resources. I support the DEC Region 9 office determination that the anticipated impacts are primarily regional.

The second criterion for consideration in resolving a lead agency dispute is which agency has the broadest powers for investigation of' the potential impacts. As I have already noted above, 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 for 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 considerable experience and expertise in the review of mined land proposals and site reclamation. Thus, the capability to conduct this assessment is within the Department.

I therefore conclude, based upon 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 Gabel/Thomas Mine because DEC has far broader authority to examine regional impacts and has the expertise to do so. In accordance with the State Environmental Quality Review process, the 1991 mining law amendments and DEC Department policy, the Town has a significant opportunity participate in the review process.

/s/
Thomas C. Jorling, Commissioner
Dated: October 15, 1992
Albany, New York

Distribution of Copies:

  • Devorsetz, Stinziano, Gilberti & Smith, P.C., Attn: Laurel J. Eveleigh
    Philip Feraldi, Supervisor, Town of Sardinia
    DiFilippo, Bennett, Daumen, Attn: A. DiFilippo
    Kenneth Taft, NYSDEC, Region 9
    Betty Wiedemann, Council Member, Town of Sardinia

New York State Department of Environmental Conservation:

  • Commissioner Jorling
    L Marsh
    R Cross
    M. Gerstman
    G. Kainaras
    L. Concra
    J. Sarna.
    J. Stallmer
    J. Spagnoli
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