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Town of Wheatland 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: Gonsenhauser Mine: Designation of lead agency for the review of a proposed sand and gravel mine in the Town of Wheatland in Monroe Countyy

DISPUTING AGENCIES: Town of Wheatland
Region 8 Office, New York State Department of Environmental Conservation

This decision to designate the Department of Environmental Conservation (DEC) Region 8 office as 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 Elam Sand and Gravel to mine sand and gravel from an approximately 45-acre parcel known as the Gonsenhauser Mine in the Town of Wheatland, Monroe County. The site has a long history of sand and gravel mining. Previous operations have been either under the DEC permit requirement thresholds or predated the permit regulations. Portions of the Gonsenhauser property have been mined under a permit issued to the Jack Miller Excavating Company (DEC Permit Number 8-2656-00006/00001-0). That operation has been voluntarily closed and properly restored in accordance with the permit conditions.

With the current application, the DEC has jurisdiction and authority to issue or deny a mining permit under the authority of the Mined Land Reclamation Law (MLRL) . The DEC Region 8 office is reviewing this application. The Town of Wheatland has a Zoning Law which, according to the Town Supervisor in a letter dated May 18, 1993, specifically prohibits mining on the requested site. The Town also states that the applicant must obtain a special use permit to allow mining in a Residential- Agricultural Zoning District. The Town of Wheatland also has an Excavation Law in effect which would require a permit to be issued by the Town of Wheatland Building Inspector for any project that would entail almost any kind of non-agricultural or residential excavation, soil removal or digging. The requirements for obtaining such a permit essentially duplicate the requirements set forth for obtaining a MLRL permit from the DEC..In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 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.

Examination of the first criterion shows that although the physical location of the impacts will be primarily local, some of the resources to be affected have regional importance. The mine site is within Monroe County Agricultural District #2, but the owner does not participate in the district program. The project site is within an area shown on the Statewide Archaeological Inventory Map as one which has the potential for yielding archaeological artifacts. The applicant has stated that a Stage 1A and 1B Cultural Resource Investigation has been completed. This document will be evaluated as required. Other anticipated effects such as traffic, visual and noise impacts to the Town of Wheatland are local in scope. The Town also raised concerns about groundwater. The applicant has proposed to operate the mine as a surface extraction of cobble loam soils, which are the predominate soil types on the property. Since the location of the impacts does not strongly favor either the local or state agency, I must examine the remaining two criteria.

The next criterion to consider in this dispute is the breadth of jurisdiction. In order for the project to be operated as proposed, the applicant must obtain a special use permit from the Town of Wheatland and a MLRL permit from DEC. Special use permits carry with them the presumption that the use is allowed in the applicable zone so long as established conditions and/or standards are met. The conditions of the Town of Wheatland's special use permit and the excavation permit, as identified by the Town, appear to be an attempt to provide for local regulation of the mining industry.

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 MLRL (ECL Section 23-2701 et seq.). 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; 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 to the local government if any or part of the determinations have not been incorporated. It is clear that the jurisdiction of the DEC under the MLRL is much broader than the jurisdiction of the Town of Wheatland, given the fact that conditions of the special use permit or excavation permit that would attempt to control the method of operation and the duration of the operation would likely be preempted by the MLRL.

The third criterion also favors DEC as lead agency. DEC staff have 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 Region 8 office of the Department of Environmental Conservation best serves the function of lead agency for conduct of the environmental review for the Elam Sand and Gravel mining application due to its broad jurisdiction under the MLRL and the expertise of staff in the review of mining and reclamation projects.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and to assist the DEC in completion of the environmental review process. The issues raised by the Town of Wheatland must be considered by the DEC in making its determination of significance.

/s/
Thomas C. Jorling, Commissioner
Dated: June 29, 1993
Albany, New York

Disputing Agencies:

New York State Department of Environmental Conservation:

Additional Copies - Involved/ Interested Agencies:

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