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Town of Nassau Town Board 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: Application by Hard Rock Industries Quarry to mine graywacke sandstone on 51 acres of a 71.4 acre site in the Town of Nassau, Rensselaer County

DISPUTING AGENCIES: Town of Nassau Town Board, Region 4 Office, New York State Department of Environmental Conservation (DEC)

This decision to designate the Region 4 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 and 6 NYCRR 617. The Town Board of the Town of Nassau and DEC Region 4 have both asserted their intention to act as lead agency for this proposed mining project.

I find that the anticipated impacts of the proposed mining project are of both regional and local significance. I further find that DEC's jurisdiction under: (A) Mined Land Reclamation Law (MLRL); (B) State Pollution Elimination Discharge System (SPDES); (C) and possibly an Air Pollution Control permit is broader than that of the Town Board of the Town of Nassau under its Special Use Permit process. Finally, both agencies have the capability and expertise to conduct the environmental review for this project.

The proposed project is the application of Hard Rock Industries to mine graywacke sandstone from 51 acres of a 71.4 acre parcel on Route 66 in the Town of Nassau, between the Hamlets of Brainard and East Nassau in Rensselaer County.

The Region 4 office of DEC has jurisdiction to consider the following:

  • • Mined Land Reclamation permit pursuant to 6 NYCRR Parts 420-425.
    • State Pollution Discharge Elimination System (SPDES) permit pursuant to 6 NYCRR Parts 750-757.
    • Possibly an Air Pollution Control permit pursuant to 6 NYCRR Parts 200, 201, 212, and 227.

The Town of Nassau Town Board asserts jurisdiction to consider a Special Use Permit.

Both DEC and the Town of Nassau have identified a list of environmental concerns for the proposed mine including:

  • • air quality issues;
  • • water quality issues;
  • • noise considerations;
  • • traffic concerns;
  • • blasting and coincident vibration concerns; and
  • • visual resources.

In addition, DEC indicated that compatibility with land use plans is an issue for consideration.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 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; (2) which agency has the broadest governmental powers for investigation of potential impact(s) of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

In consideration of the first criterion, some of the typical local impacts associated with a mining operation are traffic, visual, fugitive dust and land use. Both the Town of Nassau and DEC have identified these issues as being local in nature. The Town of Nassau raised vibration and noise on adjoining properties and historic structures as concerns in relation to the blasting at the proposed mine which are also local concerns.

With respect to regional issues, the Town of Nassau points out the close proximity of the proposed mine site to the adjoining Town (Stephentown) and County (Columbia) and indicates that the proposed impacts of the proposed mine may also affect them. The effects on the neighboring communities could include increased traffic, noise and dust. In addition, the DEC Region 4 office describes this proposed site as being contiguous with another mine site currently under review by their office. This indicates that there is a need to assess cumulative impacts from the two proposed mines. These potential regional concerns would favor DEC as the lead agency because a state agency's authority is not constrained by municipal boundaries. A town's jurisdiction is limited to its boundaries. Furthermore, DEC identified potential impacts to the Kinderhook Creek. The proposed project plans to mine within 50 feet of the bed and banks of the stream. The Kinderhook Creek is a Class C(T) trout stream that flows through several municipalities on its way to the Claverack and ultimately to the Hudson River. The Kinderhook Creek constitutes a major trout fishery of regional significance. Thus, water quality and quantity concerns for this high quality trout stream are regional in nature. Both the Town of Nassau and DEC raised air quality concerns; i.e., fugitive dust, which may also cross municipal boundaries, potentially affecting the residents of the Town of Stephentown as well as anyone traveling on NYS Route 66..In consideration of the above, I find that the anticipated impacts for this project are of both regional and local significance, but are not primarily either regional or local in nature. Therefore, neither the Town nor Region 4 Office of DEC is favored as lead agency pursuant to the first criterion contained in 6 NYCRR Part 617.6 (b)(5)(v), and I must examine the remaining two criteria.

The next criterion, the breadth of jurisdiction, clearly favors the Region 4 Office of DEC as lead agency. The Town Board of the Town of Nassau asserts jurisdiction over the mining proposal pursuant to a special use permit. However, DEC has exclusive authority under the MLRL to regulate all aspects related to mining and reclamation.

The breadth of the DEC's jurisdiction under the MLRL, when combined with potential regional/statewide impacts, has been important considerations in resolving other lead agency disputes for mining projects. The MLRL supersedes all other state and local laws related to the regulation of mining, except local land use or zoning ordinances. The Town of Nassau's Local Law #2 of 1986 does not prohibit mining in the Rural Residential zone, but requires a Special Use Permit and the Site Plan/Compliance, Occupation or Use Certificate. The MLRL provides specific guidance regarding local government involvement in the review of mining applications. Local governments can advise DEC 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 their type, length, height and location; 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 its determinations are not incorporated. It is clear that the jurisdiction of DEC under the MLRL regarding mining, as well as the SPDES permit and the possible Air Pollution Control permit, is much broader than the limited authority of the Town.

The third criterion asks which agency has the greatest capability for providing the most thorough environmental assessment. Both agencies either possess the ability to conduct a thorough environmental assessment or could obtain such ability through consultants.

I conclude, based on the facts presented and the criteria contained in 6 NYCRR Part 617.6(b)(5)(v) as discussed above, that the Region 4 office of DEC should be lead agency for the SEQR review of the proposed Hard Rock Industries mine.

This decision in no way alters the jurisdiction of the Town of Nassau's potentially involved agencies. The applicant must apply for and obtain all of the necessary Town approvals prior to commencing the action. I encourage the Town of Nassau to identify its environmental concerns so that the Region 4 Office can consider such concerns in DEC's determination of significance.

Michael Zagata, Commissioner
Dated: 9/18/96
Albany, New York

Distribution of Copies:

  • William Knight, Town Supervisor
    NYSDOT Region 1
    Hard Rock Industries

New York State Department of Environmental Conservation:

  • Michael Zagata, Commissioner
    Sandra Ansley
    Arlene Lotters
    William Clarke
    Arthur Henningson

Additional Copies - Involved/ Interested Agencies:

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