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Town of Erwin 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 Glenn O. Hawbaker, Inc. to expand the existing Scudder - Indian Hills sand and gravel mine in the Town of Erwin, Steuben County.

DISPUTING AGENCIES: Town of Erwin Planning Board and Region 8 Office, New York State Department of Environmental Conservation (DEC).

This decision to designate the Region 8 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 primarily on my findings that potential impacts of this project will be of wider than local significance, and furthermore, that DEC has broader authority under the Mined Land Reclamation Law (MLRL) for investigation of all aspects of mining and reclamation.

The proposed project is the application by Glenn O. Hawbaker, Inc. to expand its existing 25 acre sand and gravel mine by an additional 53 acres, within the Town of Erwin, Steuben County. The site is located over a sole source aquifer of high permeability, is within a flood hazard area, and is upstream of DEC flood controls structures. Under the design as now proposed, the mined area would intercept a Class "C" tributary of the Tioga River.

The Region 8 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to Article 23 of the ECL, 6 NYCRR Parts 420-425. The Town of Erwin Planning Board's specific jurisdictions are Site Plan Approval and a Special Use Permit. The Town of Erwin also stated that it has adopted a Flood Damage Prevention ordinance but did not claim that the Planning Board administers or enforces it.

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. Both DEC and the Town of Erwin identified a range of potential impacts related to the proposed expansion of the Scudder-Indian Hills mine, including effects on the sole source aquifer; flooding and flash flooding, including possible effects on the DEC flood control structure downstream of the site; and intercepting a tributary of the Tioga River; plus an array of typical local concerns including noise, dust, visual effects, drainage, and community character. Of this range of possible impacts, I find that the potential impacts on a sole source aquifer and on flooding are clearly of regional significance and, therefore, that the Region 8 office of DEC is the more appropriate lead agency.

Additionally, the second criterion, breadth of authority, also favors the DEC. The MLRL preempts all other state and local laws related to the regulation of mining, so 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 Erwin;
    • routing of mineral transport vehicles on 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, in contrast, has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of DEC's powers for investigation 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 supercedes 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 Erwin 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 8 DEC office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Town of Erwin Planning Board .

The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. Considering the range of projects with which the Town of Erwin noted its involvement in recent years, 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 of this project.

I therefore conclude that the Region 8 office of DEC should be lead agency for the SEQR review of the proposal by Glenn O. Hawbaker, Inc. to expand its existing 25 acre sand and gravel mine by an additional 53 acres, based primarily on the regional nature of the potential impacts of the action, but also 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 jurisdiction or responsibility of the Town of Erwin. The applicant must, prior to undertaking mining activities, obtain site plan and special use permit approvals from the Town. I strongly encourage the Town of Erwin to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Town of Erwin to support its decision to issue or deny those approvals.

/s/
Erin M. Crotty, Commissioner
Dated: June 6, 2003
Albany, New York

Disputing Agencies/Applicant:

  • Thomas M. Tammaro., Supervisor, Town of Erwin
    David Blackstone, Chair, Town of Erwin Planning Board
    David F. English, Esq., Town Attorney, Town of Erwin
    John Hicks, Regional Director, DEC Region 8
    L. Bracci, Esq., DEC Region 8
    Peter Lent, Regional Permit Administrator, DEC Region 8
    D. Hawbaker, Glenn O. Hawbaker, Inc.

New York State Department of Environmental Conservation:

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