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Town of Kinderhook v. DEC (Hewig Mine)

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: Hewig Mine, Round Top Road, Town of Kinderhook

This decision to designate the Department of Environmental Conservation (DEC) Region 4 as the 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 6NYCRR Part 617, the statewide regulations governing SEQR. My decision is based on the fact that DEC 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 lead agency dispute involves a proposal by the Hewig Mine to mine a total of five acres within a 76-acre parcel in two phases with concurrent reclamation to an agricultural use. Also, a small, previously mined area would be reclaimed. No more than 2.5 acres would be disturbed at any one time during the projected 20-year life of mining operations. About 100,000 cubic yards of sand and gravel would be removed over a 20-year period of time, with estimated annual production of 5,000 cubic yards/year.

In a letter of May 14, 1992 to Ms. Louise Ingles-King of Region 4, Mr. William Better, Esq., attorney for the Town of Kinderhook, requested that the Town of Kinderhook be designated as lead agency for this proposal. This lead agency resolution is not dissimilar to several others I have been called on 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 the mining industry operations, except general local zoning ordinances or local laws which impose stricter mined land reclamation requirements than the MLRL. Court interpretations of the MIRL have made it clear that local jurisdiction is limited to general local land use controls not specific to mining. 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 circumstances dictate that the scope of jurisdiction and responsibility be given greater weight in resolving this dispute.

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 Planning Board of Kinderhook has indicated that factors to be considered, among others, are screening, dust and noise pollution, and the capability of Round Top Road to safely handle traffic. These primarily local impacts have been acknowledged by DEC staff. Nonetheless, since the Department is the lead agency for a similar action (Meyer Mine) across Round Lake Road from the proposed Hewig site in the Town of Kinderhook, it is appropriate that the Department act as lead agency and review both actions concurrently to address the cumulative effects.

The second criterion for consideration in resolving a lead agency dispute is which agency has the broadest powers for investigation of the potential impacts. Although the Town Planning Board must consider appropriate conditions which should be applied to the granting of a special use permit, considerations of dust, fumes, noise and traffic are incidental to the activity of mining. I have already noted above that 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 in 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 had considerable experience in the review of mined land proposals and site reclamation. Thus, the expertise to conduct this assessment is within the Department.

I, therefore, conclude, based on 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 Hewig sand and gravel mine because DEC has far broader authority to examine state, regional and local impacts and has the expertise to do so.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review this entire proposed action and to assist the DEC staff in completion of the environmental review process.

Thomas C. Jorling
Dated: July 9, 1992
Albany, New York

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