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Town of Kinderhook v. DEC (4.9-acre sand and gravel 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: Designation of lead agency for the review of a proposed 4.9 acre sand and gravel mine on a 30 acre parcel in the Town of Kinderhook in Columbia County.

DISPUTING AGENCIES: Town of Kinderhook, Planning Board
Region 4 Office, New York State Department of Environmental Conservation

This decision to designate the Planning Board of the Town Kinderhook 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 potential impacts of the proposed action are local in nature and will be confined to the Town of Kinderhook.

The proposed project is the application of the Mangiardi Brothers Trucking Company to mine sand and gravel from 4.9 acres of a 30 acre parcel owned by Marcel Saint-Onge in the Town of Kinderhook, Columbia County. The Region 4 office of the DEC has jurisdiction to consider a mining permit under the authority of the Mined Land Reclamation Law (MLRL) and the Town of Kinderhook Planning Board has jurisdiction to consider a special use permit.

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.

Review of the first criterion shows that the physical location of the impacts will be primarily local in nature. All of the anticipated effects identified by both the Town and DEC Region 4 such as traffic from the hauling of material, noise from hauling and the extraction of materials and visual impacts from the operation of the mine will be experienced in the Town of Kinderhook. It is important to note the small size of the mine and the fact that the mining activities will end after three years. There are no regional or statewide impacts from the proposed action.

The second criterion for consideration is which agency has the broadest powers for investigation of the potential impacts. Both agencies possess the necessary jurisdiction to act as lead agency for the review. The Town of Kinderhook has the responsibility to review the action and issue a special use permit under the Town's zoning ordinance. The DEC has the exclusive authority under the MIRL to regulate all aspects of the conduct of mining and reclamation. The breadth of the Department's jurisdiction under the MIRL when combined with regional/statewide impacts has been an important consideration in resolving other lead agency disputes for mining projects. In this case, the limited scope of the proposed action and the fact that the potential impacts are exclusively local in nature override the broader jurisdiction of the DEC.

The third criterion is which agency has the capability to complete the environmental review. Both agencies possess the staff and expertise necessary for a thorough environmental assessment. DEC staff has considerable experience in the review of mined land proposals. The Town has demonstrated its ability in this area by the successful completion of the environmental review for the adjacent Den Besten mine.

I conclude based on the facts presented, that the Town of Kinderhook Planning Board best serves the function of lead agency for conduct of the environmental review for the Mangiardi Brothers Trucking Company Mining application due to the local nature of the potential impacts of mining at this site.

This decision does not give to the Town of Kinderhook additional jurisdiction over the proposed action with regard to mining. The Town's authority to regulate mining at the site is still limited by the provisions of the MLRL which gives to DEC the exclusive authority to regulate the extraction of minerals from the site and subsequent reclamation. The DEC, due to the exclusive nature of its jurisdiction, should work closely with the Town of Kinderhook in the conduct of the environmental review process.

/s/
Thomas C. Jorling, Commissioner
Dated: March 10, 1993
Albany, New York

Disputing Agencies:

New York State Department of Environmental Conservation:

Additional Copies - Involved/ Interested Agencies:

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