Town of Kinderhook v. DEC - 1 (23-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 23-acre sand and gravel mine on a 30.45-acre parcel in the Town of Kinderhook, Columbia County
DISPUTING AGENCIES: Town of Kinderhook Planning Board
Region 4 Office, New York State Department of Environmental Conservation
This decision to designate the Town of Kinderhook Planning Board 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, that the Town was lead agency for the original project and that the Town is lead agency for nearby related projects.
The proposed project is the application of Romona L. Den Besten to expand an existing sand and gravel mine from the currently permitted 7 acres up to 23 acres on a 30.45-acre parcel in the Town of Kinderhook, Columbia County. The Region 4 office of the DEC has jurisdiction to consider modification of 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.
Examination of the first criterion shows that the physical location of the impacts will be 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 the mining operations, visual impacts from the operation of the mine, groundwater impacts from operation of the mine and cumulative effects in relation to noise and traffic from the operation of this and an adjacent mine currently under review, will be experienced by the Town of Kinderhook. 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 MLRL to regulate all aspects of the conduct of mining and reclamation. The breadth of the Department's jurisdiction under the MLRL, when combined with regional/statewide impact, has been an important consideration in resolving other lead agency disputes for mining projects. In this case, the scope of the proposed action, the lack of regional or statewide concerns and the exclusively local nature of the impacts all work together to override the broader jurisdiction of the DEC. In addition, in 1990 the Town was the lead agency for the original mine for which this modification is being sought, and it is the lead agency for the Mangiardi Brothers mine and the St. Onge mine, both adjacent to this property, and thus can review and address any cumulative impacts relating to noise and traffic.
The third criterion is which agency has the capability to provide a thorough 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 completion of the environmental review for the original mining proposal and its current review for the proposed Mangiardi Brothers Trucking Company 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 Den Besten mining application due to the local nature of the potential impacts of mining at this site.
This decision does not give 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.
Thomas C. Jorling, Commissioner
Dated: June 30, 1993
Albany, New York
Distribution of Copies:
- Anthony Adamczyk, Director, Region 4 Office, NYSDEC
Keith Stack, Supervisor, Town of Kinderhook
William Better, Esq., Attorney, Town of Kinderhook
Romona Den Besten, Applicant
New York State Department of Environmental Conservation:
- Commissioner Jorling
Additional Copies - Involved/ Interested Agencies: