Town of Kinderhook v. DEC - 2 (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: Application by Donald G. Kraft to mine sand and gravel on 23.04 acres of a 58.39-acre site in the Town of Chatham in Columbia County
DISPUTING AGENCIES: Town of Chatham Zoning Board of Appeals and 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 (ECL) and 6 NYCRR Part 617. This decision is based on my findings that DEC has a broader jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation.
The proposed project is the application of Donald G. Kraft to mine sand and gravel on a 23.04-acre portion of a 58.39-acre parcel on Pond Hill Road in the Town of Chatham in Columbia County. The site is currently zoned RL-2 (Rural Lands Two Zoning District) which allows mining with the issuance of a special permit. Additionally, the Town zoning law prohibits the excavation of topsoil, rock or other earth material except by issuance of a permit by the Code Enforcement Officer based on another Zoning Board of Appeals approval after a public hearing.
The Region 4 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to 6 NYCRR Parts 420-425 and Article 23 of the ECL. The Town of Chatham Zoning Board of Appeals has the jurisdiction to issue or deny a special permit and the Code Enforcement Officer must issue an approval.
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. DEC and the Town of Chatham identified the following potential environmental concerns regarding the proposed mine:
- • potential archeological/cultural resources impacts;
• traffic and noise impacts;
• potential visual impacts; and
• impacts from fugitive dust.
The potential for impacts to archeological/cultural resources will require DEC to consult with the Office of Parks, Recreation and Historic Preservation (OPRHP) to determine whether the site is within an area of sensitivity as identified on their archeological inventory map. The State Historic Preservation Act recognizes archeological resources to be of statewide concern. The remainder of the impacts are local in nature. Because the potential environmental impacts of this project contain an impact of statewide interest and there is no primary focus to the location of impacts, I must consider criterion number 2 in depth.
The next criterion, the breadth of jurisdiction, substantially favors DEC as lead agency. The applicant must obtain a special permit from the Town of Chatham Zoning Board of Appeals, a permit from the Town Code Enforcement Officer and a Mind Land permit from DEC. The MLRL preempts local regulation of mining and 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 Chatham;
• routing of mineral transport vehicles on town roads;
• requirement and conditions as specified 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 has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of DEC's jurisdiction under MLRL is superior to the Town's special permit and the Town Code Enforcement Officer's permit. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL superseded all other state and local laws related to the regulation of mining. DEC must incorporate into its permit conditions those recommendations by the Town that are found to be reasonable, or DEC must provide a written explanation to the local government if any or part of the recommendations are not incorporated.
The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. Since the analysis of this project shows that the breadth of jurisdiction under MLRL is superior to the Town's special permit and the Code Enforcement Officer's permit, strongly favoring the DEC Region 4 Office, the third criterion need not be addressed.
I conclude, based on DEC's broader jurisdiction under MLRL, that the Region 4 Office of DEC should be lead agency for the SEQR review for the proposed Donald G. Kraft sand and gravel mine.
This decision in no way limits the jurisdiction or responsibility of the Town of Chatham. The applicant must apply for and obtain the necessary Town approvals prior to commencing the action. I encourage the Town of Chatham to continue to identify all of its environmental concerns so that the DEC Region 4 Office can consider them when it determines the significance of the proposed action.
John P. Cahill, Commissioner
Dated: July 9, 1998
Albany, New York
Distribution of Copies:
- Bill Clarke, DEC Region 4 Office
Michael Higgins, DEC Region 4 Office
Jesse DeGroodt, Town Supervisor
Paul Laudato, Esq., Town Attorney
Victor Gallo, Division of Legal Affairs
Jack Nasca, Division of Environmental Permits