Town of Malta 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 The Malta Company to mine sand on a 4.38 acre site owned by The Malta Company in the Town of Malta, Saratoga County.
DISPUTING AGENCIES: Town of Malta Zoning Board of Appeals, and Region 5 Office, New York State Department of Environmental Conservation (DEC)
This decision to designate the Region 5 office of DEC as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) Act process is made Pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR 617.. This decision is based on my findings, as discussed below, that: the impacts are primarily regional in nature and that DEC has the broadest jurisdiction to review this application.
The Malta Company has applied to DEC for a mining permit to operate a sand mine on a 4.38 acre parcel on Route 9 in the Town of Malta in Saratoga County.
The Region 5 office of DEC has jurisdiction to consider a Mined Land Reclamation Law (MLRL) permit application pursuant to 6 NYCRR Parts 420-425 and Article 23 of the ECL. The Town of Malta Zoning Board of Appeals has asserted jurisdiction to consider an application for a use variance since the site is located in a R-1 zoning district in which mining is not a permitted use.
The Region 5 office of DEC identified a list of potential environmental concerns f6r the proposed mine, including:
- • surface and/or groundwater contamination;
- • traffic related impacts;
- • dust impacts;
- • noise impacts.
The Town's consultant did not list any specific potential environmental concerns for consideration in resolving this dispute, but did indicate generally that potential adverse environmental impacts of this project are of local significance.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 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 primarily of 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 potential impact(s) of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
In consideration of the first criterion, the potential environmental impacts identified in relation to this proposed mining operation involve surface and/or groundwater contamination, traffic, dust and noise. I find that the potential impacts are primarily regional in nature for the reasons discussed below. Therefore, DEC is favored for lead agency under this criterion.
Ground and/or surface water contamination is raised as an issue by DEC because the soils on the site are extremely permeable and contamination of waters, therefore, would be difficult to remediate in the case of spills from either equipment or fuel storage facilities. Furthermore, a regulated, Class I freshwater wetland (G-11) is located to the north of the mine, and the mine site overlies a mapped principal aquifer. The proposed mine has the potential to impact these surface and groundwater resources. Given its extensiveness, any potential contamination of the aquifer would potentially be of regional concern. The state-regulated freshwater wetland is the largest freshwater wetland in Saratoga County, major portions of which are located in two separate municipalities (the Town of Malta and the City of Saratoga Springs). Therefore, potential adverse environmental impacts from the proposed mine are both local and regional in location but regional in scope. Finally, ongoing enforcement proceedings by DEC against The Malta Company involve this freshwater wetland.
The Region 5 office of DEC indicated that the trucks entering and leaving the site must use New York State Route 9, and much of the truck traffic will subsequently utilize State Route 9P. Region 5 further adds that the line of sight distance is not optimal for safe ingress to or egress from the site and therefore, there are potential traffic impacts. Given that traffic related impacts may occur on State highways such impacts would be of regional/statewide significance. A local agency's jurisdiction is limited to local roads.
Dust is a potential environmental impact associated with mining operations and is generally of local concern. However, for this proposed mining project Region 5 indicated that the resource to be mined is fine sands that have the capability to create large clouds of dust that could create a visibility problem on Route 9 as well as nearby Route 9P. The potential effect to the statewide highway system as well as adjoining municipalities favors the DEC to serve as lead agency.
Noise generated at the site of the potential mine is identified and acknowledged by DEC to be of local concern. Four or five nearby residences will potentially be impacted.
Under the next criterion, the breadth of jurisdiction, DEC is favored as lead agency, because the MLRL supersedes local regulation of mining.
DEC has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of the DEC's jurisdiction under the MLRL is superior to the Town's use variance. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL supersedes local laws related to the regulation of mining.
The MLRL provides specific guidance regarding local government involvement in DEC's review of mining applications. Local governments may advise DEC in regard to setbacks, barriers, dust, hours of operation, and zoning prohibitions. DEC must incorporate into its permit conditions those local recommendations that are found to be reasonable or must provide a written explanation to the local government if any or part of the recommendations are not incorporated.
The third criterion focuses on which agency has the greatest capability for providing the most thorough environmental assessment. Both agencies either possess the ability to conduct a thorough environmental assessment or could obtain such ability through consultants.
I conclude, based on the predominance of regional impacts, and DEC's broader jurisdiction under MLRL, that the Region 5 office should be lead agency for the SEQR review of The Malta Company's proposed mine.
This decision in no way limits the jurisdiction of the Town of Malta. The applicant must apply for and obtain all of the necessary Town approvals prior to commencing the action. I encourage the Town of Malta to identify all of its environmental concerns so that the Region 5 office can consider them in its determination of significance. The Region 5 office should work closely with the Town of Malta in the conduct of the environmental review process.
John P. Cahill, Commissioner
Dated: July 15, 1997
Albany, New York
Distribution of Copies:
- Town of Malta Zoning Board of Appeals
The Malta Company
Terresa M. Bakner, Esq.
New York State Department of Environmental Conservation:
- John P. Cahill, Commissioner
Additional Copies - Involved/ Interested Agencies: