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Town of Barker by Fahs-Rolston Paving

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: Proposed Sand and Gravel Mine, Parsons Road Town of Barker, Broome County, by Fahs-Rolston Paving

This decision to designate the Department of Environmental Conservation (DEC) Region 7 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 investigation of the impacts of the proposed action, as well as the greater expertise required for a thorough environmental review.

This lead agency dispute involves a proposal by the Fahs-Rolston Paving Corporation of Binghamton, New York, to undertake sand and gravel mining operations on 14 acres of a 22-acre site in the Town of Barker, Broome County.

The project would be located on a hillside along Parsons Road, west of the Tioughnioga River about a half mile above its confluence with the Chenango River. Sand and gravel would be processed on the site. Twelve (12) of the 14 acres proposed for excavation would be utilized initially. Approximately 90% of the site lies on a slope of 15% or greater.

In a letter to me of January 31, 1990, Mr. Michael J. Danaher, Jr., Esq., attorney for the Town of Barker, asked that I designate the Town of Barker Planning Board as lead agency to coordinate the required review under SEQR. On February 21, 1990, Mr. Danaher responded to my staff with further arguments favoring the assumption of the lead role by the Barker Town Planning Board. A copy of that portion of the Town's Zoning Ordinance related to Special Permits for Extraction of Natural Resources was also submitted.

It should be noted that in his lead agency solicitation to the Town on January 8, 1990, Region 7 Permit Administrator A. A. Coburn expressed his belief that DEC has principal environmental review responsibility for this action, based on recent court decisions related to town ordinances elsewhere. These decisions affirm that only the state can regulate mining under the Mined-Land Reclamation Law (ECL Section 23-2701 et seq., MLRL)..This lead agency resolution is not dissimilar to several others I have been called on to make recently related to the MLRL. The Legislature in Section 23-2703 has provided that the fostering and development of a mining industry shall be a policy of the state. It also has provided that the development and management of the state's mineral resources and the reclamation of mined lands will be carried out in a manner which will protect the health, safety and general welfare of the people, as well as natural beauty and aesthetic values. 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 MLRL have made it clear that local jurisdiction is limited to general local land use controls not specific to mining. DEC's regulations of the manner in which mining activities will occur are paramount.

It is not within my authority solely to base my lead agency determination on the validity of MLRL supersession of local jurisdiction. Such issues must ultimately be resolved in another forum, as appropriate. The status of either the Barker Town Board or Town Planning Board as involved agencies is accepted for the purposes of this determination, and I must weigh the qualifications of those agencies along with those of DEC Region 7 for conduct of the environmental review for this project under SEQR.

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 that scope of jurisdiction and responsibility be given great 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 of Barker has indicated that factors to be considered, among others, are the effects on the local water supply, dust and noise pollution, air and water emissions and traffic generation. These primarily local impacts have been acknowledged by DEC staff, who also have pointed out considerations of regional and statewide interest which, in accord with ECL 23-2703, include the need to provide sand and gravel resources for regional and statewide use.

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 of Barker must consider appropriate conditions which should be applied to the granting of a special use permit, those considerations of dust, fumes, noise, water supply 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 Fahs-Rolston sand and gravel mine because DEC has far broader authority to examine state, regional and local impacts and has the expertise to do so.

During the course of the resolution of this lead agency dispute, the Department has received correspondence from citizens residing in the vicinity of this proposed mine. These letters, for the most part, expressed concerns about appropriateness of a quarry on this undisturbed hillside which is located near the community of Chenango Forks in the adjacent Town of Chenango. This issue is not one which can be settled through the resolution of a SEQR lead agency dispute. The ultimate state and local jurisdictions remain, no matter which agency conducts the process. Acceptance or rejection of quarrying as a land use activity is a local function. DEC has no such zoning authority. DEC's authority under the Mined Land Reclamation Law is to control the manner in which mining operations are conducted and reclaimed to minimize or avoid significant environmental effects. Concerns about the operation may be expressed during the public comment period allowed during permit application and SEQR review processes.

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.

/s/
Thomas C. Jorling Commissioner
Dated: March 22, 1990
Albany, New York

Distribution of Copies:

  • J. Czebiniak, Supervisor, Town of Barker
    M. Danaher, Jr., Esq., Barker Town Attorney
    R. Schwartz, Esq., Chairman, Barker Town Planning Board
    A. Coburn, DEC Region 7, Cortland
    Fahs-Rolston Paving Corp.

New York State Department of Environmental Conservation:

  • L. Marsh
    M. Gerstman
    G. Bowers
    J. Jensen
    F. Howell
    G. Sovas
    W. Krichbaum (Region 7)
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