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Town of Poestenkill 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 Callanan Industries, Inc. to increase the approved depth of its existing Valente Gravel - Wynantskill Mine, a sand and gravel mine in the Towns of Poestenkill and North Greenbush, Rennselaer County.

DISPUTING AGENCIES: Town of Poestenkill Planning Board 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 primarily on my findings that potential impacts of this project will be of wider than local significance, and furthermore, that DEC has broader authority under the Mined Land Reclamation Law (MLRL) for investigation of all aspects of mining and reclamation.

The proposed project is the application by Callanan Industries, Inc. to mine 35 to 70 feet deeper than currently approved, up to final depths of 45 to 50 feet below the water table, in several parts of its existing 538 acre sand and gravel mine in the Towns of Poestenkill and North Greenbush, Rennselaer County. The site is located over a shallow aquifer which is now the source for individual private wells and is also named as one of the sources being evaluated as a potential public water system source in studies being undertaken by both Towns. The mine site has residences on all sides, including some newer developments recently approved by North Greenbush.

The Region 4 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to Article 23 of the ECL, 6 NYCRR Parts 420-425. Poestenkill's Planning Board would need to amend its recently-renewed Special Use Permit. Parts of the mine are also within North Greenbush, but it has not joined in the dispute nor asserted any jurisdiction over the proposed modification.

I note that the Supervisor of the Town of Poestenkill (Supervisor) advised the DEC in a letter dated May 15, 2003, that the Town was withdrawing its dispute, in response to which the DEC advised all parties that the dispute was over and that DEC should proceed as lead agency. Then, in a second letter dated May 23, 2003, the Supervisor further advised DEC that the Poestenkill Town Board had voted to override his earlier action and wished to reinstate the lead agency dispute. With the goal of ensuring a clear record on the question of lead agency, and without addressing the propriety or standing of either letter, I have elected to issue this determination of lead agency.

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 both Towns identified potential negative impacts on the shallow aquifer of the proposed increased total depth of mine, sub-water table mining, and final reclamation to open water ponds. The Towns also identified heightened site security and public safety concerns due to the proposed change in operations, and North Greenbush noted that the change to sub-water table mining may include changes in equipment and operations which could increase visual and noise impacts of the mining operation, and that the operational and reclamation plan changes could also impact drainage and stormwater management. In addition, North Greenbush noted local concerns with the ongoing operation, including noise, dust, road mud, visual effects, and community character. Of this range of concerns, I find that the potential impacts on the aquifer are clearly of regional significance and, therefore, that the Region 4 office of DEC is the more appropriate lead agency.

Additionally, the second criterion, breadth of authority, also favors the DEC. The MLRL preempts all other state and local laws related to the regulation of mining, so 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 Towns of Poestenkill and North Greenbush;
  • • routing of mineral transport vehicles on town roads;
  • • developing requirements and conditions for inclusion in the mined land permit concerning setback from property boundaries ;
  • • 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, in contrast, has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of DEC's powers for investigation under MLRL is superior to the Towns' authority. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL supercedes all other state and local laws related to the regulation of mining. DEC must incorporate into its permit conditions those recommendations by both Towns which it finds to be reasonable, or provide a written explanation why any or part of the recommendations are not incorporated. It is clear that the jurisdiction of the Region 4 DEC office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Poestenkill Planning Board .

The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. Both disputing agencies possess, or could obtain through consultants, the staff to conduct a thorough environmental review. DEC staff, however, has considerable experience in the review of mined land reclamation proposals throughout the region. This extensive experience reviewing mining applications affords DEC a greater capability to undertake the environmental review of this project.

I therefore conclude that the Region 4 office of DEC should be lead agency for the SEQR review of the proposal by Callanan Industries, Inc. to mine 35 to 70 feet deeper than currently approved, up to final depths of 45 to 50 feet below the water table, in several parts of its existing 538 acre Valente Gravel - Wynantskill sand and gravel mine, based primarily on the regional nature of key potential impacts of the action, but also on the DEC's broader authority under the MLRL, and its greater experience in the review of mining applications.

This decision in no way limits the jurisdiction or responsibility of the Towns of Poestenkill or North Greenbush. The applicant must, prior to undertaking mining activities, obtain an amendment of its special use permit from Poestenkill. I strongly encourage both Towns to actively participate in the environmental review so that the record developed is accurate and contains the information needed by Poestenkill to support its decision to issue or deny the amendment, and to support any related decisions which may be made by North Greenbush.

/s/
Erin M. Crotty, Commissioner
Dated: June 9, 2003
Albany, New York

Disputing Agencies/Applicant:

  • Thomas F. Slavin, Supervisor, Town of Poestenkill
    Steve Schlassler, Regional Director, DEC Region 4
    Robert Leslie, Esq., DEC Region 8
    William Clarke, Regional Permit Administrator, DEC Region 4
    Charles A. Stokes, Callanan Industries, Inc.
    Paul Tazbir, Supervisor, Town of North Greenbush

New York State Department of Environmental Conservation:

  • Michael Naughton, Esq., Division of Legal Affairs, Albany
    Michael Higgins, Division of Environmental Permits, DEC Region 4
    Betty Ann Hughes, Division of Environmental Permits, Albany
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