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DEC v. Town of Preble

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: Preble Aggregate Pit in Town of Preble, Cortland County, by Preble Aggregate, Inc.

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 6 NYCRR Part 617, the statewide regulations governing SEQR. My decision is based on the facts that potential regional and statewide impacts related to the development of this project outweigh those at local level and that DEC staff has the broadest governmental powers for investigation of the impact of the proposed action.

This lead agency dispute involves a proposal by Preble Aggregate, Incorporated of Nedrow, New York, to mine sand and gravel from an approximately 40-acre site to be known as the Preble Aggregate Pit, located on Marybelle Road between Interstate Route 81 and NY State Route 281 in the Town of Preble, Cortland County. About 25 acres of the site will be mined initially, with the remainder remaining in agricultural use until needed.

In his letter to me of September 15, 1988, Mr. A.A. Coburn, Regional Permit Administrator for DEC Region 7, asked that I designate DEC as lead agency for the review of the described action. Included with Mr. Coburn's request was a copy of a letter of August 24, 1988 by Edward Fintel, Esq., on behalf of the Town of Preble Zoning Board of Appeals, expressing the Board's objection to assumption of lead agency by DEC. Robert A. Small, Esq. on behalf of Preble Aggregate Incorporated, notes that in a decision entered on March 21, 1988, by the Hon. Albert E. Tait, Jr. of the Cortland County Supreme Court, Article X, Section 27, of the Town of Preble Zoning ordinance, prohibiting the extraction of natural products from below the watertable, was found to have no force and effect because Section 23-2703(2) of the Environmental Conservation Law preempts local regulation of extractive mining processes.

Mr. Small further contends that Article IV, Section 5 of the Town Zoning Ordinance which was not considered under this declaratory judgment, is also inapplicable to the Preble Aggregate Pit and, consequently, the Town has no direct jurisdiction under which it may be involved in the review of this proposed project. Article IV, Section 5 provides that all uses of land and structures or industrial processes that may be "...noxious or injurious by reason of the production or emission of dust, smoke, refuse matter, odor, gas, fumes, noise, vibration or similar substances or conditions..." will require a special use permit from the Town Zoning Board of Appeals "...subject to conditions, restrictions and safeguards as may be deemed necessary...for the purpose of protecting the health, safety, morals or general welfare of the community."

Under these circumstances, it is not within my authority to base my lead agency determination on the validity of Article IV, Section 5 of the Town of Preble Zoning Ordinance. Unless such section is found by the courts to have no applicability to the Preble Aggregate project, I must consider the Zoning Board of Appeals (ZBA) of the Town of Preble as an involved agency, and must weigh the merits of that agency along with those of this Department for conduct of the environmental review for this project under SEQR.

In resolving a dispute over lead agency, I am guided by the three criteria listed in order of importance in paragraph 617.6(e)(5) of 6 NYCRR Part 617. The first of these criteria is whether the anticipated impacts are primarily of local, regional or statewide significance. In this respect, the ZBA has indicated that factors to be considered, among others, are the effects on the Town's water supply, vibration, dust and noise pollution, air and water emissions and traffic generation. These primarily local impacts have also been acknowledged by DEC staff, but in Mr. Coburn's memorandum of October 11, 1988, he points out that there are considerations of regional and statewide interest, as well. These include loss of prime agricultural land in the Cortland-Tully Valley and the need to provide a high quality gravel resource for regional and even statewide use. Mr. Coburn suggests that in order to address the issue of utilizing one resource (sand and gravel) at the expense of another (agricultural land), an understanding of regional demands will be necessary. In addition, if the gravel resource is shown to be of high quality, it may be necessary to limit its consumption to highest and best uses; e.g., road surfaces.

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 Preble ZBA 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. Under Article 23, Title 27 of the Environmental Conservation Law and 6 NYCRR Part 420, DEC has exclusive authority to regulate all aspects of the operations of extractive industries, including sand and gravel operations, and to provide for subsequent reclamation of mined lands. In so doing, DEC has a responsibility to consider local impacts in addition to providing for utilization of the mineral resources at local and regional level and for ultimate site reclamation. DEC's jurisdiction over mining and its attendant environmental impacts is clearly broader than the limited local jurisdiction.

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. Both agencies have indicated the likelihood that review of this project will require preparation of an environmental impact statement (EIS). DEC staff has had considerable experience in the review of mined land proposals and site reclamation. The Town has indicated a willingness to employ consultants in order to undertake an adequate review. Both DEC and the Town would have access to other agencies with pertinent expertise such as the U.S. Soil Conservation Service, the New York State Department of Agriculture and Markets and the State College of Agriculture and Life Sciences at Cornell including their related Extension Service. Although the Town may be able to employ experts to conduct this specific review, the expertise is already available within DEC.

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 Preble Aggregate sand and gravel mining operation because, in addition to potential local impacts, there are potential environmental impacts of regional concern and because the DEC has broader authority to examine state and regional impacts as well as local.

In undertaking this environmental review, the DEC has an obligation to assure that all the significant environmental issues raised by the Town of Preble and its residents are examined. Among these is the issue of need for this particular material, the unique quality of which has been questioned because of its possible high limestone content. DEC and others have noted that a previously prepared draft generic EIS on sand and gravel mining in the Cortland-Tully Valley may be utilized in the review of this project. Preble Aggregate Inc. has appended this statement to their land use and reclamation plan for their proposed operation. Although this draft generic EIS may contain some pertinent general information, it was prepared seven years ago and was never approved in final form. It may not become a substitute for up-to-date, site-specific evaluation.

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: November 1, 1988
Albany, New York

Distribution of Copies:

  • Adelbert Knapp, Chairman, Preble ZBA
    Supervisor Thompson, Town of Preble
    John Ryan, Esq., Town Attorney
    Edward J. Fintel, Esq. (W.R. Bodow Offices)
    K.G. Hawkins, Preble Aggregate, Inc.
    Robert A. Small, Esq. (Hancock & Estabrook)
    A.A. Coburn (DEC-Region 7)

New York State Department of Environmental Conservation:

  • T. Jorling
    L. Marsh
    M. Gerstman (Legal Affairs)
    G. Bowers (Legal Affairs)
    G. Sovas (Mineral)
    J. Jensen/F. Howell (DRA)
    Wm. Krichbaum (Reg. 7-Syracuse)
    R. Nolan (Reg. 7-Cortland)
    J. Moskiewicz (Reg. 7-Syracuse)

FWH:jif

c:lead

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