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Town of Smithtown 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 Santilli Commercial Developers, LLC (previously Napoho Associates) to mine 25 feet deeper than currently authorized at its sand mine on Northport-Kings Park Road in the Town of Smithtown, Suffolk County

DISPUTING AGENCIES:
Town Board, Town of Smithtown, and Region 1 Office, New York State Department of Environmental Conservation.

This decision to designate the Region 1 Office of the New York State Department of Environmental Conservation (DEC Region 1) 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 finding that the proposed project has potential impacts of regional significance, and that the Mined Land Reclamation Law (MLRL) gives DEC Region 1 substantially broader governmental powers concerning this application.

The proposed project is the application by Santilli Commercial Developers, LLC (previously Napoho Associates; "Santilli/Napoho") to mine up to 25 feet deeper in an existing sand mine on a 14.68 acre parcel of land, located north of the Northport-Kings Park Road within the Town of Smithtown, Suffolk County. The mine has had a DEC MLRL permit since at least 1982, and mining activities on the site had occurred even earlier. The site is located over Long Island's sole source aquifer, which provides drinking water for nearly two million people. The proposed deepening would bring the floor of the mine within 25 feet of the water table. Mixed land uses adjoin the site, including relatively recent residential developments to the northwest, north, and east; a golf driving range and Town Highway Department facilities to the southeast and south; and industrial uses including a former mine now proposed for a light industrial park, an inactive waste tire facility, and a construction and demolition (C&D) landfill to the southwest and west.

DEC Region 1 has jurisdiction to issue or deny the requested modification of an existing MLRL permit pursuant to Article 23 of the ECL and Parts 420-425 of 6 NYCRR. The Smithtown Town Board (Town Board) would need to grant a change of zone and a Special Exemption to allow the mining to proceed. The Town also stated that the Smithtown Board of Site Plan Review would need to grant Site Plan Approval for any proposed post-mining development of the property. The Town Board proposes to serve as 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:

  • 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);
  • which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  • 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. The Town Board identified several potential impacts related to the proposed increase in depth of the Santilli/Napoho sand mine, including conflict with Town plans; impairment of existing community character; effects on the sole source aquifer; and an array of concerns common to most mining operations, including local air quality (dust and emissions), noise, and traffic. The Town Board noted that, while the mine has held a DEC permit for many years, actual mining activity on this property has been minimal over the last few years, and suggested that multiple sensitive receptors would potentially be affected by increases in duration and intensity of mining activity.

DEC Region 1 stressed the potentially highly significant impacts which could result from deeper mining, which would bring the mine floor closer to the region's sole source aquifer. While the numerous local impacts related to mining operations are likely to occur, and the proximity of new residential developments to the mine site could even increase the numbers of individuals who are aware of those impacts, they are still local impacts common to nearly all mining operations. On the other hand, potential impacts to a sole source aquifer serving a population the size of that on Long Island are clearly highly significant and of regional importance. Accordingly, DEC Region 1 is the most appropriate lead agency based on the first criterion.

Under the second criterion, breadth of authority, DEC Region 1 is also the appropriate lead agency. While ECL 23-2703(3), a portion of a package of 1991 amendments to the MLRL, established special standards for coordination between DEC Region 1 and local governments on Long Island for the review of mining applications, it did not grant any additional substantive authority to those local governments as far as regulating the actual conduct of mining. The Town's ability to suggest or provide conditions for any MLRL permit eventually issued for activities on the site remains limited to the following:

  • ingress and egress to public thoroughfares controlled by the Town of Smithtown;
  • routing of mineral transport vehicles on town roads;
  • developing requirements and conditions for inclusion 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 Region 1.

DEC Region 1 must either incorporate into its permit conditions those recommendations on issues for which MLRL recognizes a local government role and which DEC Region 1 finds reasonable, or provide the Town with a written explanation as to why any part of the recommendations are not incorporated. Thus, DEC Region 1 retains its exclusive authority under the MLRL to regulate all aspects of the proposed project related to mining and reclamation, and so possesses the broadest authority to address the identified potential impacts of the proposal to deepen the Santilli/Napoho mine, by virtue of this exclusive authority.

Because I can reach my decision on the basis of the first two criteria, I do not reach the third criterion, which agency has the greatest capability for providing the most thorough environmental assessment. I do note, however, that both agencies possess, or could obtain through consultants, the staff to conduct a thorough environmental review.

Based on all the foregoing, I conclude that the DEC Region 1 should be lead agency for the SEQR review of the proposal by Santilli Commercial Developers, LLC (formerly Napoho Associates) to increase the depth of an existing sand mine by up to 25 feet. I base my decision on the regionally-significant potential impacts of the proposed activity as well as the substantially broader authority of DEC under the MLRL.

/s/

Erin M. Crotty, Commissioner

Dated: August 25, 2004
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant:

Patrick R. Vecchio, Supervisor, Town of Smithtown
Russell K. Barnett, Environmental Protection Director, Town of Smithtown
Yvonne Lieffrig, Esq., Town Attorney, Town of Smithtown

Peter Scully, Regional Director, DEC Region 1
John Pavacic, Regional Permit Administrator, DEC Region 1
Karen Murphy, Esq., DEC Region 1

John B. Zollo, Esq., for Santilli Commercial Developers, LLC
Anthony Santilli, Santilli Commercial Developers, LLC

New York State Department of Environmental Conservation, Region 1:

John Wieland, Deputy Regional Permit Administrator

New York State Department of Environmental Conservation, Albany:

Michael Naughton, Counsel, Division of Legal Affairs
Betty Ann Hughes, Division of Environmental Permits

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