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Town of Onondaga 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 W. F. Saunders & Son, Inc. to develop a surface unconsolidated mine in the Town of Onondaga, Onondaga County

DISPUTING AGENCIES: Town of Onondaga Town Board and Region 7 Office, New York State Department of Environmental Conservation (DEC)

This decision to designate the Region 7 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 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 W. F. Saunders and Son, Inc. to mine unconsolidated sand and gravel on 69.83 acres of a 77.86 acre parcel ("Haendle property") located in the Town of Onondaga, Onondaga County. Processing will be done at an existing, adjoining facility operated by the same corporation which already possesses MLRL and other DEC permits. Access to the new site will be through the existing mine.

The Region 7 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to Article 23 of the ECL, 6 NYCRR Parts 420-425, and no other DEC permits will be required. The Town of Onondaga states that mining is not allowed nor is there a permit available for mining under the parcel's current zoning. Thus, the Town Board would need to enact a local law to change the zoning of the subject parcel and allow mining to proceed on this property.

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. The Town of Onondaga identified the following potential environmental issues regarding the proposed mine as being of primarily local concern: truck traffic; noise impacts from mining, processing and transportation; aesthetic and quality of life impacts on nearby residents; and impacts from fugitive dust. The Region 7 DEC office generally concurs with the conclusion that the named impacts are primarily of local effect, and will primarily affect residents of the Town of Onondaga. Traffic impacts extend beyond the Town of Onondaga along NY State Route 80.

The regulations list the criteria for determining lead agency in order of importance, and require the designation of a local agency as lead where the impacts from a proposed action are primarily local and the disputing agencies have equal powers for investigation and capabilities for providing thorough environmental assessment. When the agencies involved truly have equivalent powers under the remaining criteria, this would result in the designation of the local agency as lead agency.

In this case, however, the remaining two considerations reveal considerable disparities between the involved agencies. Therefore, I conclude that the proposed action's localized impacts should not serve as the sole basis of this decision.

In particular, the next criterion, the breadth of jurisdiction, substantially favors DEC as lead agency. The MLRL preempts all other state and local laws related to the regulation of mining and 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 Town of Onondaga;
  • 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.

DEC 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 Town's 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 the Town of Onondaga that are found to be reasonable, or DEC must provide a written explanation to the local government if any or part of the recommendations are not incorporated. It is clear that the jurisdiction of the Region 7 office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Town of Onondaga.. The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. I find that both agencies possess, or could obtain through consultants, the staff to conduct a thorough environmental review. However, DEC staff 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 for this project.

I conclude that the Region 7 office of DEC should be lead agency for the SEQR review of the proposal by W. F. Saunders and Son, Inc. to develop a mine on the Haendle property, based on its 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 Town of Onondaga. The applicant must, prior to undertaking mining activities, resolve the site's incompatible zoning under the Town of Onondaga Zoning Law. I strongly encourage the Town of Onondaga to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Town of Onondaga to support its decision to issue or deny any approvals, amendments or variances it has authority to grant for this project.

/s/
Erin M. Crotty, Commissioner
Dated: August 16, 2002
Albany, New York

Disputing Agencies/Applicant:

  • Kenneth Lynch, Regional Director, DEC Region 7
    Jennifer Powell, Esq., and William Gallagher, Esq., DEC Region 7
    Joanne March, Deputy Regional Permit Administrator, DEC Region 7
    Thomas P. Andino Jr., Supervisor, Town of Onondaga
    William Creen, Chairman, Town of Onondaga Planning Board
    Kevin Gilligan, Esq., Costello, Cooney & Fearon, LLP
    Michael Burt, W. F. Saunders, Inc.

New York State Department of Environmental Conservation:

  • Michael Naughton, Counsel, Division of Legal Affairs
    Jack Nasca, Division of Environmental Permits
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