DEC v. Town of Saugerties
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 Gilbert Shott and Shott Rock, Inc., to operate a bluestone mine in the Town of Saugerties, Ulster County.
DISPUTING AGENCIES:Region 3 Office, New York State Department of Environmental Conservation (DEC) and the Town of Saugerties Town Board.
This decision to designate the Region 3 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 broad and exclusive authority under the Mined Land Reclamation Law (MLRL) for investigation of all aspects of mining and reclamation.
The proposed project is the application by Gilbert Shott and Shott Rock, Inc. to mine and process bluestone from 25.5 acres on a 45 acre parcel located in the Town of Saugerties, Ulster County.
The Region 3 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to Article 23 of the ECL, 6 NYCRR Parts 420-425, a State Pollutant Discharge Elimination System (SPDES) permit pursuant to Article 17 and a State Facility Air Emissions permit pursuant to Article 17. At the time the dispute was initiated, the Town of Saugerties Planning Board was reviewing applications for a special use permit and a site plan approval which were required in order for the mine to be located in a Rural Recreation Residence zone in the town. However, on October 24, 2001 the Town of Saugerties Town Clerk filed with the Department of State Local Law No. 3 of 2001 which amended the Town of Saugerties Zoning code to prohibit mining and quarrying in all zones except Industrial and Highway Business. This action by the Town of Saugerties Town Board has eliminated the jurisdiction of the Town of Saugerties Planning Board over the action. The Town Board still asserts that it retains discretionary authority over the proposed action including the potential for an amendment to the Town Zoning Code should the applicant chose to follow that approach. Not withstanding these developments which cast doubt on the jurisdiction of the Town of Saugerties, I choose to resolve the petition for designation of lead agency on its merits.
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 Saugerties identified the following potential environmental concerns regarding the proposed mine as being of primarily local concern: truck traffic, noise impacts from mining, processing and transportation, impact to adjacent private wells and a municipal water line, aesthetic and quality of life impacts on residents and impacts from fugitive dust. In addition to the impacts characterized as being primarily of local concern, the Region 3 DEC office identified the potential for impact to New York State Route 212, potential visual impacts and potential for impact to an unnamed tributary (classified as a Class C water) to the Beaver Kill as impacts of regional concern.
Although there are impacts of regional concern most of the identified impacts are of local concern and will affect the residents of the Town of Saugerties. By listing the lead agency criteria in order of importance, the regulations require me to designate a local agency 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. Assuming the agencies involved have equivalent powers under the remaining criteria, this would result in the designation of a local agency as lead agency.
The remaining two considerations, however reveal considerable disparities between the involved agencies. Therefore, I conclude that the proposed action's localized impacts should not serve as the 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 reclamation. The Town's ability to condition the activities on the site is limited to making recommendations to DEC on the following:
- ingress and egress to public thoroughfares controlled by the Town of Saugerties;
- routing of mineral transport vehicles on town roads;
- requirement and conditions as specified 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 must incorporate into its permit conditions those recommendations by the Town of Saugerties that are found to be reasonable, or DEC must provide a written explanation to the Town if any or part of the recommendations are not incorporated.
The breadth of DEC's powers for investigation under MLRL is superior to the Town's authority. DEC has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. 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 and reclamation. It is clear that the jurisdiction of the Region 3 office of DEC regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Town of Saugerties.
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 3 office of DEC should be lead agency for the SEQR review of the proposal by Gilbert Shott and Shott Rock, Inc., based on its broad and exclusive 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 Saugerties. The applicant must, prior to commencing the action, resolve the issue of the applicability of the Town of Saugerties Zoning Law to the proposed mining at the site. I strongly encourage the Town of Saugerties to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Town of Saugerties to support its decision to issue or deny its approvals, if such approvals are needed.
Erin M. Crotty, Commissioner
Dated: November 30, 2001
Albany, New York
- Margaret Duke, Acting Regional Director, DEC Region 3
Dominic Cordisco, Esq., DEC Region 3
R. Scott Ballard, Environmental Analyst, DEC Region 3
Greg Helsmoortel, Supervisor, Town of Saugerties
William Creen, Chairman, Town of Saugerties Planning Board
John Vagianelis, Esq., Roemer, Wallens & Mineaux
Gilbert Shott, Shott Rock Inc.
Kevin Bernstein, Esq., Bond, Schoeneck & King
New York State Department of Environmental Conservation:
- Michael Naughton, Counsel, Division of Legal Affairs
Jack Nasca, Environmental Permits, Albany