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DEC v. Town of Claverack (12.1-acre sand and gravel mine)

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 Southern Columbia Sand & Gravel to develop a sand and gravel mine in the Town of Claverack, Columbia County

DISPUTING AGENCIES: Region 4 Office, New York State Department of Environmental Conservation (DEC), and the Town of Claverack Zoning Board of Appeals

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 on my findings that DEC has broader jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation.

The proposed project is the application by Southern Columbia Sand & Gravel to develop a 12.1-acre sand and gravel mine on a 40.1-acre parcel in the Town of Claverack, Columbia County. The operation will be a surface and subaqueous, unconsolidated mine with reclamation to a private residence with a pond.

The Region 4 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to 6 NYCRR Parts 420-425, Article 23 of the ECL and a freshwater wetlands permit pursuant to 6 NYCRR Part 663, Article 24. The Town of Claverack Zoning Board of Appeals is required to issue a special exception permit in order for the mine to be located in a Rural Recreation Residence zone in the Town.

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 Claverack Zoning Board of Appeals identified the following potential environmental concerns regarding the proposed mine: noise impacts from mining, processing and transportation; truck traffic through the Hamlet of Claverack; impacts from fugitive dust; potential for impact to state regulated wetland CK-11; potential for impact to adjacent private water supply wells from mining below the water table; and the potential for cumulative impacts from the operation of this facility along with two other mines located within a ½- mile radius of the site. The potential for cumulative impacts from the operation of three mines within a ½-mile radius would appear to be focused on traffic. All three sites appear to have primary access via State Routes 9(H) & 23. The truck traffic to be generated by the proposed Southern Columbia Sand & Gravel mine would have to consider in its traffic assessment the existing level of truck traffic not only from the two adjacent mines but other sources of truck traffic to this road network. This type of an assessment would have to be conducted regardless of which agency is designated as the lead agency.

Most of the impacts identified above are of local concern and will affect the residents of the Town of Claverack. However, the potential impacts to New York State Route 9H from additional truck traffic is a regional concern. Also of regional concern are the potential for impact to state regulated wetland CK-11 from the widening of Route 9H, runoff and the potential disruption of water levels in the wetland from mining below the water table. Because the potential environmental impacts of this project contain impacts that are of both local and regional concern, I must consider criterion number 2 in making my decision.

In particular, the next criterion, the breadth of jurisdiction, substantially favors DEC as lead agency. The project sponsor must obtain a MLRL permit for the site from DEC. The MLRL preempts local 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 Claverack;
    • 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 has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of DEC's jurisdiction 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 Claverack 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 4 Office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Town of Claverack Zoning Board of Appeals.

It is the exclusive nature of DEC's jurisdiction over mining and reclamation that causes me to find in favor of the Region 4 Office in the application of this criterion.

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, based on DEC's broader jurisdiction under MLRL, the potential for impact to a state regulated wetland and its greater experience in the review of mining applications, that the Region 4 Office of DEC should be lead agency for the SEQR review for the proposal by Southern Columbia Sand & Gravel.

This decision in no way limits the jurisdiction or responsibility of the Town of Claverack. The applicant must obtain the necessary special exception permit from the Town of Claverack before commencing the action. I strongly encourage the Town of Claverack to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Town to support its decision to issue or deny its approval.

/s/
Erin M. Crotty, Commissioner
Dated: June 3, 2001
Albany, New York

Disputing Agencies/Applicant:

  • Steve Schassler, Regional Director, DEC Region 4
    William Clarke, Regional Permit Administrator, DEC Region 4
    Arthur Henningson, Environmental Analyst, DEC Region 4
    James Keegan, Supervisor, Town of Claverack
    Daniel Zinkus, Chairman, Town of Claverack Zoning Board of Appeals
    Robert Shapiro, Southern Columbia Sand & Gravel
    David Robinson, Clough, Harbour & Associates, Consultant for Town of Claverack ZBA

New York State Department of Environmental Conservation:

  • Glen Bruening, Executive Deputy Commissioner
    Victor Gallo, Counsel, Division of Legal Affairs
    Jack Nasca, Division of Environmental Permits
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