Town of Wawayanda v. DEC (Tetz Pine Lane Sand and Gravel)
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: Tetz Pine Lane Sand and Gravel: Designation of lead agency for the review of a proposed sand and gravel mine in the Town of Wawayanda in Orange County
DISPUTING AGENCIES: Town of Wawayanda
Region 3 Office, New York State Department of Environmental conservation
This decision to designate the Department of Environmental Conservation (DEC) Region 3 office as 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 617. I find that the Department of Environmental Conservation has the broadest governmental powers for the investigation of the impacts of the proposed action, as well as the greater expertise required for a thorough environmental review.
The proposed project is the application of Tetz & Sons Sand and Gravel to mine sand and gravel from an approximately 102-acre parcel known as the Pine Lane Mine in the Town of Wawayanda, Orange County.
In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.
Examination of the first criterion shows that although the physical location of the impacts will be primarily local, some of the resources to be affected have regional importance. There is the potential degradation of the Monhagen Brook, a Class "B" stream, which bisects the site. The mine site is within Orange County Agricultural District #2. The project site is within an area shown on the Statewide Archaeological Inventory Map as one which has the potential for yielding archaeological artifacts. There are other anticipated effects from the project including traffic, visual and noise impacts. Since this mining and reclamation plan, as now submitted, does not strongly favor either the local or state agency, I must examine the remaining two criteria.
The next criterion to consider in this dispute is the breadth of jurisdiction. This criterion favors DEC as lead agency. The Town raised concerns about the future uses of the site. Originally, in both the EAF and the "Mining and Reclamation Plan Report," the applicant has stated that its development plans include preparing the site for future retail business center, light industrial office complex, or residential use development. However, the applicant has since changed its mind and has restated its intentions. It now professes that it proposes to have the site revert to its present agricultural use. It further states that further development is neither proposed nor foreseen. The requested site is located in the Town of Wawayanda's Planned Development (PD) Zoning District. The Town has jurisdiction to consider a Special Use Permit under the Town's Zoning Law. In order for the project to be operated as proposed, the applicant must obtain a special use permit from the Town of Wawayanda. Special use permits carry with them the presumption that the use is allowed in the applicable zone so long as established conditions and/or standards are met.
In November, 1993, the Town of Wawayanda adopted Local Law #5 of 1993 which imposes a one-year moratorium staying any reviews or approvals of "earth operations" by any agency of the Town. This moratorium is a temporary measure which DEC does not believe divests the Town of its jurisdiction under SEQR or changes its status as an involved agency. This is evidenced by Article VIII of the local law establishing the moratorium which allows the Town to review applications for hardship determinations and process them under certain circumstances.
The applicant must also obtain a Protection of Waters and MLRL permit from DEC. With the current application, the DEC has jurisdiction and authority to issue or deny a mining permit under the authority of the Mined Land Reclamation Law (MLRL). The DEC Region 3 office is reviewing this application.
This request for resolution of a lead agency dispute is similar to several others I have been called on to make relating to the MLRL (ECL Section 23-2701 et seq.). The MLRL supersedes all other state and local laws related to the regulation of mining, except for local land use or zoning ordinances. Recent MLRL legislation has provided specific guidance regarding local government involvement in the review of mining applications. Local governments can advise the DEC in regard to: setbacks from property boundaries and public thoroughfares and right-of-way; man- made or natural barriers designed to restrict access if needed and, if affirmative, the type, length, height and location of barriers; dust control; hours of operation; and whether mining is prohibited at the proposed location. DEC must incorporate into the permit those determinations that are found to be reasonable and/or must provide a written explanation to the local government if any or part of the determinations have not been incorporated. It is clear that the jurisdiction of the DEC under the MLRL is much broader than the jurisdiction of the Town of Wawayanda, given the fact that conditions of the special use permit that would attempt to control the method of operation and the duration of the operation would likely be preempted by the MLRL.
The third criterion also favors DEC as lead agency. DEC staff has considerable experience in the review of mined land proposals and site reclamation. The level of expertise available to DEC would be difficult for any town to obtain, even through the use of consultants.
I conclude, based on the facts presented, that the Region 3 office of the Department of Environmental Conservation best serves the function of lead agency for conduct of the environmental review for the Pine Lane Sand and Gravel mining application due to its broad jurisdiction under the MLRL and the expertise of staff in reviewing mining and reclamation projects.
This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and to assist the DEC in completion of the environmental review process. The issues raised by the Town of Wawayanda must be considered by the DEC in making its determination of significance.
Langdon Marsh, Commissioner
Dated: March 18, 1994
Albany, New York
Distribution of Copies:
- Jeffery K. Bridges, Jr., Supervisor, Town of Wawayanda
E. Tetz, President, Pine Lane Sand & Gravel
J. Ullrich, Chazen Engineering & Land Surveying Company
New York State Department of Environmental Conservation:
- Acting Commissioner Marsh
J. McGrane, Director, Region 3
Additional Copies - Involved/ Interested Agencies: