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Town of Nassau 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 Troy Sand and Gravel, Inc. to develop a new hard rock quarry (Nassau Quarry) in the Town of Nassau, Rensselaer County.

DISPUTING AGENCIES: Town of Nassau Planning Board and Region 4 Office, New York State Department of Environmental Conservation (DEC).

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 primarily on my findings that potential impacts of this project are of regional as well as local significance, and furthermore, 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 Troy Sand and Gravel, Inc. to develop an approximately 88-acre hard rock (graywhacke sandstone) quarry within a 214.2 acre parcel in the Town of Nassau, Rensselaer County. The proposed mining operation would remove much of the north and western faces of a moderately steep hill, in 18 phases. Reclamation is proposed to be open woodland using planted grass and trees. The proposed mine site is located in a relatively undeveloped, mostly wooded area on the east side of New York State (NYS) Route 66, roughly midway between Hoag Corners and Denault Corners.

The Region 4 Office of DEC has jurisdiction to issue or deny a MLRL permit pursuant to Article 23 of the ECL, 6 NYCRR Parts 420-425. The Town of Nassau Planning Board has jurisdiction to issue or deny a Site Plan Approval and is required to make a recommendation to the Town Board on a Special Use Permit; the Town Board is authorized to review and decide the Special Use Permit. The Town Board proposed that the Town, "through the Town of Nassau Planning Board", serve as the Lead Agency. No other agencies have asserted jurisdiction.

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. Both DEC Region 4 and the Town of Nassau identified a range of potential impacts related to development and operation of a new hard rock quarry at the proposed site. Many of the potential impacts of the proposed quarry would be those common to mining operations generally, including noise and fugitive dust concerns from general operations plus blasting. The proposed mine's road access is directly onto NYS Rt. 66, so there is potential for impacts to through traffic as well as local traffic, and the proposal to remove a substantial portion of a hillside raises a potential for visual impacts. In this case, noise, dust and similar operational impacts would most likely be realized locally while visual and traffic impacts are likely to be broader in reach. Accordingly, I cannot reach a determination based on the first criterion.

The second criterion, breadth of authority, clearly favors the DEC. The MLRL preempts all other state and local laws related to the regulation of mining, so 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 Nassau;
  • 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, in contrast, 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, particularly since the Town's highway authority is negated by the proposal to route mine traffic from the haul road directly onto a state highway. 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 Nassau that are found to be reasonable, or provide a written explanation why any or part of the recommendations are not incorporated. It is clear that the jurisdiction of the Region 4 DEC office regarding mining and reclamation under the MLRL is much broader than the jurisdiction of the Town of Nassau Planning Board.

The third criterion is based on which agency has the greatest capability for providing the most thorough environmental assessment. The Town of Nassau indicated that it would need, and had preliminarily arranged for, consultant services to assist it in conducting the environmental review of this proposed mine. Thus, I find that both agencies possess, or could obtain through consultants, the expertise 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 of this project.

I, therefore, conclude that the Region 4 office of DEC should be lead agency for the SEQR review of the proposal by Troy Sand and Gravel, Inc. to to develop an approximately 88-acre hard rock (graywhacke sandstone) quarry based on the DEC's 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 Nassau. The applicant must, prior to undertaking mining activities, obtain site plan and special use permit approvals from the Town. I strongly encourage the Town of Nassau to actively participate in the environmental review so that the record developed is accurate and contains the information needed by the Town of Nassau to support its decision to issue or deny those approvals.

/s/
Erin M. Crotty, Commissioner
Dated: April 4, 2004
Albany, New York

Disputing Agencies/Applicant:

  • Philip J. Danaher, Esq., for Town of Nassau
    Carol Sanford, Supervisor, Town of Nassau
    Steven Schlassler, Regional Director, DEC Region 4
    Blaise Constantakes, Esq., DEC Region 4
    William J. Clarke, Regional Permit Administrator, DEC Region 4
    Andrew Gilchrist, Esq. for J. Clemente, Troy Sand & Gravel, Inc.

New York State Department of Environmental Conservation, Albany:

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

Additional Copies - Involved/ Interested Agencies:

  • Town of Lewisboro Town Board
    Westchester County Department of Health
    Westchester County Planning Board
    NYS Department of Transportation, Region 8
    Connecticut Department of Environmental Protection; attn: Robert Hust, Supv. Environmental Analyst
    First Taxing District of Norwalk, Connecticut; attn: Franco Chieffalo, Gen. Supv.
    The Helmes Group (for Fire District); attn: Peter J. Helmes, AIA
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