Town of Grafton 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 R. J. Valente to mine sandstone on 81 acres of a 136-acre site in the Town of Grafton, Rensselaer County
DISPUTING AGENCIES: Town of Grafton Planning Board, Region 4 Office, New York State Department of Environmental Conservation (DEC)
This decision to designate the Region 4 Office of the Department of Environmental Conservation 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 and 6 NYCRR 617. I find the potential impacts are regional and statewide in nature since they would affect more than the immediate local environs. In addition, DEC's jurisdiction under Mined Land Reclamation Law (MLRL), State Pollution Elimination Discharge System (SPDES), Air Pollution Control regulations and possibly Protection of Waters regulations, are broader than that of the Town of Grafton's Site Plan Review process. Finally, DEC has the capability and expertise to conduct the environmental assessment for this project.
The proposed project is the application of R. J. Valente to mine graywacke from 81 acres of a 136-acre parcel on the south side of NYS Route 2 in the Towns of Grafton and Brunswick in Rensselaer County.
The Region 4 Office of DEC has jurisdiction to consider the following:
• Mined Land Reclamation permit pursuant to 6 NYCRR Parts 420-425.
• State Pollution Discharge Elimination System (SPDES) permit pursuant to 6 NYCRR Parts 750-757.
• Air Pollution Control permit pursuant to 6 NYCRR Parts 200, 201, 212, and 227.
• Possible Protection of Waters permit pursuant to 6 NYCRR Part 608.
The Town of Grafton Planning Board has jurisdiction to consider a site plan application. Both DEC and the Town of Grafton Planning Board identified a list of environmental concerns for the proposed mine including:
- • air quality issues;
- • water quality issues;
- • noise considerations;
- • traffic concerns;
- • aesthetic resources;
- • vegetation and wildlife;
- • cultural resources;
- • recreational concerns; and
- • public safety.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 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; (2) which agency has the broadest governmental powers for investigation of potential impacts of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
In consideration of the first criterion, some of the typical local impacts associated with a mining operation are traffic, visual, fugitive dust and land use. Both the Town of Grafton and DEC have identified these issues as being local in nature. The Town of Grafton raised recreational and public safety concerns in relation to the blasting at the proposed mine which are also a local concern.
With respect to regional issues, this proposed action has the potential to impact the Clum Corners Aquifer which is currently being studied as a potential water source for the Town of Brunswick and is outside the borders of the Town of Grafton. The water quality and quantity within this aquifer are clearly regional issues. DEC and the Town of Grafton have both identified potential effects to the Quaken Kill, a Class A(Ts) trout steam that flows through several municipalities on its way to the Poestenkill and ultimately to the Hudson River. The water quality and quantity concerns for this high-quality trout spawning stream are again clearly regional in nature. Both the Town of Grafton and DEC raised air quality concerns; i.e., fugitive dust, which also crosses municipal boundaries potentially affecting the residents of the Town of Brunswick as well as anyone traveling on NYS Route 2.
The issue of potential impacts to cultural resources has been raised by both the Town of Grafton and DEC. This concern is of potential statewide significance and out of the purview of both disputants. The New York State Office of Parks, Recreation and Historic Preservation (OPRHP) has expertise regarding cultural resources. The designated lead agency, whether state or local, will be responsible to refer the proposed project to OPRHP for its analysis and recommendations. Furthermore, DEC indicated that the site may contain protected plant and animal species requiring statewide evaluations.
In consideration of the above, I find that the anticipated impacts for this project are primarily of statewide and regional significance since they would extend beyond the local community and, therefore, according to the criteria contained in 6 NYCRR Part 617.6 (b)(5)(v) favor the Region 4 Office of DEC as lead agency.
The next criterion, the breadth of jurisdiction, clearly favors the Region 4 Office of DEC as lead agency. The Town of Grafton Planning Board's jurisdiction stems from the issuance of site plan approval. The Town of Grafton has not enacted zoning which means that mining is an allowable use anywhere within the Town.
DEC has exclusive authority under the MLRL to regulate all aspects related to mining and reclamation. The breadth of the DEC's jurisdiction under the MLRL, when combined with potential regional/statewide impacts, has been an important consideration in resolving other lead agency disputes for mining projects. The MLRL supersedes all other state and local laws related to the regulation of mining, except local land use or zoning ordinances, of which the Town of Grafton has none. The MLRL provides specific guidance regarding local government involvement in the review of mining applications. Local governments can advise DEC in regard to: setbacks from property boundaries and public thoroughfares and rights-of-way; man-made or natural barriers designed to restrict access if needed and their type, length, height and location; 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 their determinations are not incorporated. It is clear that the jurisdiction of DEC under the MLRL regarding mining, as well as the SPDES permit and the Air Pollution Control permit, along with a possible Protection of Waters permit, is much broader than the limited authority of the Town of Grafton Planning Board.
The third criterion asks which agency has the greatest capability for providing the most thorough environmental assessment. Both agencies either possess the ability to conduct a thorough environmental assessment or could obtain such ability through consultants.
I conclude, based on the facts presented and the criteria contained in 6 NYCRR Part 617.6(b)(5)(v) as discussed above, that the Region 4 Office of DEC should be lead agency for the SEQR review of the proposed Valente mine.
This decision in no way alters the jurisdiction of the Town of Grafton. The applicant must apply for and obtain all of the necessary town approvals prior to commencing the action. I encourage the Town of Grafton to identify their environmental concerns so that the Region 4 Office can consider them in DEC's determination of significance.
Michael Zagata, Commissioner
Dated: June 5, 1996
Albany, New York
Distribution of Copies:
- NYSDOT Region 1
Town of Brunswick
Town of Grafton
R. J. Valente Gravel, Inc.
New York State Department of Environmental Conservation:
- Michael Zagata, Commissioner
Additional Copies - Involved/ Interested Agencies: