Town of Kinderhook, v. DEC (28-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: R.J. Valente Gravel, Inc. Sand and Gravel Mine #8: Designation of lead agency for the review of a proposed 28-acre sand and gravel mine on a 97-acre parcel in the Town of Kinderhook, Columbia County
DISPUTING AGENCIES: Town of Kinderhook
Region 4 Office, New York State Department of Environmental Conservation
This decision to designate the Town of Kinderhook Planning Board 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 potential impacts of the proposed action are local in nature and will be confined to the Town of Kinderhook.
The proposed project is the application of R.J. Valente Gravel, Inc. for construction and operation of a 28-acre sand and gravel mine on a 97-acre parcel of land in the Town of Kinderhook, Columbia County. The Region 4 office of the DEC has jurisdiction to issue or deny a mining permit under the authority of the Mined Land Reclamation Law (MLRL), and the Town of Kinderhook Planning Board has jurisdiction to consider a special use permit.
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.
In consideration of the first criterion, the typical impacts associated with a small mining operation are traffic, noise, visual, fugitive dust and land use. In addition, this particular action has the potential for impact to a regulated freshwater wetland (K-126) and the site is located within a historic and/or archaeologically sensitive area as designated by the New York State Office of Parks, Recreation and Historic Preservation.
The Town contends that given the size of the proposed operation, the impacts will be those usually associated with local land use decisions and, therefore, they will be primary local in nature. The Region 4 office has acknowledged that impacts such as traffic, noise, visual and land use will be primarily local in nature.
The DEC Region 4 staff contend that because of the nearby regulated freshwater wetland and the potential for disturbance of archaeological resources, impacts could carry the weight of regional or statewide concern. However, Region 4 points out that mining will not occur in the wetland or its adjacent area and that given adequate soil erosion control plans, which the Department may require under its MLRL authority, the potential impacts on the wetland would be minimal.
To determine the potential for impacts on archaeological resources, a Stage 1A/lB survey will be required by DEC to fulfill its State Historic Preservation Act responsibilities. If any impacts on these resources are identified in the survey, then further steps will be necessary to protect any resources before a mined land permit can be issued by DEC. This level of protection exists regardless of which governmental entity serves as lead agency.
I find that the primary impacts will be noise, traffic, fugitive dust and land use and that these impacts are local in nature. I further find that the potential for impacts to resources of regional and statewide concern are either minimal in the case of the wetland or, at present, remote in the case of archaeological concerns.
Therefore, I agree with the Town that the anticipated impacts are primarily local.
The next criterion to consider in this dispute is the breadth of jurisdiction. Both agencies possess the necessary jurisdiction to act as lead agency for the review. The jurisdiction of the Town lies in the issuance or denial of a special use permit under the Town's zoning ordinance. The DEC has exclusive authority under the MLRL to regulate all aspects relating to mining and reclamation. The breadth of the Department's jurisdiction under the MLRL, when combined with regional/statewide impacts, has been an important consideration in resolving other lead agency disputes for mining projects. In this case, the limited scope of the proposed action and the fact that the potential impacts are primarily local in nature override the broader jurisdiction of the DEC.
The third criterion is which agency has the capability to complete the environmental review. Both agencies possess the staff and expertise necessary for a thorough environmental review. DEC staff has considerable experience in the review of mined land proposals throughout the region. The Town of Kinderhook, in its submission, has claimed that it has a demonstrated track record of promptly and capably handling environmental reviews and that it has been thorough and responsible in these reviews. I have considered this and placed great weight on this information in my decision. However, failure by the Town of Kinderhook to meet its obligations as lead agency in a reasonable and timely fashion will cause me to revisit this issue in any future lead agency dispute on a mining application between the Town and DEC.
I conclude, based on the facts presented, that the Town of Kinderhook Planning Board should be lead agency for review under SEQR for the proposed R.J. Valente Sand and Gravel Mine Bank #8 because of the size of the mine and because the potential impacts are local in nature.
This decision does not give the Town of Kinderhook additional jurisdiction over the proposed action with regard to mining. The Town's authority to regulate mining at the site is still limited by the provisions of the MLRL which gives to DEC the exclusive authority to regulate the extraction of minerals from the site and subsequent reclamation. The DEC, due to the exclusive nature of its jurisdiction, should work closely with the Town of Kinderhook in the conduct of the environmental review process.
Langdon Marsh, Commissioner
Dated: May 24, 1994
Albany, New York
Distribution of Copies:
- The Honorable Keith W. Stack, Supervisor, Town of Kinderhook
Roderick J. Valente, President, R.J. Valente, Inc.
William J. Better, Esq.
James Green, P.E.
George L. Marshall
New York State Department of Environmental Conservation:
- Acting Commissioner L. Marsh
A. Adamczyk, Director, Region 4
Additional Copies - Involved/ Interested Agencies: