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Town of Rochester and the New York State Department of Environmental Conservation Region 3

Project: Proposed Amanda Drive Bluestone Quarry by Mombaccus Excavating, Inc., Town of Rochester, Ulster County

Disputing Agencies: Town of Rochester and the New York State Department of Environmental Conservation Region 3

I have been asked to designate a lead agency to conduct the environmental review of the proposed Mombaccus Excavating, Inc. Amanda Drive Bluestone Quarry project, in the Town of Rochester, Ulster County, under the New York State Environmental Quality Review Act [(SEQR), Article 8 of the New York State (NYS) Environmental Conservation Law (ECL); see also, Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 617)]. This designation of the New York State Department of Environmental Conservation, through its Region 3 Office (NYSDEC), is based on NYSDEC's broader jurisdiction under the Mined Land Reclamation Law (MLRL) to regulate all aspects of mining and reclamation and its experience in reviewing mining projects.

Action and Site

The proposed action involves the application by Mombaccus Excavating, Inc. (Mombaccus) to create a nine and a half (9 ½) acre consolidated bluestone mine with the reclamation goal of preparing the parcel for development of a single family residence. The grading and preparation will require removal of over twenty feet of consolidated stone over a multi-year period. Stone removed from the site will be transported by truck approximately 2.5 miles to the currently permitted and operating Mombaccus' MEI Mine located off Rochester Center Road, where processing, sale and export will be done. The life of mine area for the proposed Amanda Drive project consists of an approximately 7.5 acre excavation area plus approximately 2 acres of access road. The mine is located on a small bedrock ridge made up of feldspathic and quartz sandstone, commonly referred to as "bluestone". The topography in and around the site ranges from gentle through steep slopes to near vertical bedrock outcrops. The mine site is rural in nature, consisting of and surrounded by wooded lands with bedrock outcrops. The site is entirely owned by Mombaccus Estates, Ltd., an affiliate of Mombaccus Excavating, Inc., and is located entirely within the Town of Rochester, Ulster County.

Regulatory Setting

The role of lead agency may be assumed only by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. The Town of Rochester Planning Board (Town) and NYSDEC are the only two "potentially involved" agencies with approval or permitting authority for this project as currently proposed:

  • The Town has jurisdiction and discretion to grant a special use permit application for the proposed mine.1 The site is currently zoned "R-1" according to the Town of Rochester Zoning Map. Under the Town of Rochester Zoning Code, mining is a permitted use within the R1 zone, but must receive a Special Use Permit.2
  • NYS Department of Environmental Conservation (NYSDEC) Region 3 Office has jurisdiction to issue or deny an MLRL permit pursuant to Article 23, Title 27, of the ECL and 6 NYCRR Parts 420-425. In addition, this project will require assessment of the project's conformance with the SPDES General Permit for Stormwater Discharges under Article 17 of the ECL and 6 NYCRR Part 750 and a possible permit for taking of a Threatened Species (Timber rattlesnake, Crotalus horrridus) under Article 11 of the ECL and 6 NYCRR Part 182.4, based on the known areas identified by NYS DEC as occupied by this species plus the general habitat requirements of the species.

Discussion

The disputing agencies are the Town and the NYSDEC, through its Region 3 Office. No other involved agencies have sought lead agency status or commented on the request for lead agency designation.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR §617.6(b)(5)(v) as follows:

a) 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);
b) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
c) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. First Criterion

The first criterion asks whether the potential impacts from the proposed action are of local, regional or statewide significance. In this case, the responding agencies have preliminarily identified potentially significant impacts at the local as well as regional or broader levels. NYSDEC and the Town identified the following potential environmental concerns regarding the proposed mining operations:

  • Removal of 550,000 cubic yards of material over a 5-7 year period of operation.
  • Increased volume of traffic and size of vehicles due to truck transportation of raw extracted materials from the site to the existing mine 2.5 miles away for processing. Trucks hauling from the mine will be primarily dump trailers that have a capacity of about 33 tons each, hauling at a maximum rate of 30 to 40 round trips per day.
  • Noise impacts from operation of a mechanical hammer, excavator, front end loader and trucks on site.
  • Noise impacts from additional truck traffic along local roads.
  • Public safety concerns along roads due to additional truck traffic.
  • Visual impacts due to changes in topography of the site.
  • Impacts from fugitive dust.
  • Possible presence of a threatened species - Timber Rattlesnake (Crotalus horridus), known to exist within 1.5 miles of the project area.
  • Impacts associated with stormwater runoff.

Direct construction-related impacts such as heavy-vehicle traffic, land clearing, equipment operation, and noise are indeed primarily local impacts. Public safety concerns along town roads due to additional truck traffic would also qualify as a local impact. Possible threats to groundwater are impacts of local and regional significance. The possible taking of a threatened species (the Timber rattlesnake) would be an impact of regional to Statewide significance

The regulations require me to designate a local agency as lead where the impacts from a proposed action are primarily local and there are no other overriding considerations. In this case, impacts have been identified that are primarily local, as well as regional to Statewide. Thus, consideration of the first criterion does not provide me with a basis to choose the local agency.

B. Second Criterion

The second criterion is the breadth of authority to conduct the environmental review. The New York State Legislature has granted NYSDEC exclusive authority in the MLRL to regulate all aspects of the project related to mining and reclamation. The MLRL clearly supersedes other state and local laws relating to the extractive mining industry, with the exceptions noted below in the Town authority discussion. Among the many duties granted the NYSDEC under the MLRL are issuing mining permits, administering and enforcing provisions of the MLRL, establishing environmental standards and criteria for mining reclamation, deciding violations of the MLRL and ordering the immediate suspension of mining or reclamation operations whenever such operations are being carried out in violation of the MLRL or rules, regulations and orders adopted pursuant to it. While NYSDEC must incorporate into its permit conditions those recommendations by the Town that are found to be reasonable, or provide a written explanation to the local government if any or part of the recommendations are not incorporated, the ultimate jurisdiction regarding mining and reclamation under the MLRL remains with NYSDEC. In addition to the MLRL, the applicant will be subject to Stormwater SPDES permitting and a possible Threatened and Endangered Species taking permit, both of which fall within NYSDEC's jurisdiction.
In contrast, the Town has described its special use permit jurisdiction as covering the approval of the proposed mine for use in the R-1 zone and authority to consider, investigate and address identified local impacts related to local road usage and other impacts not superseded by the MLRL. Under ECL §23-2703, once a municipality decides to issue a special use permit for a mine, the MLRL restricts the conditions that can be placed on such a permit to the following:
"...(i) ingress and egress to public thoroughfares controlled by the local government;
(ii) routing of mineral transport vehicles on roads controlled by the local government;
(iii) requirements and conditions as specified in the permit issued by the department under this title concerning setback from property boundaries and public thoroughfare rights-of-way
natural or man-made barriers to restrict access, if required, dust control and hours of operation when such requirements and conditions are established pursuant to ... [the MLRL]; [and]
(iv) enforcement of reclamation requirements contained in mined land reclamation permits issued by the state..."

While the Town of Rochester's zoning law provides for the imposition of such conditions through its special use permit jurisdiction, the breadth of NYSDEC's jurisdiction under the MLRL is still superior to the Town's authority under its existing zoning law.3

C. Third Criterion
The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action. I find that both agencies possess, or could obtain through consultants, the expertise to conduct a thorough environmental review. However, NYSDEC staff has considerable experience in the review of mining and mined land reclamation plans throughout the region, as well as expertise in the review of habitat, wildlife and threatened and endangered species needs. This extensive experience affords NYSDEC a greater capacity to undertake the most thorough environmental assessment of this project.

Finding

Based on NYSDEC's broader jurisdiction under MLRL, plus its greater experience in the review of mining applications, as well as regionally significant issues related to threatened and endangered species, I find that the NYSDEC, through its Region 3 Office, should serve as the lead agency for the environmental review of the proposed Mombaccus Excavating, Inc. Amanda Drive Bluestone Quarry.
This designation neither changes nor diminishes the responsibilities or authority of the Town and its jurisdiction over the project. The applicant must, prior to commencing the action, still receive a special use permit from the Town. I strongly encourage the Town 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 grant or deny its permit.
I must advise NYSDEC to take full notice of the potential local and regional impacts that have been identified during this lead agency decision dispute, or may be identified during the course of the environmental review. Since the Town indicated in its filings that it has serious concerns for traffic flow and movement of materials between the proposed Amanda Drive site and the MEI Site off Chester Town Road, NYSDEC should actively involve the Town in its consideration of those issues.

________________________

1Under Town Law §274-b, a special use permit is an "...authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met."

2See Town of Rochester Code, Chapter 140, Zoning Schedule, and §140-36.

3Under Town Law §274-b, the Town's discretion to condition or deny special use permits is limited by the rule of law which provides that specification of a use as a special use constitutes a legislative finding that a use is in harmony with the community's general zoning plan and will not adversely affect the neighborhood unless the Planning Board finds that the use is undesirable at the particular location pursuant to applicable criteria. See Retail Property Trust v. Zoning Board of Appeals of the Town of North Hempstead, 98 N.Y.2d 190 (2002).



Dated: 3/11/09

/s/

Alexander B. Grannis, Commissioner
Albany, New York



Distribution of Copies

Disputing Parties

Melvyn I. Tapper
Chairman, Town of Rochester Town Board

Mary Lou Christiana, Esq.
(attorney for Town of Rochester)

Region 3, NYS Department of Environmental Conservation
Attention: Willie Janeway, Regional Director

Applicant / Agencies

Carl Chipman, Supervisor
Town of Rochester

Kevin Kortright, Mombaccus Excavating

Andrew W. Gilchrist, attorney for applicant

New York State Department of Health

Region 3, NYS Department of Environmental Conservation
Attention: Margaret Duke, Regional Permit Administrator

John W. Petronella, Environmental Analyst
NYS DEC, Region 3

New York State Department of Environmental Conservation

Lawrence H. Weintraub, Esq., Office of General Counsel
Betty Ann Hughes, Division of Environmental Permits

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