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Town of LaGrange Planning Board v. Department of Environmental Conservation Region 3

Project: Ryan's Gravel Bank Mine Haul Road, Town of LaGrange, Dutchess County

Disputing Agencies: Planning Board of the Town of LaGrange and the New York State Department of Environmental Conservation, through its Region 3 Office

I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State 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]). The request has been made, in the context of a SEQR review, for a proposed new haul road and exit for mine traffic associated with Ryan's Gravel Bank. The disputing agencies are the Planning Board of the Town of LaGrange (Planning Board) and the New York State Department of Environmental Conservation (NYSDEC), through its Region 3 Office. This designation of NYSDEC is based on the agency's comparatively broader jurisdiction under the Mined Land Reclamation Law (MLRL; ECL §23-2701 et seq.), Protection of Waters (ECL Article 15) and Freshwater Wetlands Act (ECL Article 24) programs and NYSDEC's greater capability for providing the most thorough environmental assessment.

Action and Site

The proposed action involves an application by Richard Ryan Excavation, Inc. (Ryan Excavation) to construct a new haul road. The road is intended to provide an additional access for mine truck traffic from an operating sand and gravel mine directly onto New York State Route 82. Ryan Excavation has proposed to continue its use of the existing mine haul route along Ryandale Drive for truck ingress. The project location is on the west side of Route 82, one mile north of Route 55, crossing through an 18 acre parcel adjacent to the existing mine.

Regulatory Setting

Work has already been completed for part of this project including placement of driveway foundation material, fill over an historic gravel driveway, and installation of two 24" culverts. NYSDEC staff found this work to be in violation of the ECL,1 and issued a notice of violation to Ryan Excavation on December 28, 2011. Ryan Excavation was instructed to apply for a modification to its Mined Land Reclamation Law (MLRL) permit, as well as an Article 24 Freshwater Wetlands permit and an Article 15 Protection of Waters permit. The project sponsor should not gain any regulatory benefit from having begun construction of the road without the required permits. Any environmental analysis of the road must assume that construction has yet to begin.

Work still to be done on this road includes installation of an additional, larger culvert to improve habitat connectivity, grading of road shoulders and final stabilization.

Correspondence from the Town of LaGrange, dated March 1, 2012 (with attachments) and NYSDEC, dated December 16, 2010 and February 1, 2010, describe the Planning Board's and NYSDEC's respective regulatory jurisdictions as follows:

  • The Planning Board2
    • Site plan approval;
    • Approval for construction of the road through a wetland - the Town of LaGrange has a town code regulating wetlands and water courses; and
    • The Town of La Grange is also an approved Municipal Separate Storm Sewer System (MS4) community and as such is authorized to review and accept the construction stormwater pollution prevention plan (SWPPP) pursuant to the Department's Multi-Sector General Permit (GP) 0-11-009,3 which provides the town with a ministerial jurisdiction.
  • NYSDEC
    • MLRL jurisdiction(ECL Article 23) involving a permit(modification)for haul road construction associated with an existing permitted mining activities(see ECL §23-2703);
    • Freshwater Wetlands Act jurisdiction (ECL Article 24) requiring a permit for an activity affecting a regulated wetland (State Freshwater Wetland PV-25);
    • Protection of Waters (ECL Article 15) jurisdiction requiring a stream disturbance permit based on potential activities affecting a sub-tributary of Sprout Creek (ECL §15-1525);
    • Jurisdiction under the State Pollution Discharge Elimination System ("SPDES"; Title 8 of ECL Article 17) involving review of an individual Industrial State Pollutant Discharge Elimination System (SPDES)permit;
    • Jurisdiction under SPDES for stormwater (modification);
    • Water Quality Certification jurisdiction under Section 401 of the Federal Water Pollution Control Act;
    • Review for potential jurisdiction under Article 11 of the ECL for Take of Threatened and Endangered Species (Blanding's Turtle and Indiana Bat) Permit.

The role of lead agency for a SEQR review may only be assumed by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. Both the Planning Board and NYSDEC appear to satisfy the criteria to be considered involved agencies, and both stated their interest in serving in that role. No other involved agencies have sought lead agency status or commented on the request for lead agency designation.

Discussion

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

  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.

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.

Construction related impacts from grading and stabilization will be from noise, traffic, dust, and stormwater runoff. Operating impacts are likely restricted to visual changes and traffic. Use of this new road may remove some mining truck traffic from a small residential neighborhood along Ryandale Drive. However, as proposed, this project will not completely eliminate use of Ryandale Drive by heavy mining truck traffic.

Impacts may also occur to wildlife, local and state wetlands, and to a sub-tributary of Sprout Creek [Class C(TS)], a protected stream. In addition, the NYSDEC has identified potential impacts to NYS listed species (Blanding's turtle and Indiana Bat).

In the case at hand involving only an additional road, such impacts implicate primarily local concerns.

The lead agency criteria (6 NYCRR 617.6[b][5][v]) provide that when impacts are primarily local in significance, all other considerations being equal, the local agency involved will be lead agency. While the first criterion favors the selection of the Town of LaGrange Planning Board as lead agency, all other considerations do not appear to be equal so I must examine the remaining criteria.

B. Second Criterion
The second criterion asks which agency has the broadest governmental powers for investigation of the impacts of the proposed action.

The Planning Board has powers of investigation through its local wetlands law and site plan review. It also has powers of investigation related to stormwater management through its authority to review and accept the applicant's SWPPP. As pointed out above, the Planning Board's SWPPP authority is a ministerial jurisdiction - limited to determining whether the applicant's SWPPP is in compliance with the NYSDEC's Multi-Sector General Permit.

NYSDEC has the capacity to investigate the impacts of the haul road through its jurisdiction under MLRL permit program. In addition to the MLRL, the applicant will be subject to NYSDEC Protection of Waters and Freshwater Wetlands permits. The applicant may also be required to obtain a permit under 6 NYCRR Part 182, Threatened and Endangered Species taking permit.

Under the MLRL, NYSDEC has exclusive authority to regulate all aspects of the project related to mining and reclamation. The MLRL supersedes other state and local laws relating to the extractive mining industry, with the exception that (under ECL §23-2703) local governments may regulate mining activity in the following areas:

  • (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.

Among the many duties granted NYSDEC under the MLRL are the following: issuing mining permits, administering and enforcing provisions of the MLRL, establishing environmental standards and criteria for mine 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. This new haul road will be part of the overall mining operation at this facility and thus subject to full compliance with the MLRL.

Under MLRL §23-2711, NYSDEC must incorporate into its permit conditions recommendations by the Town's Chief Administrative Officer that are found to be necessary and reasonable, regarding man-made or natural barriers to restrict access to the site, dust control, setbacks, and hours of operation. The Department must accept such recommendations or provide a written explanation to the local government as to why such recommendations are not incorporated. Nonetheless, the ultimate jurisdiction regarding mining and reclamation under the MLRL remains with the NYSDEC subject to local input.

Historically, lead agency disputes that involve mine expansions have been decided in favor of NYSDEC.4 In this case, the modification for the MLRL is limited to the addition of a road and as a result the distinction between MLRL authority and local authority is arguably less stark. Nonetheless, the breadth of NYSDEC's jurisdiction under the MLRL together with its other permit jurisdictions for this action is broader than the Planning Board's jurisdictions as described above. The second criterion strongly favors NYSDEC.

C. Third Criterion
The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action.

According to the Planning Board, the Town's Administrator of Public Works is versed in the identification and assessment of environmental impacts. In addition, that office is also supported by professional engineering firms who are presumably versed in stormwater management and construction related issues. The NYSDEC has a staff of professionals with unique expertise in mining, wetland, and water resource protection, including stormwater controls. Therefore, while both disputing parties are capable of conducting the SEQR review for a project of this size and type, NYSDEC has greater capability because most of the potential issues regarding the road relate to NYSDEC's core jurisdictions and the fact that NYSDEC has a dedicated staff of in-house professionals with expertise in those areas.

Finding

I find that NYSDEC, through its Region 3 Office, should serve as lead agency for the SEQR review of the proposed Ryan Mine haul road project because NYSDEC has the broadest authority to carry out the SEQR review based on its jurisdictions under the MLRL, Protection of Waters, and Freshwater Wetland Act and its greater capability for providing the most thorough environmental assessment of the proposed action.

This designation in no way changes or diminishes the responsibilities or authority of the Planning Board or other involved agencies with jurisdiction over the project. While designating NYSDEC as lead agency, I must remind it to remain aware of all potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. In developing the record through the SEQR process, I am directing NYSDEC staff to ensure that the Town's concerns through the ECL §23-2711 process, if any, are factored into the environmental review process.

-----------------------------------------

1 Violations were for deviation from the approved Mined Land Use Plan to construct a new ingress and egress to the mine facility, for placement of fill within 100 feet of New York State Freshwater Wetlands (FWW) (PV-25) and for excavation and installation of culverts in a sub tributary of Sprout Creek, Class C(TS).

2 The proposed project involves use of a residential parcel (R-120 zoning) for a commercial driveway, which, according to the Town Planning Board, is not an allowed use. Presumably, as such, construction of the road requires a use variance from the Town's Zoning Board of Appeals.

3 See http://www.dec.ny.gov/chemical/9009.html.

4 See, e.g., Commissioner's lead agency decision in Town of Mamakating Planning Board v. NYSDEC, through its Region 3 Office, June 27, 2001; Commissioner's lead agency decision in Town of Poestenkill Planning Board v. NYSDEC, through its Region 4 Office, June 9, 2003; and, Commissioner's lead agency decision in Town Board, Town of Smithtown v. NYSDEC, through its Region 1 Office, August 25, 2004. Commissioner lead agency decisions are available on the Department's website at the following address: http://www.dec.ny.gov/permits/6186.html

Dated: 8/23/2012

/s/ Joseph J. Martens, Commissioner
Albany, New York

Distribution of Copies:
Disputing Parties

Jon Wagner, Supervisor, Town of LaGrange
NYSDEC Region 3 Office, Division of Environmental Permits, Attn: Daniel Whitehead, Acting Regional Permit Administrator

Applicant
Richard Ryan, Ryan Excavation, Inc.

Involved Parties
Town of LaGrange Planning Board, Att'n: Alan Bell, Chair
Town of LaGrange Department of Public Works, Att'n: Wanda Livigni, Administrator
Rebecca Valk, Town Attorney, Town of LaGrange

New York State Department of Environmental Conservation
Lawrence H. Weintraub, Esq., Assistant Counsel, Office of General Counsel, Central Office
Robert L. Ewing, Division of Environmental Permits, Central Office

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