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Town of Schaghticoke Planning Board v. DEC Region 4 Office

Project: West Wind Farms Czub Mine Expansion, Town of Schaghticoke, Rensselaer County

Disputing Agencies: Planning Board of the Town of Schaghticoke and the New York State Department of Environmental Conservation, through its Region 4 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 mine expansion associated with West Wind Farms' Czub Mine. The disputing agencies are the Planning Board of the Town of Schaghticoke (Planning Board) and the New York State Department of Environmental Conservation (NYSDEC or the Department), through its Region 4 Office.

This designation of NYSDEC, through its Region 4 office, to serve as lead agency for the SEQR review of this project, is based on NYSDEC's comparatively broader jurisdiction under the Mined Land Reclamation Law (MLRL; ECL §23-2701 et seq.); NYSDEC also has the greater capability for providing the most thorough environmental assessment of the proposed action.

Action And Site

The proposed action involves an application by Czub Sand and Gravel / West Wind Farms (West Wind Farms) to expand the Czub Mine permitted life of mine (LOM)1 from 8.62+/- acres to a new LOM of 110.47+/-. The project is located in the Town of Schaghticoke, on Verbeck Avenue, northwest of the Elmwood Cemetery and approximately one mile northwest of the intersection of County Highway 125 and Verbeck Avenue.

Regulatory Setting

Correspondence from the Town of Schaghticoke, dated February 11, 2013, and NYSDEC, dated February 26, 2013, describe the Planning Board's and NYSDEC's respective regulatory jurisdictions as follows: The Planning Board has special use permit and site plan approval; NYSDEC has jurisdiction over the proposed mine expansion under the Mined Land Reclamation Law pursuant to section 23-2703 of the Environmental Conservation Law.

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. 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 is based solely on application of these criteria to the facts of each case.

A. First Criterion

The first criterion asks whether the potential impacts from the proposed action are of local, regional or statewide significance.

The Planning Board asserts that impacts will occur to residents of Verbeck Avenue that are typical of a mining operation, namely impacts from dust, noise, traffic, road deterioration, stormwater, and visual. NYSDEC, through its Region 4 office, concurs with the Planning Board and describes the primary impacts as local in significance.

The applicant, on the other hand, asserts that the impacts are primarily of regional significance. In so doing, the applicant asserts that truck traffic from the mine must make use of state roads for deliveries and that a protected trout stream (C[t] stream) that flows to the Hudson River is present on the mine site.

Although the protected trout stream is a resource of regional or statewide significance, I conclude that the potential impacts associated with this project are primarily of local significance.2 The principal impacts from the mine (dust, traffic, noise, and visual) are impacts that will primarily impact town residents. With regard to truck traffic in particular, the mine is expected to generate approximately 15 to 20 one-way trips of truck traffic per day, usually involving tri-axle dump trucks, utilizing trailer or tandem dump styles. The number of expected trips is relatively small and would not affect any resources of regional or state-wide significance such as an historic district or site.

The lead agency criteria (6 NYCRR 617.6[b][5][v]) provide that under this criteria, 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 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 special use permit and site plan review. Special use permits carry with them the presumption that the use is allowed in the applicable zone so long as established conditions set out in the zoning law for the particular use are met. The Planning Board's power under its special use permit and site plan review jurisdictions are limited here by preemption under the MLRL.

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 expansion will be part of the overall mining operation at this facility and thus subject to full compliance with the MLRL. Thus, under the MLRL, NYSDEC has broad authority to investigate the impacts of the mine expansion.

Further, 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.

The breadth of NYSDEC's jurisdiction under the MLRL for this action is broader than the Planning Board's jurisdiction as described above. The second criterion strongly favors NYSDEC through its Region 4 office.

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 Board and the Planning Board have regularly been addressed by residents of Verbeck Avenue regarding the impacts of the existing and now proposed mine expansion. Thus, the Planning Board is arguably familiar with the mine and its potential impacts. The Planning Board anticipates hiring a technical consultant for the review of this project and the Town Attorney has indicated that he will continue to serve in the role of legal advisor on SEQR permitting and other related matters.

On the other hand, NYSDEC has a staff of professionals with unique and long-standing expertise in regulating mining operations, SEQR review and natural resource protection. In addition, NYSDEC through its Region 4 office served as lead agency for the SEQR review of the initial application to mine 8.62 acres (LOM) in 2005 and issued a negative declaration. NYSDEC staff are, therefore, familiar with the site. Due to NYSDEC's in-house expertise and its familiarity with this project, this third criterion also strongly favors NYSDEC through its Region 4 office.

Finding

I find that NYSDEC, through its Region 4 Office, should serve as lead agency for the SEQR review of the proposed Czub Mine expansion project because NYSDEC has the broadest authority to carry out the SEQR review based on its jurisdiction under the MLRL and has greater capability for providing the most thorough environmental assessment of the proposed action. These two factors, combined with the ultimate size of the proposed mining operation, clearly outweigh the fact that the impacts are primarily of local significance.3

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 Planning Board's concerns are given due consideration through the ECL §23-2711 and SEQR processes.

Dated: 5/8/2013

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

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1 The "Life of Mine" or "LOM" area is the total area of land to be mined over the entire period of time that mining is planned to occur at the site. Applicants for Mined Land Reclamation Law permits are required to describe such areas as part of the permitting process so that impacts may be identified and mitigated over the entire period the mine is to be in operation. See St. Lawrence Cement Company, First Interim Decision of the Commissioner, September 8, 2004, page 11, ftn. 12 (December 6, 2002). Normally, within the LOM, mining proceeds in phases. The affected acreage is the area currently impacted by mining activities. The mine operator conducts concurrent reclamation of the previous phase.

2 NYSDEC staff did not identify a need for a permit under ECL Article 15, Title 5 (Protection of Waters permit) to protect this stream from impacts.

3 Although most lead agency determinations between the Department and local governments involving the MLRL have designated the Department as lead agency, there is no categorical rule that I must do so. In appropriate cases, the Commissioner has designated a disputing local government board as lead agency. See Commissioner lead agency determinations in the following cases: Town of Kinderhook Town of Kinderhook v. DEC, Region 4 Office (March 10, 1993); Town of Warwick v. DEC, Region 3 Office (March 10, 1993); Town of Kinderhook v. DEC, Region 3 Office (June 30, 1993); Town of Kinderhook v. DEC, Region 4 Office (May 24, 1994); and Town of Claverack v. DEC, Region 3 Office (Sept. 14, 1994).

Distribution of Copies:

Disputing Parties
Town of Schaghticoke Planning Board, Att'n: Frank Alessandrini, Acting Chair
NYSDEC Region 4 Office, Division of Environmental Permits, Attn: William J. Clarke, Regional Permit Administrator

Applicant
James B. Czub, Czub Sand and Gravel
Terresa M. Bakner, Whiteman Osterman & Hanna,LLP, Counsel for Applicant

Involved / Interested Parties
Jean Carlson, Supervisor, Town of Schaghticoke
David C. Brennan, Town Attorney, Town of Schaghticoke

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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