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Town of Grafton Planning Board v. Department of Environmental Conservation, Region 4 Office

Project: Grafton Quarry Mine Expansion, Town of Grafton, Rensselaer County

Disputing Agencies: Planning Board of the Town of Grafton 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 the RJ Valente Gravel, Inc. Grafton Quarry. The disputing agencies are the Planning Board of the Town of Grafton (Planning Board) and the New York State Department of Environmental Conservation (NYSDEC or 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, most notably its authority under the Mined Land Reclamation Law (MLRL; ECL §23-2701 et seq.), and the fact that NYSDEC 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 RJ Valente Gravel, Inc. (applicant) to expand the Grafton Quarry permitted life of mine (LOM)1 from 75 acres to a new LOM of 90 acres and to increase the depth of the mine by 100 feet. The project is located at 3349 NYS Route 2, in the Town of Grafton, approximately 0.67 miles northeast of the hamlet of Cropseyville. The proposed action also includes changes in the approved hours of operation. The current approved hours of operation are 6:30 a.m. to 6:30 p.m. Monday through Friday and 7:30 a.m. to 4:30 p.m on Saturday. The applicant also proposes to extend the hours of truck loading only to 5:30 a.m. to 7:30 p.m. Monday through Friday and 6:00 a.m. to 4:30 p.m. on Saturday.

This original permitted mine was the subject of a lead agency determination on June 5, 1996. In that dispute, the Commissioner designated the Department through its Region 4 as lead agency (see Commissioner's Lead Agency Decision Town of Grafton Planning Board v. NYS DEC, Region 4 [June 5, 1996], available on the Department's website at http://www.dec.ny.gov/permits/25079.html).

The original quarry application in 1996 was also the subject of a Stipulation of Settlement and Discontinuance between the applicant and the Town Board of the Town of Grafton and the Planning Board, which was so ordered by the Supreme Court, County of Rensselaer (Hon. James B. Canfield) on June 24, 1997. As part of the stipulation, the parties agreed to a set of operational conditions, which the Town retains authority to enforce. The conditions include ones related to blasting, emissions of fugitive dust, truck traffic, hours of operation, and compiling of baseline data on private wells within one-half mile of the quarry.2

Regulatory Setting

The Planning Board and NYSDEC staff describe their respective jurisdictions3 as follows: The Planning Board has 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 applicant also possesses a State Air Facility registration pursuant to 6 NYCRR Part 201 and NYSDEC State Pollution Discharge Elimination System (SPDES) permit for industrial discharge pursuant to Article 17 of the Environmental Conservation Law for the overall mine. In addition, the SEQR Full Environmental Assessment Form prepared by the applicant for this action identifies the need to obtain a Water Quality Certification pursuant to Section 401 of the Clean Water Act.

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.

Both the Planning Board and the NYSDEC have identified dust, noise, and traffic as the primary potential impacts that may occur as a result of this expansion. The disputing agencies agree that these impacts are local in nature.

The applicant asserts, however, that the impacts are primarily of both local and regional significance. In so doing, the applicant states that truck traffic from the mine will utilize NY State Route 2 (a State highway) and that a protected trout stream (Class A) flows along the north side of the quarry.

Although the protected trout stream is a resource of regional or statewide significance, it is actually not in the immediate vicinity of the proposed expansion and therefore not relevant to this discussion. In addition, no increase in daily truck traffic from current activities has been identified as part of this quarry expansion. Therefore, the extent to which new traffic impacts may occur remains to be determined in the SEQR review.

Based on the foregoing, I conclude that the potential impacts associated with this project are primarily of local significance.

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 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 site plan review.4 The Planning Board's power under its site plan review jurisdictions is, however, 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 duties granted NYSDEC under the MLRL are the following: issuance of mining permits, administration and enforcement of 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 NYSDEC 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 under its site plan review authority as limited by the MLRL and taking into consideration the 1996 stipulation 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.

Both the Planning Board and NYSDEC are familiar with the mine and its potential impacts. The Planning Board has identified its capabilities to include a municipal engineer and sufficient personnel to provide an assessment of the current project.

NYSDEC, on the other hand, 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 for this quarry in 1996 and was designated lead agency at that time. NYSDEC staff has vast experience in the review of mining applications. Due to NYSDEC's in-house specific expertise in environmental impact of mines and the fact that it has served as lead agency for the original mine, this third criterion 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 Grafton Quarry expansion project. This decision is based on the conclusion that NYSDEC has the broadest authority to carry out the SEQR review through its jurisdiction under the MLRL and NYSDEC has the greater capability to provide a thorough environmental assessment of the proposed action. These two factors outweigh the fact that the impacts from the proposed mine expansion are primarily of local significance.

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, nor does it affect any jurisdictions or approvals the Town may still have from the 1997 court ordered agreement. In designating NYSDEC as lead agency, I remind it to remain aware of any 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: 4/5/2014
/s/ Joseph J. Martens, Commissioner
Albany, New York

------------------------------------
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 The applicant also agreed to provide the Town with 500 tons of processed material from the mine for a period of ten consecutive years and $2,500 per year for a period of ten consecutive years that would be directed to a fund dedicated to environmental mitigation or benefits projects.
3 See correspondence from the NYSDEC, dated January 9, 2014 and the Planning Board (through the law firm of Girvin & Ferlazzo, PC), dated January 10, 2014.
4 Site plan approval is a regulatory technique requiring municipal approval of the layout and design of development on a single parcel of land (see Town Law §274-a).


Distribution of Copies:

Disputing Parties
Salvatore Ferlazzo, Girvin & Ferlazzo, PC, representing the Planning Board of the Town of Grafton
NYSDEC Region 4 Office, Division of Environmental Permits, Attn: William J. Clarke, Regional Permit Administrator

Applicant
Roderick Valente,, RJ Valente Gravel Inc.
Griggs-Lang Consulting Geologists

Involved / Interested Parties
Frank Higgins, Supervisor, Town of Grafton

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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