Declaratory Ruling 23-11: Shott Rock, Inc. and Gilbert S. Shott
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Petition of
Shott Rock, Inc. and Gilbert S. Shott
for a Declaratory Ruling
Kevin M. Bernstein, Esq.
Bond, Schoneck & King, LLP
One Lincoln Center
Syracuse, New York 13202-0121
Dear Mr. Bernstein:
This replies to the Petition for a Declaratory Ruling submitted on behalf of your clients, Shott Rock, Inc. and Gilbert S. Shott ("Petitioners" or "Shott Rock"). The Petition was initially submitted on February 15, 2002, as supplemented by March 7, 2002, and May 6, 2002, submissions. Furthermore, to assist the Department of Environmental Conservation ("Department") in the analysis of the site in question, a November 21, 2002 site visit was held between Petitioners and Department representatives. Petitioners seek a ruling that, under the Mined Land Reclamation Law ("MLRL"), Environmental Conservation Law ("ECL") Article 23, Title 27, a Mined Land Reclamation ("MLR") permit from the Department of Environmental Conservation ("Department") is not required for the removal of pallets of bluestone and stockpiles of bluestone since the removal of the bluestone will not involve "extraction" of "minerals" from the ground. Thank you for your patience in this matter.
Your request is governed by the provisions set forth under Section 204 of the State Administrative Procedure Act ("SAPA") and Part 619 of the Official Compilation of Codes, Rules, and Regulations of the State of New York. The applicable regulations governing petitions for declaratory rulings provide discretion to the Department in its determination whether to issue a declaratory ruling.
The provisions under SAPA §204 authorizes agencies to issue declaratory rulings. The decision to do so is at the discretion of the agency:
On petition of any person, an agency may issue a declaratory ruling with respect to (i) the applicability to any person, property, or state of facts of any rule or statute enforceable by it, or (ii) whether any action by it should be taken pursuant to a rule. (SAPA §204).
The Department's regulations also provide that the Department may decline to issue a declaratory ruling if the petition does not raise a question of the applicability of any regulation or statute enforceable by the Department; the petition raises issues which are...the subject of Department review pursuant to an application for a permit...; or the declaratory ruling is an inappropriate means of resolving the issues raised in the petition [6 NYCRR §619.3(a), (b), and (d)].
Petitioners request a ruling determining the applicability of the definition of "mining" as that term is defined under the MLRL in relationship to Shott Rock's proposal to remove already palletized bluestone and stockpiled bluestone located at a proposed mine site located in the Town of Saugerties, Ulster County, New York. At issue here is whether a MLR permit should be required in relation to the removal of the bluestone.(1)
Shott Rock submitted a MLR permit application to the Department, dated May 30, 2001, describing its mining proposal as involving the extraction and processing of minerals on property owned by Petitioners, located in the Town of Saugerties, Ulster County. A revised Mined Land Use Plan submitted to the Department by Shott Rock, dated March 11, 2002, describes the proposed mine site as a 25.5-acre Total Affected Area boundary of which 20.2 acres would be excavated within a 45 acre parcel owned by Mr. Shott. A draft Environmental Impact Statement, dated October 7, 2002, describes the existing site conditions as "spoil piles and rubble from previous unreclaimed mining activities" and that the current site owner has palletized some of the remnant bluestone material onsite (DEIS, page 13).
The proposed mine is located within the Town of Saugerties. Pursuant to the Town of Saugerties Local Law No. 3 of 2001 mining is prohibited in residential zones in the Town of Saugerties. A notice of appeal to the Appellate Division, Third Department, from the Judgment of the Supreme Court, Ulster County (Honorable Vincent G. Bradley) (Shott, et al. v. Town of Saugerties, et al.) rendered in a combined Article 78 Proceeding/Declaratory Judgment Action on November 6, 2002, was filed on November 22, 2002. The Judgment of the Supreme Court, in part, upheld the residential zoning districts. The Department's guidance policy provides that DEC will continue to process mining applications based upon the Applicant's assertion that mining is not prohibited by local law at the proposed mine location. Shott Rock's May 2001 MLR permit application to the Department provides such an assertion.
For the purposes of this determination, the pertinent facts as submitted in the petition and exhibits are assumed to be correct. As stated above, the MLR permit application is the subject of Department review pursuant to the regulatory requirements of the MLRL. The operation of the proposed mine site cannot commence unless and until a MLR permit authorizing such activity is issued.
Mined Land Reclamation Law
The relevant provisions under ECL §23-2711(1) and its implementing regulations, 6 NYCRR Parts 420-425, require a Department MLR permit for "any person who mines or proposes to mine from each mine site more than one thousand (1,000) tons or seven hundred fifty (750) cubic yards...of minerals from the earth within twelve (12) successive calendar months..." ECL §23-2705(5) defines a "mine" as any excavation from which a mineral is produced for sale or exchange or for commercial, industrial or municipal use and all lands included in the Department's life of mine review.
Subdivision 8 of ECL §23-2705 provides:
'Mining' means the extraction of overburden and minerals from the earth; the preparation and processing of minerals, including any activities or processes or parts thereof for the extraction or removal of minerals from their original location and the preparation, washing, cleaning, crushing, stockpiling or other processing of minerals at the mine location so as to make them suitable for commercial, industrial, or construction use; exclusive of manufacturing processes, at the mine location; the removal of such materials through sale or exchange, or for commercial, industrial or municipal use; and the disposition of overburden, tailings and waste at the mine location. 'Mining' shall not include the excavation, removal and disposition of minerals from construction projects, exclusive of the creation of water bodies, or excavations in aid of agricultural activities.
Relying upon the statutory provisions previously cited, a MLR permit is required for an excavation and associated activities that meet the definition of mining and that exceed the regulatory thresholds requiring a mining permit. Therefore, if the amount of material mined is above the threshold, a permit is required for the mine site and any "preparation, washing, cleaning, crushing, stockpiling or other processing of minerals at the mine location" would be subject to the permit requirements.
The statewide regulatory program highlights the primary purpose and intent of the MLRL, which is to ensure that there is reclamation of mined lands, as well as requiring mining activity in a manner that prevents pollution and protects the health, safety, and general welfare of the people, as well as the natural beauty and aesthetic values in the affected area of the state. ECL §23-2703(1). The determination of whether a certain activity constitutes "mining" requires an evaluation of an applicant's overall mining and reclamation plan to ensure that the goals of the MLRL are met.
The Department may require other permits for the facility, such as air permits or permits for water discharges. Additionally, it remains incumbent upon the mine operator of the facility to comply with the provisions of any other applicable state and local laws. Whether and to what extent local laws or ordinances may implicate the proposed mining facility requires an interpretation of the local law and, as such, is beyond the scope of the State Administrative Procedures Act §204 and 6 NYCRR Part 619, and is properly left to the local government entity and the Courts.
State Environmental Quality Review Act
The permit application, a proposed aggregate mine, requires the Department to conduct a SEQR review. See ECL §8-0101, et. seq. The Department must conduct a SEQR review prior to issuing the permit to the applicant. Id. The SEQR regulations provide that a "project sponsor may not commence any physical alteration related to an action until the provisions of SEQR have been complied with." (Emphasis added) 6 NYCRR §617.3(a). The 1987 Amendments to the SEQR regulations "... prohibited a project sponsor from commencing physical alteration until SEQRA was complied with." Gerrard, Ruzow, and Weinberg, Environmental Impact Review in New York, vol. 1, §3.01[h], citing 6 NYCRR §617.3(a).
The term "physical alteration" is defined by the SEQR regulations as including, "... but is not limited to, the following activities: vegetation removal, demolition, stockpiling materials, grading and other forms of earthwork, dumping, filling or depositing, discharges to air or water, excavation or trenching, application of pesticides, herbicides, or other chemicals, application of sewage sludge, dredging, flooding, draining or dewatering, paving, construction of buildings, structures or facilities, and extraction, injection or recharge of resources below ground." 6 NYCRR §617.2(ab). Materials which have already been processed and prepared for removal do not fit the definition of "physical alteration."
- A Mined Land Reclamation Permit is Not Required for Removal of Palletized Bluestone
This petition involves a number of unique circumstances. First, mining activity had been conducted on this property from the early 1900s to approximately 1930 (see, Petition ¶12). Second, the removal of already palletized bluestone will not alter the natural topography of the property; no excavation is required to remove this material (see, Supplemental letter dated May 6, 2002, p. 4, ¶3). Third, the removal of previously palletized bluestone can be done in an environmentally sensitive manner and Petitioner is willing to submit to oversight by DEC Staff (See, Petition ¶49). Further, the palletized bluestone represents the end product which resulted from mining activities which occurred prior to the enactment of the MLRL in 1975 or at a rate of less than the statutory threshold under the MLRL [see, ECL 23-2711(1)]. Finally, a final DEC determination regarding Shott Rock's pending MLR permit application is under DEC Region 3's review at the present time.
From the perspective of the Petitioners, the removal of the pallets and the activities associated with preparing the stockpiled bluestone should be viewed as one proposal. However, the documentation provided by Petitioners in support of its request for a Declaratory Ruling seeking an exemption from the MLR permit requirements fails to support its position that removal of pallets and removal of stockpiles are the same activities. While the Petitioners' submission generally discusses the benefits of removing the pallets and stockpiles, the documentation is inadequate in concluding that both activities should be viewed from the same perspective.
In determining whether a MLR permit is required, the Department evaluates whether the factual situation presented accomplishes the statutory environmental objectives of the MLRL. Based on the facts presented, the reclamation objective of the MLRL is inherent by the removal of the palletized bluestone. The documentation presented by Petitioners describes the number of pallets on the site; the size of the pallets; and the length of time for removal of the pallets. To the extent that the Petitioners' removal of the pallets is not an excavation and does not require processing or stockpiling in association with mining, and accomplishes the basic statutory environmental objectives of the MLRL, a mining permit is not required.
Unlike Petitioners' submissions and discussions regarding removal of the pallets, the submissions regarding the stockpiles do not support the conclusion that this activity is exempt from the Department's review regarding Shott Rock's pending MLR permit application.
- The Removal of Palletized Bluestone Is Not Prohibited by the Need for a SEQRA Review Related to the Pending MLR Permit Application
Under SEQR the germane issue at hand is whether the removal of said palletized bluestone is considered an activity that is related to the pending aggregate mine application before the Department.
The Petition asserts that the application before the Department does not include the removal of the previously excavated bluestone material on pallets. See Petition, ¶¶ 3, 4 & 10. Assuming the facts presented in the petition to be correct, the action of removing the previously palletized bluestone material is not related to the Department's review of the pending application for the aggregate mine. In State of New York v. Sour Mountain Realty, Inc. (183 Misc2d 313, 703 NYS2d 854 (Sup. Ct, Dutchess Co. Mar. 30, 1999) (affirmed, 276 AD2d 8, 714 NYS2d 78 (2d Dept 2000)), the State sought a preliminary injunction to prevent defendant Sour Mountain from erecting a boundary fence on its property that would affect the normal migration and movement of timber rattlesnakes found in the vicinity of the property. The Court denied the issuance of the preliminary injunction on the basis that the erection of the fence was not a physical alteration that was related to the action at issue. Id. at 326.
The Sour Mountain decision made a distinction between placing the fence at the boundary of the property (actual) from constructing the fence around the mine site. The application in the Sour Mountain case made no reference to a fence on the property boundary. In the instant case, because removal of the pallets is not an excavation and does not require processing or stockpiling in association with mining, and accomplishes the basic statutory environmental objectives of the MLRL, a mining permit is not required. Further, the removal of the previously excavated bluestone material on pallets is not captured within the pending application before the Department.
For the reasons set forth above, and as limited to the distinct facts presented in this case and the totality of circumstances, as confined by the Petition and Exhibits, the removal of palletized bluestone at this site is not subject to the requirements of the MLRL. I note that the reclamation objective of the MLRL is inherent by the removal of the palletized material. It remains incumbent upon Petitioners to accomplish this activity in an environmentally sensitive manner and in compliance with applicable laws and regulations. The issues raised in this petition regarding removal of the stockpiles may be addressed in the pending MLR permit proceedings. Accordingly, I decline to issue a declaratory ruling in relation to the removal of the stockpiled bluestone pursuant to 6 NYCRR §§619.3(a), (b), and (d).
Furthermore, this determination relates only to and is specific to this Petition and is not intended to establish any Department precedent or be relied upon in any other matter outside this Petition.
Please let me know if you have any questions with respect to this opinion.
James H. Ferreira
James H. Ferreira
Deputy Commissioner and General Counsel
Dated: Albany, New York
April 18, 2003
1. During the pendency of review of the instant Petition, in a letter dated March 12, 2002, a request for a declaratory ruling was submitted on behalf of Citizens' Action for Residential Environments of Saugerties ("CARES") by its attorney, March Gallagher. That request has been reviewed, together with all the documents previously received from Petitioners. In light of the instant Ruling resolving the matter of Shott Rock, a separate ruling on CARES' request is not necessary.