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Declaratory Ruling 23-12: Pattersonville Environmental Coalition

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Petition of

Pattersonville Environmental Coalition

for a Declaratory Ruling

Introduction

Petitioner, Pattersonville Environmental Coalition, ("Coalition") by its attorney, Peter Henner, has submitted a petition for a Declaratory Ruling dated January 9, 2003 pursuant to State Administrative Procedure Act §204, and 6 NYCRR Part 619. The Coalition asserts that Environmental Conservation Law ("ECL") Article 23, Title 27, requires a Princetown dairy farmer to obtain a mining permit from the Department of Environmental Conservation ("Department" or "DEC") for the removal of material from a three acre site. The dairy farmer, Donald Brooks, seeks to remove rock and overburden from an area adjacent to his existing dairy barn to aid in the construction of a 120 foot long addition to the dairy barn and to clear an area adjacent to the newly constructed barn. Parts of the project would require excavation approaching twenty feet in depth. The Coalition's petition consists of a submission dated January 9, 2003 with enclosures. The Coalition seeks a Declaratory Ruling that the agricultural exemption embedded within the ECL Article 23 definition of "mining" does not exempt Mr. Brook's activity from the Mined Land Reclamation permit requirements.

Background

For the purpose of this Declaratory Ruling, the facts set forth in the petition are assumed to be correct. Accordingly, the binding effect of this Ruling is limited by the assumed factual predicates. Power Authority of the State of New York v. NYSDEC, 58 N.Y.2d 427 (1983).

Mr. Donald Brooks is the owner and operator of a dairy farm in the Town of Princetown, Schenectady County, New York. The dairy farm operates under Concentrated Animal Feeding Operation (CAFO) general permit GP-99-01 issued by the Department. Mr. Brooks intends to expand an existing dairy barn situated on his property by constructing a 120 foot long addition. Mr. Brooks also plans to excavate an area behind the barn estimated at 3.3 acres to cleanup old stockpiles of material and to relocate a small intermittent stream that runs through the area behind the barn. The activity will involve the removal of a vertical layer of 15 to 25 feet of rock. This rock will be removed from the site and presumably will be sold commercially. Mr. Brooks' plans call for the replacement of overburden to depths of five feet after the removal of the rock.

The Coalition seeks a Declaratory Ruling to challenge an oral determination made by a DEC Mined Land Reclamation Specialist that the activities Mr. Brooks proposes to undertake are exempt from the provisions of the Environmental Conservation Law ("ECL") Article 23, Title 27, because the proposed activity constitutes excavation in aid of agricultural activities and is, therefore, not included in the definition of "mining" as that term is defined at ECL §23-2705(8).

The Coalition contends that while the excavation of the area necessary to construct the extension to the existing barn is covered by the agricultural exemption, the removal and presumptive commercial sale of a large quantity of hard rock from a 3.3 acre area does not fall within the agricultural exemption. Further, the Coalition contends that, but for the agricultural exemption, the proposed activities would constitute mining and therefore require a permit from the Department.

Applicable Law

ECL §23-2711(1) provides, in pertinent part, that: "After September first, nineteen hundred ninety-one, any person who mines or proposes to mine from each mine site more than one thousand tons or seven hundred fifty cubic yards, whichever is less, of minerals from the earth within twelve successive calendar months ... shall not engage in such mining unless a permit for such mining operation has been obtained from the Department." 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. The regulations repeat the statutory definition of "mine" [6 NYCRR §420.1(h)]. ECL §§23-2713 and 23-2715 require site specific mining and reclamation plans which depict the potential affected acreage, including but not limited to areas of excavation; areas of topsoil and stockpiles; drainage features and water impoundments; and the status of the land showing the manner in which the affected acreage is to be reclaimed.

The Coalition's request for a Declaratory Ruling requires a close look at the definition of mining. ECL §23-2705(8) defines "mining" as follows: "'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, clearing, 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 excavation in aid of agricultural activities." (Emphasis added). Therefore, while ECL §23-2711(1) requires a MLR permit in order to operate a mine from which more than one thousand tons or seven hundred fifty cubic yards of minerals or overburden are to be extracted from the earth within twelve successive calendar months, this definition of mining carves out excavation that aids agricultural activities.

A review of the policy behind the MLRL is instructive when determining the scope of agricultural exemption. The MLRL states that "... it is the policy of this state to ... provide for the management and planning for the use of these non-renewable natural resources and to provide, in conjunction with such mining operations, for reclamation of affected land; ... to protect 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)]. This policy statement demonstrates that the MLRL's primary purpose is to ensure reclamation of mined lands, and to require that mining activity minimize erosion, sedimentation, dust, noise, water pollution, and visual intrusion. Syragam Realty Corporation, DEC 23-01 (1980).

The longstanding DEC policy governing agricultural exemptions, as detailed in the attachments to Technical Guidance Memorandum #92-2, dated May 4, 1992, entitled, "Activities Exempt from the Mined Land Reclamation Law," invokes the policy behind the MLRL. Each of the following criteria must be met for a project to be exempt from the MLRL:

Excavations or grading undertaken to enhance the agricultural use of lands or to provide for structures or other improvements, including ponds, that benefit or are necessary for agricultural pursuits. The following criteria must be met:

  1. The excavations and/or grading activity must be directly related to enhancements or improvements associated with ongoing or imminent agricultural activity.
  2. A detailed description of the proposed improvements must be submitted to the Department and must include:

    - areas to be affected, provisions for saving all topsoil, plans for seeding and mulching of affected areas and final drainage configurations.

  3. The excavation and restoration of the site must be completed in a 12-month period.
  4. No mineral processing equipment will be allowed.
  5. Agricultural ponds must be of a size that is no larger than that required to meet agricultural needs and must be directly related to agricultural use such as irrigation water source for crops, water for livestock, pond for fish propagation.

The concluding paragraph of the policy guidance provides that "(t)he agricultural exemption will not apply to excavations where the mineral removal and subsequent reclamation does not enhance the agricultural usability or productivity of the land. Proposing to excavate material and reclaim them in a manner that makes them suitable for agricultural use will not be considered exempt from the MLRL."

Discussion

The Coalition's submissions include information regarding the proposal to add barn space to the existing barn; to cleanup old stockpiles of material behind the barn; and to relocate a small intermittent stream describing the need to increase the working space around the barns and to address surface runoff (see, Exhibit No. 1 to Petition, Supplemental letter dated October 10, 2002). The Town Supervisor and Town Code Enforcement Officer, Town of Princetown reviewed the project and find it consistent with that required for agricultural purposes (see, Exhibit Nos. 2 and 3 to Petition, Supplemental letters dated November 20, 2002). Further, the Schenectady County Conservation District reviewed the water quality components of the plan and finds it consistent with the Agricultural Environmental Management plan to help the farm deal with its present silage leachate problem (see, Exhibit No. 4 to Petition, Supplemental letter dated November 22, 2002).

The determination of whether a certain activity constitutes "mining" requires an evaluation of an applicant's overall proposal to ensure that the goals of the MLRL are met. The Coalition contends that Mr. Brooks' proposal includes a number of activities specifically included within the definition of mining, such as the removal of materials through sale and exchange, or for commercial use. The Coalition would argue that the off-site sale or exchange of material alone serves to remove the activity from the agricultural exemption. The coalition cites to Application of Theodore Miller, DEC 23-10, (January 28, 1999) in support of this proposition. Previous Department Declaratory Rulings reviewed the applicability of the statutory exemption for agricultural or construction activities in the context of whether the activities were merely speculative and whether the removal of the minerals benefitted the petitioner. See, Syragam Realty Corporation, DEC 23-01, June 17, 1980, ruling exemption was not applicable where the eventual construction activity was speculative and removal of the minerals benefitted the petitioners; Irvington Union Free School District, DEC 23-04, March 23, 1984, ruling the exemption was applicable since construction of school field would not serve as source of material to serve commercial or municipal need for mineral resources; Matter of Diane and Edward O'Neal, DEC 23-09, November 27, 1996, ruling the exemption was applicable since the material would remain on-site and the construction activity would not benefit petitioners economically from the use of the extracted materials; and Theodore Miller ruling the exemption was not applicable given the size of the project, lack of a definite plan, and ultimate disposition of the product.

The May 4, 1992 MLRL policy document "Activities Exempt from the Mined Land Reclamation Law" section on the agricultural exemption lists the criteria an activity must meet to fall under the agricultural exemption. The policy does not mandate the on-site use of the material extracted nor place a limitation on the final disposition of the material. In contrast, the section on "General Pond Construction" specifically notes that excavated material may not leave the site. The determining factor is the enhancement of the agricultural usability or productivity of the land in question. Where the extraction and removal of material from a site is necessary to forward the objective of the project but has an ancillary benefit - proceeds from the sale of the excavated material - that fact alone should not consume the exemption.

Legislative history indicates that the primary concern in enacting the Mined Land Reclamation Law was to assure the reclamation of mined lands. The Legislative Memorandum in support of the bill submitted by the State's Executive Chamber explains that the purpose of the bill was to "assure that land damaged by mining operations is restored to a reasonably useful and attractive condition." See McKinney's 1974 Session Laws of New York, p.2047-48. The Memorandum explains that "(s)ince the bill is aimed at the regulation of substantial, commercial mining operations, it includes specific provisions exempting non-commercial and relatively minor operators."

The mining statute strikes a careful balance between the potential environmental impacts associated with unregulated mining and the legitimate needs of farmers to enhance ongoing agricultural activities. The agricultural exemption contained in ECL §23-2705(8) and 6 NYCRR §420.1(k), as explained by the Department's mined land reclamation policy, allows excavation only when the excavation enhances or furthers the agricultural use of an agricultural property and results in immediate subsequent agricultural activity on the excavated site. As the Coalition concedes, the excavation necessary to allow construction of the barn fits easily within the agricultural exemption. The real inquiry centers around whether the elimination of stockpiles, the removal of the rock ledge, and the relocation of the intermittent stream enhances or furthers the agricultural use of the property and results in immediate subsequent agricultural activity on the excavated site. The contractor for the dairy farm project states that this work will enhance and improve the efficiency of the operation in that it will: 1) increase working space around the barns and create more usable open space; and 2) control surface runoff by relocating the stream. (see, Exhibit No. 1 to Petition, Supplemental letter dated October 10, 2002). The Town of Princetown has reviewed the project and finds it consistent with that required for agricultural purposes (see, Exhibit Nos. 2 and 3 to Petition, Supplemental letters dated November 20, 2002). The Schenectady County Conservation District has reviewed the plan and expects considerable drainage improvement and believes the proposal will help the farm deal with its present silage leachate problem. (see, Exhibit No. 4 to Petition, Supplemental letter dated November 22, 2002).

There has been an exchange of correspondence between Mr. Brooks and Department staff and I take official notice of that correspondence. Department staff had an opportunity to review correspondence including detailed plans depicting, both narratively and graphically, a protected flat area for livestock to safely enter barn and feeding areas and to congregate while entering these areas and exiting onto pasture areas. Through examination of detailed maps, surveys, color photos and on-site observations, Department staff were able to compare existing operations with the expected improvements. Department staff were also able to articulate to the project sponsor and its consultant project design modifications and mitigation measures to lessen the impacts from blasting, dust, noise, etc. The proposal demonstrates that comprehensive environmental controls have been made part of the plans including the monitoring of each and every blast. Department staff's review of these plans resulted in the Department staff's determination that a mining permit would not be needed.

The Brooks' dairy herd currently uses a small portion of the project site for egress from the existing 300 foot dairy barn. The dairy operation and the project site are located on a small portion of the entire Brooks' farm holdings. The project plans provide for the storage and use of topsoil to create a soft, safe spot for the herd to congregate. The plans show that a 6 foot layer of soils containing a significant amount of clay/fines will be compacted in 6 inch layers to allow grasses to grow where there was predominantly bare rock. This carefully planned backfilling also serves to protect groundwater resources. Water will be diverted away from livestock areas to prevent contamination from manure and spoilage of feed resources.

A limitation on the sale or exchange of material derived from an exempt activity, if applied as an absolute limit on the availability of the exemption, would in many cases eliminate the utility of the exemption. For instance, the construction exemption available to allow excavation for a basement foundation for a single family home, would not prevent the need for a mining permit if the contractor were to remove material from the site and sell that material and, in effect, off-set the cost of excavation for the prospective home owner. The construction exemption should be available in such instances notwithstanding the off-site sale or exchange of the material. By contrast, the MLRL May 4, 1992 policy attachment limits the availability of either the construction or agricultural exemptions for the construction of a pond. The off-site sale or exchange of material would be a determining factor in that instance.

Application of the agricultural exemption to the facts outlined in the instant petition is easily distinguishable from the determination reached in Application of Theodore Miller, DEC 23-10, (January 28, 1999). Mr. Brooks' main focus is the expansion of the usable area for his existing large dairy herd. The detailed plans showing the benefits to the herd, the use of the entire site for dairy purposes, and the reuse of the topsoil for safe passage of the herd over what would otherwise be rock is persuasive. In contrast, the Department required a mining permit for the activities described in Miller. There, the project sponsor sought to excavate significant quantities of material, eliminate slopes and sell the material in order to add acreage that may have been farmed at a later date. In addition, the Miller submissions showed only generalized information regarding an actual implementable agricultural plan. In the instant case, there are detailed plans regarding the immediate end use of the property including an expansion of the existing diary barn and a clear need for an expansion of the area adjacent to that barn for use by the large dairy herd.

The 1991 amendments to the MLRL delete the reference to "solely in aid of on-site farming and construction" from the definition of "mining" and add clarifying language that "(m)ining shall not include the excavation, removal and disposition of minerals from construction projects, exclusive of the creation of water bodies, or excavation in aid of agricultural activities." L.1991, c.166, §228. To the extent that the Brooks Farm project accomplishes the statutory objectives of the MLRL by restoring the farm to a reasonably useful and attractive condition, a MLR permit is not required. Unlike the factual situation present in Theodore Miller, the Brooks Farm project will serve the statute's reclamation purposes.

Conclusion

For the reasons set forth above, we conclude that Mr. Brooks' proposed barn extension and excavation to the rear of the barn constitutes excavation in aid of agricultural activities and is therefore not included in the definition of "mining" as defined under ECL §23-2705(8). Therefore, we conclude that a mining permit is not required for this activity.

James H. Ferreira

James H. Ferreira
Deputy Commissioner and General Counsel

Dated: Albany, New York
July 1, 2003

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