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Auburn Aggregates - Summary Hearing Report, July 17, 1997

Summary Hearing Report, July 17, 1997

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Application of
for a Mined Land Reclamation Law Permit to mine and process sand and gravel
at a site in the Town of Concord, Erie County

DEC Application No. 9-1438-00058/00001


- by -

Edward Buhrmaster
Administrative Law Judge

July 17, 1997


Auburn Aggregates, Inc. ("the Applicant") proposes to mine sand and gravel from 95 of 174 acres of land it owns at a location south of NYS Route 39 and east of NYS Route 240 and Randall Drive in the Town of Concord, Erie County. The project includes material processing at a wash plant with a closed-loop water circulation system, in effect recycling the water so there is no off-site discharge. The estimated life of the mine is 20 years, and the reclamation objective is 80 acres of farmland, 12 acres of wildlife habitat, and a 3.5-acre pond.


The Applicant requests a Mined Land Reclamation Law permit pursuant to Article 23, Title 27, of the New York State Environmental Conservation Law ("ECL") and Parts 420-423 of Title 6 of the New York Code of Rules and Regulations ("6 NYCRR Parts 420-423"). The permit application was first received by the Department of Environmental Conservation ("DEC" or "the Department") on February 22, 1991, and a revised mined land use plan was submitted in September of 1993.

Pursuant to ECL Article 8 and 6 NYCRR Part 617 (State Environmental Quality Review), DEC as lead agency determined that the project would have a significant effect on the environment. DEC issued a positive declaration on October 25, 1993, and a revised draft Environmental Impact Statement ("EIS"), dated December, 1996, was subsequently accepted for public review.

On January 29, 1997, DEC Staff determined that the application was complete, and opened a public comment period which continued through March 28, 1997. In a letter dated February 5, 1997, the Town of Concord recommended certain permit conditions addressing mining setbacks, site security, dust control, and hours of operation. Other comments were received from Erie County officials, the Springville Grange, the Concord Historical Society, and neighbors of the project site.

On May 8, 1997, DEC Staff referred the application to DEC's Office of Hearings and Mediation Services for scheduling of a legislative hearing and issues conference.


Consistent with a hearing notice issued on May 20, 1997, I held a legislative hearing at 7 p.m. on July 1, 1997, at the Concord Town Hall in Springville. The hearing was held to receive public comments on the mining application, the accompanying draft EIS, and a draft permit prepared by DEC Staff, all of which had been made available for public inspection. Notice of the hearing was provided in the Springville Journal and the Buffalo News on June 5, 1997, and in the May 28, 1997, edition of DEC's Environmental Notice Bulletin. Copies of the notice were also distributed to local officials and people who had previously commented on the project.

Nine people spoke at the legislative hearing, most of them against some aspect of the project. Including the written statements received in response to DEC's notices, the main public concerns were as follows:

Truck traffic. A haul road will connect the processing plant with Route 39. This road will be the primary avenue of truck ingress and egress; an additional access road connecting with Route 240 will be used only in emergencies. Some people opposed the access road to Route 39, saying Route 39 is already busy and that the additional mine-related truck traffic could create public safety problems, especially at the intersection of Routes 39 and 240. Others opposed any connecting road to Route 240, claiming impacts to residences and the route itself. Regardless of the access avenue chosen, concerns were expressed about truck-generated noise and dust.

Loss of prime farmland. The Erie County Preservation Board said the project would lay waste to a vast tract of prime farmland, and the Springville Grange questioned whether it was in the best interest of the community to remove the land from crop growing. Charlis Krzemien, who with her husband Bill sold the project site to the Applicant, countered that the number of active farms along Route 39 between Routes 240 and 16 had fallen from 13 to two in the last 41 years, that there are many acres of available agricultural land not being farmed now, and that when this project is completed, most of the affected acreage will have been reclaimed for agricultural use.

Impact to historic properties. The Erie County Preservation Board said the project would destroy a possible Native American camp ground and burning pit. The Concord Historical Society said there was a major Native American settlement in the southeast quadrant of the Town of Concord, bordering Cattaraugus Creek, and objected that no one on behalf of the Applicant contacted the society for information. Archaeological field reconnaissance performed for the Applicant identified no cultural resources on-site.

Setbacks. Among other recommendations, Charles M. Swanick, chairman of Erie County's agricultural and farmland protection board, said there should be a mining setback of at least 250 feet along Route 240 and Randall Road to allow eventual residential lot development, if desired, by the town, with a dense planting of trees and vegetation to shield direct and visual impacts. The requested setback has been incorporated in Staff's draft permit, as noted below.


As announced in the hearing notice, I held an issues conference at 10:30 a.m. on July 2, 1997, also at the Concord Town Hall. The Applicant was represented by Adam S. Walters, Esq., of Phillips, Lytle, Hitchcock, Blaine & Huber, in Buffalo. DEC Staff was represented by David Stever, Esq., of DEC's Region 9 office in Buffalo.

The hearing notice provided an opportunity for interested persons to file for party status at a hearing which would adjudicate permit-related issues. However, no filings were received prior to the deadline set in the notice, and no late filings were presented at the issues conference. Therefore, the only conference participants were the Applicant and DEC Staff.

DEC Staff's position was that the project complies with all requirements of the Mined Land Reclamation Law and its accompanying regulations, and that all of the project's adverse environmental impacts would be adequately mitigated under terms of a draft permit Staff was prepared to issue. Staff's draft permit, which had previously been available for public review, was marked as conference Exhibit No. 6, and is attached to this report as Appendix "A".

While Staff proposed no issues for adjudication, it identified some items for discussion and possible supplementation of the permit. The Applicant likewise proposed no issues for adjudication, but said it had some points to discuss. The parties' concerns, and some additional ones of my own, were addressed as follows:

  1. Air Permit

    The Applicant's processing facility will require an air pollution control permit to construct and certificate to operate pursuant to ECL Article 19 and 6 NYCRR Parts 200 and 201. An application for this permit has not yet been filed, although the facility has been evaluated as an air pollution source in the draft EIS. The Applicant has requested that consideration of the necessary air permit be deferred because the specifications of the processing facility have not been determined. Staff agrees that it would premature to require an air permit application because the exact nature of the processing that will be employed (whether it will be a wet or dry process) is unclear. The Department's regulations state that if a project requires more than one DEC permit, the applicant must simultaneously submit all the necessary applications, or demonstrate to the Department's satisfaction that there is good cause not to do so [6 NYCRR 621.3(a)(3)]. Since the Applicant and DEC Staff agree there is good cause not to require the air permit application at this time, that application will be made later.

  2. Town's Determinations On Mining-Related Issues

    As authorized by ECL Section 23-2711(3), the Town has made determinations on certain mining-related issues and provided them to DEC Staff. (See conference Exhibit No. 7, which consists of a letter from Concord Town Supervisor Richard F. Timm to DEC Deputy Regional Permit Administrator Kenneth C. Taft, dated February 5, 1997, and Mr. Taft's letter in response, dated May 1, 1997.) The Town's determinations were embodied in recommendations for certain permit conditions, and have been addressed as follows:

    1. Setbacks. The Town recommended that the mine setback along Route 240 be a minimum of 250 feet and not the 25 feet shown on the mining plan map as last revised in August of 1995. Staff basically adopted this recommendation in special condition No. 3 of the draft permit, which states that the west mine boundary shall be set back a minimum of 250 feet from Route 240 and Randall Drive, with the exception of the mine entrance from Route 240. Also, at the issues conference, the parties agreed on a new special condition, to be added to the final mining permit, which will state that prior to the commencement of any mining activity at the site, the permittee shall submit revised mining and reclamation plan maps delineating the 250-foot setback. These maps will become part of the approved plans for the project, superseding maps which are now referenced in the draft permit. The revised maps will also delineate three neighboring wells and one residence not presently shown on them, as agreed by the parties.
    2. Restriction of site access. The Town recommended that all ingress and egress roads be gated and locked at all times when the mine is not in operation. This resulted in special condition No. 10 of the draft permit, which requires that both mine entrance roads be gated, and locked when the permittee's personnel are not on the site.
    3. Hours of operation. The Town recommended that hours of operation be limited to Monday through Saturday from 6 a.m. to 6 p.m. These hours were adopted in special condition No. 5 of the draft permit, which also prohibits operations on national holidays. Staff's restriction on hours of the mining operation applies to the excavation as well as the movement and processing of materials.
    4. Road maintenance. Finally, the Town recommended that all roads be maintained at all times to keep dust levels to a minimum. Staff responded that this requested condition was too vague and therefore would be unenforceable as written. In his letter to Mr. Timm, Mr. Taft suggested that the Town provide a more specific and detailed rewording of its proposed permit language, along with supporting documentation. However, nothing was subsequently submitted by the Town.

    At the issues conference Staff confirmed that all activities authorized by the mining permit must be in conformance with the approved plans submitted as part of the permit application, and that those "approved plans" include all mitigation measures described in Chapter 6 of the draft EIS. [See, general permit condition No. 17 and special permit condition No. 1.b.] That chapter states that:

    • Dust from truck traffic will be mitigated by water trucks spraying all haul roads when necessary;
    • Route 39 will be swept periodically when needed; and
    • Haul roads will either be gravelled or covered with millings (recycled asphalt pieces) for a distance of 300 feet to reduce dust and keep mud off Route 39. [Draft EIS, Volume I, Section 6.1.5, p. 63.]

    While these requirements are adopted by reference in the draft permit, I recommend they be set out separately in the final permit as a special permit condition, to emphasize the permittee's responsibility and for ease of reference since this issue was a special concern of the Town. When spraying and sweeping would be "necessary" could be made even more explicit; however, as the parties appear satisfied with the language in the draft EIS, I leave it to them whether any further fine-tuning is appropriate. Staff had indicated at the legislative hearing that it would support a condition explicitly addressing road maintenance to control dust, provided such condition was more definitive than that proposed by the Town. A condition embodying language in the draft EIS would provide more definition, and should not be objectionable to the Applicant, since it proposed the mitigative measures outlined in the EIS and understands itself to be bound by them in any case.

    (One minor correction: Special condition No. 1 refers to the approved plans in general condition No. 16, when the correct reference is apparently general condition No. 17.)

  3. Berms

    Special condition No. 6 of Staff's draft permit requires that mandated soil berms erected for noise mitigation be high enough to block line-of-sight between all mining operations and equipment (except overburden stripping, berm construction, reclamation and the west mine entrance) and the upper windows of homes along Route 240 and Randall Drive, and to the north along Route 39. At the issues conference Staff proposed that this condition be amended to require the permittee to submit and receive Department approval of a soil berm plan prior to the commencement of any mining activity. Staff said such a plan is important to show how high a berm will be needed to fulfill the condition's screening requirement. The Applicant agreed to the condition's amendment as proposed by Staff.

  4. Impacts to Local Groundwater

    Special condition No. 8 of Staff's draft permit requires the Applicant to provide potable water to any residence within a geographic area of study defined in the draft EIS as extending 2500 feet beyond the proposed mining limits, whenever the quantity of water in the residence's private water well may be adversely affected by mining, unless and until the permittee can demonstrate to DEC's satisfaction that its mining operation is not contributing to the problem. The Applicant said that by measuring water depths in on-site wells, it could determine whether its operation is having an off-site effect on groundwater quantity. Also, the Applicant said it would contact homeowners who have wells within the geographic area of study and attempt to measure their wells prior to the commencement of mining. The Applicant said that homeowners it had talked with so far were receptive to this and that, to the extent there were problems getting well measurements, Michael Meyers, DEC's Region 9 mined land reclamation specialist, had agreed to act as a go-between.

  5. Responsiveness Summary

    To complete the final EIS for this project, DEC must respond to all substantive comments on the draft EIS. [6 NYCRR 617.9(b)(8).] The Applicant shall prepare a "responsiveness summary" addressing all comments received in response to the Notice of Complete Application and Availability of the Draft EIS, and also in response to the Notice of Public Hearing. This shall include responses to written comments submitted to the Office of Hearings and Mediation Services, copies of which I have furnished to the Applicant, and oral statements made at the legislative hearing. DEC Staff shall receive and review the Applicant's draft for adequacy and accuracy and direct necessary changes before it adopts the summary as the Department's own.


There are no disputes between the Applicant and Department Staff over any substantial term or condition of the draft permit prepared by Staff as amended at the issues conference. Neither party proposed any issues for adjudication, and there were no filings for party status and therefore no other potential issues to adjudicate.

Therefore, consistent with 6 NYCRR 624.4(c)(5), the hearing is canceled and Staff shall complete processing the mining permit application and make the requisite SEQRA findings for this project. As noted above, an air permit application is still required for the processing facility.

TO: Adam S. Walters, Esq.
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center
Buffalo, New York 14203

Anthony M. Distefano
324 Pavement Road
Lancaster, New York 14086

David F. Stever, Esq.
NYSDEC, Region 9
270 Michigan Avenue
Buffalo, New York 14203-2999

The Honorable Richard F. Timm
Supervisor, Town of Concord
P.O. Box 368
Springville, New York 14141-0368

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