Lane Construction Company - Decision, June 26, 1998

Decision, June 26, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

the Application of

LANE CONSTRUCTION COMPANY

for a Mined Land Use Permit, and other required permits for operation of a Hard Rock Mine
in the Town of Nassau, Rensselaer County, New York

DEC Project No. 4-3830-00046/00001-0

DECISION

June 26, 1998

DECISION OF THE DEPUTY COMMISSIONER

Introduction

This is the final decision of the Deputy Commissioner with respect to the application of Lane Construction Company for a mined land reclamation permit and related permits to construct and operate a rock quarry in the Town of Nassau, Rensselaer County. Because the Commissioner was the Department's General Counsel during times that the issues conferences and hearings took place in this matter, authority to make this decision has been delegated to the Deputy Commissioner for Natural Resources.

The attached Hearing Report of Administrative Law Judge ("ALJ") Robert P. O'Connor, is accepted, subject to the discussion below, which rejects the ALJ's ultimate recommendation to license the project. My reading of the ALJ's findings of fact and my interpretation of the DEIS and record in this proceeding lead me to conclude that the project's long term visual impacts and impacts on the community are unacceptable. I am therefore denying the requested permits.

Background

Lane Construction Corporation proposes to quarry and process stone (principally Rensselaer Graywacke) from 119 acres of a 136 acre site located to the northwest of the intersections of State Route 66 and US Route 20 in the Town of Nassau, Renesselaer County. Crushing and screening is proposed to be done on the site. A mined land use plan and reclamation plan accompany the application.

By maintaining a rock ridge between the area of excavation and Route 66, the Applicant seeks to screen the mining activity visually and from noise during all but the initial and last stages of mining. The life of the mine is expected to be for one-hundred years or more, based on Applicant's anticipated rates of excavation. The purpose of the project is to provide high quality crushed stone for use primarily on the region's public roadways. As discussed further below, the Department's task is to determine whether mined land reclamation, water discharge, and air emission permits for project construction and operation should be issued. In so doing, the Department must identify and evaluate the project's potential adverse environmental impacts, and determine whether they can be avoided or acceptably minimized or mitigated to the maximum extent practicable.

Proceedings leading up to the ALJ's Report

Lane's quarry proposal was determined by Department Staff as lead agency to require preparation of an environmental impact statement pursuant to SEQRA. Upon receipt and review of the DEIS, the application was declared complete, in January 1995. Staff then determined that public hearings should be held. Public notice of the hearing was published, and legislative hearings commenced in June 1995. As the ALJ's attached report recounts, there was considerable public interest and concern expressed about the project, with the focus of opposition coming from local residents concerned about the mine's environmental impacts, including visual, noise, dust, effects on the rural character of the community and impacts on groundwater. Issues conferences were then held over four days between July 1995 and April 1996. Following the September 21, 1995 issues conference, four proposed intervenors (the Towns of Nassau and Chatham, the Nassau Union Concerned Citizen ("NUCC"), and Citizens Against Lane Mine ("CALM") moved the Commissioner for an expedited appeal of the ALJ's denial of their request to suspend the proceedings on the grounds that Lane's proposal is prohibited by the Town's zoning ordinance. In an Interim Decision of November 27, 1995, then Commissioner Zagata confirmed the Department's Technical Guidance Memorandum MLR 92-2, which provides that zoning disputes between an applicant and a local government will not be a basis for the Department to suspend processing of mining permit applicationsExcept as to applications on Long Island.. Following this interim decision, the issues conference resumed and concluded in April 1996.Adjournments were with the parties' consent.

The ALJ's final Issues Ruling, made on April 22, 1996, was appealed to the Commissioner by Staff, Applicant and several intervenors. On July 31, 1996, the Commissioner's Second Interim Decision decided the appeals, thereby defining nine specific issues for adjudication. Those issues were:

• Blasting impacts
• Visual impacts
• Air quality - dust impacts
• Air quality - health impacts
• Surface water/SPDES
• Old Town dump site
• Groundwater
• Air quality - economic impacts

Adjudicatory hearings began on December 11, 1996 and were completed on October 8, 1997. ALJ O'Connor's attached report gives his recommendations with respect to each of the issues adjudicated at the hearings.

The Commissioner's Responsibility under the Mined Land Reclamation Law and SEQRA

Prior to discussing the ALJ's recommendations and my overall conclusion, I want to outline the Commissioner's responsibility in this mining permit case. This is especially appropriate because Lane's application has been controversial and has drawn heavy criticism from local citizens. As such, any decision is bound to be disappointing to some parties, and to be applauded by others. It is the Commissioner's responsibility to apply the Environmental Conservation Law ("ECL") fairly and in the manner intended by the Legislature. Therefore, I turn to the Mined Land Reclamation Law ("MLRL") which is Article 23, Title 27 of the ECL, and then to SEQRA, which is Article 8 of the ECL.

The Legislature's policy under the MLRL, adopted in 1974, is to foster and encourage the development of an economically sound and stable mining industry, and the orderly development of domestic mineral resources necessary to assure satisfaction of economic needs compatible with sound environmental practices (ECL 23-2703(1)). The State's mined land reclamation policy is to plan and manage use of non-renewable mineral resources, to provide for a productive reclamation of mined sites, to prevent pollution, and to protect public health and safety, including aesthetic values. (Id.). DEC is responsible for implementing these statutory directives.

I understand the MLRL and SEQRA to require me to evaluate whether a mining application meets the criteria for permit issuance, and whether adverse environmental impacts can be avoided, mitigated, or minimized adequately in light of other economic and social considerations. In making such a judgment, I need to give weight to environmental protection considerations as well as to considerations of management and planning for the use of non-renewable natural resources

Discussion of the ALJ's Recommendations

Based on the overall record in this case, I am unable to accept the ALJ's recommendations that the application should be granted. Based on the record, I conclude that the project's impacts on the historical and scenic character of the community including visual and other impacts on the community cannot be sufficiently mitigated and will not be acceptable. While the mining plan has been developed to seek to screen the mining activity's visual and noise impacts, the ALJ in fact notes that unavoidable adverse visual and noise impacts will be felt, especially in the early and late stages of the mining plan. For example, he concludes that the rock drill, when operating at the tops of the hills, would create noise that would radiate to the surrounding area. He concludes also that the overall long term effect of leveling Snake Mountain would be a significant adverse impact on the character of the community. The ALJ also cites the determination of the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") that the project will have "an Adverse Visual Impact" and that "Given the close proximity and topographic relationship between the mine site and surrounding historic properties, and the proposed extent of the mining, the visual impact is considered to be adverse..." and "there are no feasible and prudent alternatives which would avoid or satisfactorily mitigate the Adverse Visual Impacts of the Land Mine project." This conclusion is supported by the visual impact assessment submitted by the intervenor's visual impact expert.

Moreover, the noise and associated impacts of the proposed mining activity will intrude on the character of the local community to a degree that I find to be unacceptable.

Conclusion

In light of the foregoing, I am unable to make the necessary findings under SEQRA, and must deny the application.

For the New York State Department
Of Environmental Conservation
/s/
By: Peter Duncan
Deputy Commissioner for Natural Resources

Albany, NY
June 26, 1998

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York
12233-1550

(518) 457-3468

In the Matter

- of -

the Application of

Lane Construction Corporation
965 East Main Street
Meriden, Connecticut 06450

Pursuant to Environmental Conservation Law ("ECL") and Title 6
of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR") for permits to operate a hard rock quarry
in the Town of Nassau, Rensselaer County, New York

DEC Project Number 4-3830-00046/0001-0

HEARING REPORT/FINAL ENVIRONMENTAL IMPACT STATEMENT

- by -

/s/
Robert P. O'Connor
Administrative Law Judge

TABLE OF CONTENTS

SUMMARY STATEMENT

PROCEEDINGS

RULINGS ON PENDING MOTIONS

FINDINGS OF FACT

Background
Blasting and Noise
Visual Impacts
Air Quality - Dust Impacts
Air Quality - Health Impacts
Surface Water/SPDES
Old Town Dump
Groundwater
Air Quality - Economic Impacts

CONCLUSIONS

Blasting and Noise
Visual Impacts
Air Quality - Dust Impacts
Air Quality - Health Impacts
Surface Water/SPDES
Old Town Dump
Groundwater
Air Quality - Economic Impacts

DISCUSSION

RECOMMENDATION

SUMMARY STATEMENT

This Summary Statement is provided as a prologue to the Hearing Report/Final Environmental Impact Statement ("FEIS") pursuant to Environmental Conservation Law ("ECL") Article 8 (Environmental Quality Review) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 (State Environmental Quality Review).

Lane Construction Corporation ("Lane" or the "Applicant") has applied to the New York State Department of Environmental Conservation ( the "Department" or "Staff") for permits [mined land reclamation, State Pollutant Discharge Elimination System ("SPDES") and air quality permits] to operate a hard rock quarry in the Town of Nassau, Rensselaer County, New York. The Applicant's quarry operations would involve blasting and processing of rock on the site. Initially, the quarrying operation would affect approximately 23 acres of the approximately 136 acre site. The proposed "life-of-mine" is 100 to 150 years, over which time approximately 119 acres of the 136 acre parcel would be affected. The mining operations would gradually reduce the elevation of Snake Mountain ("Snake Hill") by some 270 feet. The proposed project site is northwest of the intersection of NYS Route 66 and US Route 20 in the very southeastern corner of the Town of Nassau, Rensselaer County. Additional approvals may be required for matters under local jurisdiction.On December 29, 1997, residents of the Hoags Corners, East Nassau and Brainard areas of the Town of Nassau voted to establish the new Village of East Nassau, the jurisdictional boundaries of which encompass the Applicant's property and proposed mine site. Consideration of the respective authorities of the governments of the Town of Nassau and the Village of East Nassau is not within the scope of this proceeding.

A legislative public statement hearing was held on June 27, 1995 to receive comments on the proposed project and Draft Environmental Impact Statement ("DEIS"). Pre-hearing issues conference sessions were held on July 24 and 25, and September 21, 22 and 26, 1995, and April 9, 1996. Preliminary Rulings were issued on September 21, 1995; Interim Rulings were issued on February 22, 1996; Final Rulings were issued on April 22, 1996. Appeals were taken from the Preliminary Rulings, and an Interim Decision was issued by the Commissioner on November 27, 1995. Appeals were also taken from the Interim and Final Rulings, with the Commissioner's Second Interim Decision being issued on July 31, 1996. A viewshed area driving visit occurred on August 11, 1995, and an on-site walking visit to the Applicant's property was conducted on October 28, 1996. An adjudicatory hearing to receive testimony and evidence on the proposed project was conducted on twenty-eight days between December 11, 1996 and October 8, 1997. The last transcript volume of the stenographic record of the hearing was received on November 3, 1997. The Parties then submitted post-hearing Initial Briefs on December 18, 1997 and Reply Briefs on February 3, 1998.

The Applicant provided a summary of responses to the comments received on the DEIS on March 31, 1998. Comments on the Responsiveness Summary were received from the Department Staff on April 14, 1998 and from the various Intervenors on April 22 and 23, 1998. The hearing record was officially closed on April 27, 1998.

Incorporated by reference in this Hearing Report/FEIS are: the complete hearing record, including the permit applications [mined land reclamation, State Pollutant Discharge Elimination System ("SPDES") and air quality], the DEIS and all subsequent updates, revisions and supplements, all comments on the DEIS and proposed project received during the initial public comment period and subsequently during the hearing process, the Applicant's responses to DEIS comments and responses thereto from the Department Staff and Intervenors, the hearing notices and respective affidavits of publication, all motions, all rulings, all appeals and petitions, the interim decisions, all filings for party status to participate in the adjudicatory hearing, all correspondence in this matter after the date of the hearing notice, all hearing exhibits, the stenographic transcript of the hearing and all post-hearing briefs. The hearing record in its entirety, which ultimately also incorporates this Hearing Report/FEIS, provides the basis for the Department to issue its Decision.

As discussed in detail in the subsequent sections and paragraphs of this Hearing Report/Final Environmental Impact Statement, the Applicant's proposal to operate a hard rock mine/quarry on its property in the Town of Nassau is approvable, as further detailed in the following Findings of Fact and Conclusions.

PROCEEDINGS

Project Description

Lane Construction Corporation has applied to the New York State Department of Environmental Conservation for permits to operate a hard rock quarry in the Town of Nassau, Rensselaer County, New York. The Applicant's proposal would include blasting and processing of rock at a site which was previously used as a rock quarry. The term of the initial renewable mining permit would not exceed five years, during which time the quarrying operation would affect approximately 23 acres of the site. The proposed quarry would have a "life-of-mine" of 100 to 150 years or more, depending on the rate of removal of the stone. Ultimately, the project would encompass approximately 119 acres of a 136 acre parcel and would level (reduce the elevation by some 270 feet) a prominent topographic feature known as Snake Mountain or Snake Hill in the Brainard-East Nassau area along the Kinderhook Creek in southeastern Rensselaer County. The proposed project site is located west of NYS Route 66 and north of US Route 20, with access to the mine located on the west side of Route 66 approximately one-half () mile north of Route 20. In addition to the requested mining (mined land reclamation) permit, Lane has applied to the Department for a State Pollutant Discharge Elimination System (SPDES) permit for a surface water discharge from the quarry and an air permit for operation of an air emission source from the processing of the mined rock.

Applicable Statutory and Regulatory Provisions

The applications were filed and are being processed pursuant to ECL Article 3, Title 3 (Department of Environmental Conservation, General Functions, Powers, Duties and Jurisdiction); Article 8 (Environmental Quality Review); Article 17, Title 8 (Water Pollution Control, State Pollutant Discharge Elimination System); Article 19 (Air Pollution Control); Article 23, Title 27 (Mineral Resources, New York State Mined Land Reclamation Law); Article 70 (Uniform Procedures); and 6 NYCRR Part 200 (Prevention and Control of Air Contamination and Air Pollution); Part 420 (Mined Land Reclamation); Part 617 (State Environmental Quality Review); Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 700 (Classifications and Standards of Quality and Purity); and Part 750 (State Pollutant Discharge Elimination System).

SEQRA Status

The application for the mining permit was initially received by the Department Staff on August 12, 1992. Pursuant to the State Environmental Quality Review Act ("SEQRA"), ECL Article 8, and implementing regulations in 6 NYCRR Part 617, the Department Staff, as Lead Agency, determined on December 19, 1992 that the proposed project may have a significant effect on the environment and issued a Positive Declaration. Since the determination of significance in this matter was made prior to January 1, 1996, the actions proposed in the instant project must comply with the version of Part 617 which was effective from June 1, 1987 through December 31, 1995.

In response to the Positive Declaration, the Applicant prepared a Draft Environmental Impact Statement (DEIS) for the project. On January 11, 1995, the Department Staff, as Lead Agency, determined the application for the mining permit for the above described project was sufficiently complete for the purpose of commencing its formal review, accepted the DEIS for the proposed action as complete for review purposes and initiated a public comment period on the DEIS and subject proposal.

Public Statement Hearing

The required Notice of Public Hearing was published in the Department's Environmental Notice Bulletin ("ENB") and the Troy Record newspaper, on May 31, 1995 and June 1, 1995, respectively. An amendment to the public hearing notice which extended the public comment period was published in the Record and in the ENB on June 10, 1995 and June 14, 1995, respectively. A legislative public statement hearing to receive comments on the proposed Project was conducted by the Department's Office of Hearings in the Donald P. Sutherland Elementary School, Nassau, New York at 7:00 P.M. on Tuesday, June 27, 1995, with Administrative Law Judge ("ALJ") Robert P. O'Connor presiding, assisted by ALJ Susan F. Weber. Approximately 400-500 persons attended the hearing. Thirty-seven persons made statements at the hearing. The public comment period remained open for the receipt of written comments through July 10, 1995. The comments received during this public comment process at and after the hearing were overwhelmingly opposed to the proposed project.

The Applicant submitted its application for an air quality permit on July 21, 1995. The potential air quality impacts were discussed in the DEIS, and the Staff determined the air permit application complete on August 16, 1995. As duly noticed in the Department's ENB and the Troy Record on August 23, 1995, the comment period for the air permit extended through September 22, 1995. The processing of the air permit application was incorporated into the then ongoing issues conference proceedings.

The Applicant submitted its SPDES permit application on February 21, 1997. The potential surface water impacts of the proposed project had been outlined in the DEIS and were updated and elaborated upon in the SPDES permit application. The Staff determined the SPDES application to be complete on March 6, 1997. As noticed in the Department's ENB and the Troy Record on March 12, 1997 and March 13, 1997, respectively, the comment period for the SPDES permit application extended through April 15, 1997 when a public hearing would convene at 9:30 A.M. in the St. Mary's Church Parish Hall, Nassau, New York. By public notice in the Department's ENB and the Troy Record on March 26, 1997 and March 25, 1997, respectively, the hearing was rescheduled to commence one week later, on April 22, 1997, and the public comment period was likewise extended through that date. Further processing of the SPDES permit application was incorporated into the then ongoing adjudicatory hearing proceedings.

Issues Conference

A pre-adjudicatory hearing issues conference commenced in the Nassau Town Hall, Nassau, New York at 10:00 A. M. on Monday, July 24, 1995 to consider any potentially adjudicable issues and all timely filed applications to participate in any adjudicatory hearing which might be held in this matter. The issues conference was continued on July 25, 1995 in the St. Mary's Church Parish Hall in Nassau, New York.

ALJ's O'Connor and Weber jointly issued Preliminary Rulings on September 21, 1995 at the reconvened issues conference in St. Mary's Parish Hall. The issues conference was continued on September 22 and 26, 1995 in the same location. Various of the issues conference participants appealed the Preliminary Rulings, and on November 27, 1995, then Commissioner Michael D. Zagata issued an Interim Decision which addressed such appeals. The ALJ's issued an Interim Issues Ruling on February 22, 1996 and, following a concluding issues conference session on April 9, 1996 in St. Mary's Parish Hall, a Final Issues Ruling was distributed to the issues conference participants on April 22, 1996. Appeals from the Interim and Final Issues Rulings were addressed in the Commissioner's Second Interim Decision of July 31, 1996.

The Rulings of the ALJ's, as affirmed and/or modified by the Interim Decisions, determined the party status of the various participants and certified as adjudicable issues: Noise, Blasting, Visual Impacts, Air Quality - Dust Impacts, Air Quality - Health Impacts, Surface Water/SPDES, Old Town Dump, Groundwater and, lastly, Air Quality - Economic Impacts (listed here in the order in which they were considered at the hearing).

The Adjudicatory Hearing

The adjudicatory hearing in this matter commenced before ALJ O'ConnorALJ Weber left the employ of the Department in June 1996. ALJ O'Connor continued as the presiding ALJ in this matter. in the St. Mary's Church Parish Hall, Nassau, New York on December 11, 1996. All subsequent sessions of the hearing were held in the same location on December 12, 13, 17, 18, 1996, January 7, 8, February 5, 6, 7, March 18, April 22, 23, 24, 25, 29, 30, May 1, 2, 7, 9, 12, 14, 16, 19, 21, October 7 and 8, 1997.

The last transcript volume of the stenographic record of the hearing was received on November 3, 1997. The Parties then submitted post-hearing Initial Briefs on December 18, 1997 and Reply Briefs on February 3, 1998.

The Applicant provided a summary of responses to the comments received on the DEIS on March 31, 1998. This document was incorporated into the record as Exhibit No. 124. Comments on the Responsiveness Summary were received from the Department Staff on April 14, 1998, from the Rensselaer County Environmental Management Council on April 22, 1998, and from pro se parties Robert Henrickson and Alice Impastato on April 23, 1998 and were assigned Exhibit Nos. 125 through 128, respectively. All are incorporated into the hearing record. The hearing record was officially closed on April 27, 1998.

The Applicant was represented in these proceedings by James T. Potter, Esq. of the law firm DeGraff, Foy, Holt-Harris & Kunz, LLP, 90 State Street, Albany, New York 12207. The Applicant is a full party to the proceeding pursuant to 6 NYCRR 624.5(a). Mr. Potter was accompanied at various times during the proceedings by Paul Griggs of George L. Marshall Engineering Geologists, by Jeffery T. Lang of Spectra Environmental Group, Inc. and by Robert Turner and David Reynolds, both of Lane Construction Corporation.

The assigned Department Staff is also a full party to the proceeding pursuant to 6 NYCRR 624.5(a). The Staff was represented by David H. Keehn, Esq., Assistant Region 4 Attorney, in the Department's offices at 1150 North Westcott Road, Schenectady, New York 12306. Accompanying Mr. Keehn during the hearing proceedings was Arthur Henningson, Environmental Analyst 2/Deputy Permit Administrator, DEC Region 4.

The Rensselaer County Environmental Management Council, Ned Pattison Government Center, Troy, New York 12180 (the "County" or "RCEMC") was represented by Ken Dufty, Executive Director. The County was granted full party status pursuant to 6 NYCRR 624.5(b) and (d)(1).

The Town of Nassau, Rensselaer County, (the "Town") was represented by Philip J. Danaher, Esq., 77 Troy Road, East Greenbush, New York 12061, attorney for the Town, and at various times during the proceedings by then Town Supervisor William Knight and by then Town Board member and current Supervisor Carol Sanford. The Town was granted full party status pursuant to 6 NYCRR 624.5(b) and (d)(1).

The neighboring Town of Chatham, Columbia County, was represented at the issues conference by John Hanna, Esq. and Theresa Bakner, Esq. of the law firm Whiteman, Osterman and Hanna, One Commerce Plaza, Albany, New York 12260. The Town of Chatham was granted amicus status in accordance with 6 NYCRR 624.5(b) and (d)(2). The Town of Chatham did not participate in the adjudicatory hearing. The Town of Chatham was represented during the post-hearing briefing process by Joan Leary Matthews, Esq. of the law firm Gordon, Siegel, Mastro, Mullaney, Gordon and Galvin, P.C., 670 Franklin Street, Schenectady, New York 12305.

The New Lebanon Central School District Board of Education, P.O. Box 38, West Lebanon, New York 12195 was represented initially by Board members Robert Linville, Leonard Berry and Leonard T. Impastato. As the hearing progressed, Lois Face, District Clerk, was designated as the official contact person for the School Board. Present as an observer on behalf of the School Board at most of the adjudicatory hearing sessions was Carla Humbert. The School Board was granted amicus status with regard to the potential issues of noise impacts and trafic safety in accordance with 6 NYCRR 624.5(b) and (d)(2). However, the traffic safety issue was ultimately determined to not be an adjudicable issue in this proceeding, and the School Board did not actively participate in the adjudicatory hearing.

The Nassau Union of Concerned Citizens ("NUCC") was represented initially through the issues conference proceedings by Lewis B. Oliver, Jr., Esq., 156 Madison Avenue, Albany, New York 12202, and subsequently through the adjudicatory hearing proceedings by Joan Leary Matthews, Esq. of the law firm Gordon, Siegel, Mastro, Mullaney, Gordon and Galvin, P.C., 670 Franklin Street, Schenectady, New York 12305. NUCC was granted full party status pursuant to 6 NYCRR 624.5(b)and (d)(1), and actively participated in the hearing.

Citizens Against Lane Mine ("CALM") was represented initially through the issues conference proceedings by Theresa Bakner, Esq. of the law firm Whiteman, Osterman and Hanna, One Commerce Plaza, Albany, New York 12260. CALM was granted full party status pursuant to 6 NYCRR 624.5(b)and (d)(1). CALM did not participate in the adjudicatory hearings.

Robert L. Henrickson, 6986 NY 66, East Nassau, New York 12062 appeared as a pro se Intervener in the instant proceedings. Mr. Henrickson was granted full party status pursuant to 6 NYCRR 624.5(b)and (d)(1). However, as his viewpoints and input are similar to those of NUCC (indeed, he is an officer of the organization), his participation as a party was consolidated with that of NUCC pursuant to 6 NYCRR 624.8(b)(1)(xi). Mr. Henrickson was an active participant in the entire hearing process.

Alice and Leonard Impastato, Box 198, East Nassau, New York 12062 appeared as pro se Interveners in the instant proceedings. The Impastato's were granted full party status pursuant to 6 NYCRR 624.5(b)and (d)(1). However, as their viewpoints and input are similar to those of NUCC, their participation as parties was consolidated with that of NUCC pursuant to 6 NYCRR 624.8(b)(1)(xi). During portions of the issues conference, during the adjudicatory hearing's water-related issues and during the post-hearing briefing process, the Impastato's were represented by Paul R. Plante, P.E.

Summary Positions of the Parties

-The Applicant

The Applicant contends that it has presented comprehensive and irrefutable evidence that any potential impacts resulting from its proposal have been avoided or mitigated to the maximum extent practicable and that there will be no significant adverse environmental impacts as the result of its project. The Applicant further contends that it has satisfied the requirements set forth in the ECL and accompanying regulations which entitle it to receive its requested permits.

-The Department Staff

The Department Staff maintains that the Applicant has demonstrated with a preponderance of the evidence that the potential impacts identified during the hearing process have been minimized to the maximum extent practicable, and further contends that, subject to the special conditions set forth in the Staff's proposed draft permit, the Applicant has satisfied the statutory and regulatory requirements which should enable it to receive its requested permits.

-Rensselaer County Environmental Management Council

The RCEMC contends the project, as proposed by the Applicant, will result in unacceptable adverse environmental impacts to the Kinderhook Creek, one of the most significant and valuable natural resources in Rensselaer County. Further, the Applicant has done an inadequate job of determining the extent and character of the "Old Town Dump" wastes deposited on its property, such that, in the scheme of the Applicant's proposed sedimentation and surface water control facilities, this inactive landfill poses a potential threat to the water quality of the Kinderhook Creek and to down gradient residential well users. Additionally, the Applicant has inadequately and incorrectly characterized the interconnection between the groundwater "mound" contained within the rock structure of Snake Mountain and the proximate residential wells. The RCEMC maintains there will be an unacceptable adverse impact on the groundwater resources available to such wells once the Applicant begins removing the mountain and further that the proposed "well arbitration agreement" does not sufficiently protect the nearby homeowners who rely on these groundwater resources for their well supplies. Lastly, the RCEMC maintains that the present zoning regulations in the Town of Nassau do not authorize a mining project on the proposed site of the scope and duration proposed by the Applicant. The RCEMC urges that the permits sought by the Applicant be denied.

-Town of Nassau, Rensselaer County

The Town of Nassau states that the project proposed by the Applicant is not consistent with Local Law No. 2 of the Laws of 1986 of the Town of Nassau, Rensselaer County, New York, entitled "Land Use and Development Regulations". The Town expresses concern that the DEIS for the project fails to adequately address the Town's concerns regarding traffic safety, air and noise pollution and water quality. Additionally, the Town opines that the proposed mining operation would have an adverse economic impact on the Town and its residents by depressing property values. Noting that the local government should be the arbiter of what actions are appropriate to maintain the character of the community and that the Applicant has not applied for the requisite local permits to undertake its project, the Town expresses opposition to the project, but ultimately requests that if it is determined that the project is approvable pursuant to the ECL and implementing regulations, any such DEC permit approvals should be expressly conditioned upon the Applicant receiving any necessary municipal approvals as may be required by the zoning laws of the Town of Nassau.

-Town of Chatham, Columbia County

The Town of Chatham, as a township bordering the Town of Nassau near the Applicant's southern property boundary, states its concern that the project would adversely impact the Town of Chatham residents through noise and vibration from the quarry operations, through increased heavy truck traffic along rural roads, through degradation of the water quality in the Kinderhook Creek and through decreased property values and negative economic impacts on residences and businesses in the Town. The Town of Chatham is opposed to the project.

-New Lebanon Central School District Board of Education

The New Lebanon Central School District Board of Education, noting that the Walter B. Howard Elementary School is located on U.S. Route 20, approximately two miles east of the proposed project site, expresses concerns regarding traffic safety relative to the dozens of children being transported to and from the school and regarding the effects of blasting and noise on the children's learning environment at the school. Additionally, since the School District relies on the community tax base for its funding, any depression of property values attributable to the quarry would have a direct adverse impact on the District, either by way of decreased funding and consequent decreased quality of services to the community or by way of increased taxes to just maintain educational services at their present level. The School District is opposed to the project.

-Nassau Union of Concerned Citizens

NUCC, a group of citizens residing in the immediate and general vicinity of the proposed project, oppose the project on the general basis that the quarry will diminish their quality of life due to unmitigatable visual impacts, noise and blasting impacts, increased air pollution and consequent health impacts, traffic safety problems, water quality and quantity impacts and reduction in property values. In the instance of several members of the group who operate businesses in the vicinity of the proposed project, there is a contention that the businesses will be adversely impacted and may be forced to relocate or cease operation due to these anticipated impacts of the project. NUCC seeks denial of all requested permits for the project.

-Citizens Against Lane Mine

CALM, an association of persons who reside or do business in the Towns of Nassau and Chatham in the vicinity of the proposed project, a number of whom are also members of NUCC, is opposed to the project on the basis of essentially the same concerns as put forward by NUCC. CALM seeks denial of all requested permits for the project.

-Robert L. Henrickson

Mr. Henrickson is a property owner and businessman in East Nassau who is unalterably opposed to the project on the basis of noise and visual impacts and of adverse impacts to water quantity and quality, particularly noting that an abandoned town dump occupies an area of the site which is adjacent to the Applicant's proposed storm water control system. Mr. Henrickson seeks denial of all requested permits for the project.

-Alice M. And Leonard T. Impastato

The Impastato's reside at 72 Saddleback Ridge Road in East Nassau and are opposed to the project on the basis of adverse impacts of the project to water quantity and quality, noise, air quality and visual impacts. The Impastato's also fear that blasting for the quarry project will adversely affect the foundation of their 150 year old home. The Impastato's seek denial of all requested permits for the project.

RULINGS ON PENDING MOTIONS

Following the conclusion of the formal hearings, but before the hearing record was officially closed, various parties made several motions regarding various issues. These motions are ruled upon in the following paragraphs.

On January 14, 1998, RCEMC submitted a "Motion to Incorporate by Reference Experience with Riparian Loss and Harm in Other Proceedings," the thrust of which is to incorporate by reference into the instant proceeding material from the "Matter of the Application of Akzo Nobel Salt Inc. for permits to construct and operate an underground salt mine in Livingston County." On January 16, 1998, Mr. Henrickson joined in the motion. On January 22, 1998, the Applicant opposed the motion, and on January 26, 1998, RCEMC responded to defend its motion.

In brief, RCEMC has provided excerpts from the record on appeal wherein a local citizens group appealed the decisions of, among others, the Commissioner of Environmental Conservation, regarding AKZO's application for permits to construct and operate a new mine to replace the huge underground Retsof salt mine which collapsed with calamitous results for the company and the surrounding community. The excerpts relate, in part, the well monitoring activities which occurred after the collapse, the lowering of well water levels in the surrounding area, and in particular, the experience of one proximal well owner who had difficulty in getting AKZO to assume responsibility for the loss of his well and to thereafter provide a supply of potable water to the homeowner.

I am not aware of any sort of well water agreement between or among proximal well owners and AKZO at the time of the collapse of the Retsof mine. It is my understanding that some sort of a well water agreement was negotiated after the fact with the assistance of the State Attorney General's office. Additionally, I am aware that in the negotiations which occurred regarding the proposed new salt mine the local government and AKZO developed an agreement addressing financial security for potential problems attributable to the mine. This agreement contains, among other items, provisions for alternative dispute resolution ("ADR") and was incorporated as an appendix to the final permit for the new mine.

The circumstances relating to the collapse of the Retsof mine could not be more different than the conditions proposed by Lane in East Nassau. In the former, a very large underground excavation collapsed, causing subsidence at the surface and the inability of the nearer surface soil structure to hold the groundwater which was being used in the residential wells in the overlying area, i.e. - the near surface groundwater was "leaking" away from the surface to seek lower elevations, ultimately contributing to the flooding of the mine. In the Lane proposal, Snake Mountain is a prominent elevated geographical feature in the community. The hill contains groundwater which is under an elevational head and which may function as the recharge water for some nearby residential wells. Lane has agreed not to mine below the static level of any surrounding wells to purportedly ensure that sufficient head remains to recharge those wells.

Without commenting on the merits of Lane's proposal at this point, the fact that there is a well arbitration provision in the Staff's draft permit and the fact that there is an ADR agreement as an appendix to the AKZO permit are unrelated. The only relative fact is that both agreements are untested.

Although RCEMC seemingly indicates that the materials sought to be introduced into the instant record represent some sort of well water agreement for the former AKZO mine, there apparently was no well water agreement in place at the time of the mine collapse. The materials excerpted from the AKZO matter are not relevant in this proceeding, and therefore, the RCEMC motion to include these materials in the Lane proceeding is denied.

On January 12, 1998, Mr. Henrickson submitted a motion to strike from the record the testimony and evidence provided by Lane's witnesses Paul Griggs and Jeffrey Lang as related to their alleged lack of expert qualifications in the area of visual impact analysis. On January 20, 1998, the RCEMC submitted its support for the motion. On January 22, 1998, Lane submitted its opposition to the motion, and on January 25, 1998, Mr. Henrickson responded to defend his motion.

In an administrative proceeding, it is well established that nothing is stricken from the record. The record, in essence, says what it says. It is the presiding ALJ's responsibility to interpret the record, to assess the credibility and expertise of the witnesses' testimony and evidence and to weigh such testimony and evidence accordingly. Where "expert" witnesses testify to matters outside the scope of their expertise or are deemed by the ALJ to not be credible, such testimony and supporting evidence will receive little weight in the final analysis.

In the instance of Lane's witnesses Griggs and Lang, their areas of expertise are in the fields of engineering geology and hydrogeology, respectively. They have both previously been involved in the design of mining projects. In the instant case, they purportedly designed the mine to mitigate what they perceived to be the most offensive visual impact, i.e. - a view of the actual mining process. This is a proper area for them to address. Messrs. Griggs and Lang are not qualified to assess the overall visual impact which the mining project, in its totality, may have on the surrounding community. To the extent their testimony and evidence strays beyond the scope of their professional expertise, it will be accorded little weight. Therefore, Mr. Henrickson's motion to strike the testimony and evidence of Messrs. Griggs and Lang relating to visual impacts is denied.

When Mr. Henrickson submitted his Reply Brief on January 28, 1998, he appended a May 31, 1996 letter from the Applicant to the Nassau Town Board in which the Applicant outlined a series of measures it would be willing to undertake and implement over and above the measures proposed in its DEC applications in order to address the concerns of the community and in an attempt to resolve outstanding issues and avoid a protracted, expensive administrative hearing. The written proposal of these measures was to formalize settlement negotiations which had occurred between the Applicant and the Town Board in a previous meeting. On February 12, 1998, the Applicant responded with its opposition to the inclusion of this letter in the record of the proceeding. On February 15, 1998, Mr. Henrickson provided a response defending his inclusion of the letter with his Reply Brief.

The letter in question was initially submitted by the RCEMC on June 14, 1996 in a motion to amend Lane's application as an attempt to demonstrate that the Applicant had changed its project. Then, the Applicant argued that it had proposed a project which adequately mitigated any potential significant adverse environmental impacts, but that in order to avoid a long and costly hearing, it had proposed additional, although in its opinion totally unnecessary, mitigating measures, the cost of which, while expensive, would be offset by not having to pay for a lengthy hearing. Lane further argued that offers of settlement are inadmissable in evidence as a matter of public policy, as embodied in State case law, Federal practice and in the Department's ownregulations dealing with settlement conferences. On July 11, 1996, I ruled that the letter was inadmissable, as there is no provision in the Department's regulations which allows an intervenor to seek amendment of a project sponsor's application, and further, that the measures which the Applicant may have proposed to the Nassau Town Board were not representative of the applications which Lane was pursuing before the Department.

At this time, Mr. Henrickson argues that inclusion of the letter in the record is necessary, as it clearly indicates that the significant adverse environmental impacts of the project are not mitigated to the maximum extent practicable, i.e. -- that more can be done to mitigate the adverse impacts of the project than the Applicant is proposing to the Department. Additionally, he argues that the rules of evidence do not have to be strictly applied in administrative proceedings. The Applicant argues that the economics of including the additional mitigation measures proposed to the Nassau Town Board are no longer viable, with the tremendous expense of the hearing now factored into the balance. Furthermore, the Applicant maintains that the additional mitigation measures are superfluous as the potential adverse environmental impacts are avoided by the project's design, and that to the extent that those impacts are not completely avoided, they have been adequately mitigated in accordance with the mandates of SEQRA.

To rely on the Applicant's over two year old settlement letter at this point in the proceedings is wholly inappropriate. Consideration of extensive testimony and evidence on the Applicant's formal proposals before this agency has gone on for months and is now concluded. At this point, there is no evidence in the record regarding the settlement proposal measures which would allow any kind of reasoned analysis to determine the efficacy of the settlement offers with respect to mitigation, i.e. -- whether inclusion of such measures would enhance the mitigation of adverse impacts or whether they would cause additional unforeseen problems. The Applicant's formal proposal to the Department, not including the settlement proposals to the Town Board, must stand on its own merits at this time. Therefore, Mr. Henrickson's inclusion of the settlement letter will receive no weight in my evaluation of the project.

Also on February 12, 1998, the Applicant objected to the inclusion in the Reply Briefs of both RCEMC and Mr. Henrickson of a claim that lateral stress relief in the rock once mining begins will cause the migration of leachate from under the old town dump on the Lane property into groundwater or surface water. On February 13, 1998, RCEMC responded with a defense of its Reply Brief, as did Mr. Henrickson for his Reply Brief in a response dated February 15, 1998.

The Applicant claims that the linkage between the issue of lateral stress relief and its effect on the old town dump was never considered during the course of the hearings and that it is inappropriate to raise "new" issues at this stage of the proceeding. RCEMC and Mr. Henrickson, on the other hand, claim that they have not raised any new issues, but rather have just interpreted uncontested facts in the record and drawn their own conclusions as to what the effects of lateral stress relief might be on the surrounding environment.

In any adjudicatory proceeding, the factual matters in the record are subject to as many different interpretations as there are persons who review such facts. It is not only conceivable, but likely, that the Intervenors in this case have interpreted facts in the record which are at odds with the manner in which the Applicant would like to have those facts interpreted. In this instance, I do not find the Intervenors conclusions to be inappropriate, and they will be weighted accordingly in my analysis of the overall record.

Lastly, Intervenors RCEMC, Town of Chatham, NUCC and Mr. Henrickson have petitioned for my Hearing Report to be treated as a Recommended Decision and circulated to the parties for comment prior to issuance of a Final Decision, as provided for as an option in 6 NYCRR 624.13(a)(2). The Applicant opposes the concept of a Recommended Decision.

In this case, the parties have had a multitude of opportunities to submit comments on the Applicant's proposals, the last being with the submission of Initial and Reply Briefs of up to 75 pages and 40 pages, respectively. It is my judgment that the files generated in this matter are sufficiently complete with the comments and views of every active participant that nothing of significant value will be gained by circulating a Recommended Decision for an additional round of comments. Therefore, I recommend against the Recommended Decision option and recommend the Commissioner proceed from my Hearing Report to issue a Final Decision in accordance with 6 NYCRR 624.13(b).

FINDINGS OF FACT

With the addition of a Background sub-section, the Findings of Fact which follow in this Section of the Hearing Report are organized in the order in which the various issues were considered during the course of the hearing: Noise, Blasting, Visual Impacts, Air Quality - Dust Impacts, Air Quality - Health Impacts, Surface Water/SPDES, Old Town Dump, Groundwater and, lastly, Air Quality - Economic Impacts.

Background

1. The property under consideration in this proposal, some 136 acres northwest of the intersection of NYS Route 66 and US Route 20 in the very southeastern corner of the Town of Nassau, Rensselaer County, has been owned by the Applicant, Lane Construction Corporation of Meriden, Connecticut for many years, with a significant portion of the property being in Lane's ownership for over fifty years. Lane seeks permits to produce crushed stone aggregate at the site for use in its western Massachusetts blacktop operation, as well as for sale to local contractors, governments and consumers.
2. Lane estimates the proposed mine on approximately 119 acres of the site has the resources to supply approximately 22,000,000 cubic yards (in place) of rock to produce the desired aggregate. Lane anticipates that if permits for the proposed project are granted, approximately 23 acres of the South Hill would be affected by mining in the first five-year permit term. Depending on the rate of removal of the rock and the market for the aggregate, quarrying and crushed stone production at the site could potentially continue for 100 to 150 years or more. Approximately two-thirds of the minable rock deposits on the site are located in the South Hill area. Based upon the projected life of mine, Lane estimates that operations would continue on the South Hill for approximately 67 to 100 years before any mining occurred on the North Hill.
3. Going back to the early part of this century, Rensselaer Stone Company operated a stone quarry on the property. Evidence of this mining site is still visible, with the abandoned working face of over 100 feet in height being the most obvious clue to the quarry's existence. Additionally, there are the remnants of some of the old processing and/or loading facilities on the site, as well as evidence of the old rail bed which was used to transport materials from the site. Indications are that this early quarry operation ceased at about the time of The Great Depression in the 1930's. No stone has been actively quarried on the site since then.
4. The site consists of two promontories rising from the valley of the Kinderhook Creek, i.e. -- the South Hill and the North Hill, with a "saddle" area separating the two hills. The Kinderhook in this area is at elevations of 560 feet east of the site to 550 feet north of the site to 520 feet west of the site. The top of the South Hill is at approximately 900 feet in elevation, with the elevation of the North Hill being approximately 850 feet. The rock to be quarried from these hills consists of interbedded Rensselaer graywacke and Nassau/Metawee argillite/shale. The material of most value to the Applicant is the graywacke, a high quality hard rock suitable for a variety of construction purposes. The argillite is a much less desirable stone, but is present in much lesser quantities on the site than the graywacke.
5. The Applicant has proposed a mining plan in which the South Hill would be mined first, followed by the North Hill. Mining will generally progress from the tops of these hills downward to an elevation of approximately 620 feet or at least five feet above the highest water level in nearby adjacent water wells, whichever is higher. Mining on the South Hill will start at the top of the existing working face of the previously mined area and progress in a generally easterly and southerly direction until all the desired rock is removed from the South Hill quarry. As the mining on the South Hill draws to a conclusion, mining on the North Hill will begin. The North Hill will be mined in a generally west to east direction. An outer rim or ridge of unmined rock will remain on the easterly perimeter of the quarry on each of the hills until the last phase of mining on the North Hill, when this rim also will be removed. As the mining progresses lower into each of the respective hills, this remaining rim will serve as a buffer between the mining operations from the surrounding area.
6. In working from the top of the Hills downward, the mining process consists of first clearing the vegetation and overburden (topsoil and subsoil above the consolidated bedrock) material. These operations would be limited to relatively small areas, only large enough to accommodate approximately one year's worth of mining. The next operation is to drill holes in the upper surfaces of the bedrock into which explosives are placed. The rock is then blasted and "shot" down to the quarry floor, where it is picked up by a front end loader and dumped into an off-road quarry-type haul truck which takes the large rock fragments to the processing area. In the processing area, the large rocks are run through crushers and screens to produce various sized aggregates which are then stockpiled on the site until utilized by Lane in its construction activities and/or until sold and removed by a customer. The blasting operations will be done in a series of lifts and benches, so that after the rock in any given area at the top of the hills is removed, the drilling and blasting operations will immediately move to a lower level, where the operations will be screened from the most populated areas to the northeast and south of the site.
7. The stripped overburden materials will be stockpiled in various areas on the site. These stockpiles will be vegetated to minimize erosion and to provide a minimal habitat for wildlife. These stockpiled overburden materials will be used exclusively for reclamation purposes. As mining operations are concluded in any given area of the site, reclamation of that area will be undertaken, i.e. -- reclamation measures will be going on concurrent with mining operations. Reclamation will consist of spreading layers of the stockpiled overburden materials on the benches and mine floor and planting these areas with a variety of trees, shrubs and grasses.

Blasting and Noise

8. The sources of noise at the proposed quarry are processing equipment -- crushers, screens and conveyors, the mobile equipment -- trucks and loaders, the rock drill and blasting.
9. The Applicant proposes to utilize "portable" processing equipment which can be moved to different locations around the site as the mining progresses. By being able to periodically move the crushers, screens and conveyors to accommodate the mining plan, the Applicant will be able to position the processing equipment so as to minimize its sound producing effects on the surrounding area.
10. For most of the proposed duration of the project, the processing equipment will be shielded from the surrounding community on the north, east and south by the unmined portions of the hills. As mining progresses to the last stage in the area of the North Hill, the unmined ridge on the easterly edge of the quarry will be removed, potentially exposing the surrounding area to the east to slightly elevated noise impacts at the very end of the project.
11. The westerly side of the quarry is the most open to the surrounding environment, potentially exposing the area on the west side of Kinderhook Creek, i.e. -- the Bigelow Road area, to noise impacts from the project. Although the Bigelow Road area is quite sparsely populated in relation to the concentration of homes in Brainard and East Nassau (now encompassed in the Village of East Nassau), to mitigate these impacts, Lane proposes to construct an approximately 20 foot high berm from the overburden materials, with a constant elevation of 732 feet, as a noise and visual barrier on the western edge of the processing area. When mining operations begin, the processing equipment will be at approximately elevation 710 to 720 feet. The heights of various pieces of the processing equipment range between approximately 15 to 30 feet high, with an average height of approximately 22 feet.. Depending on the actual location and constructed height of the berm and the initial location of the processing equipment, the upper portions of the processing equipment may be at a higher elevation than the berm. Under those circumstances, the berm will have a negligible effect in mitigating noise impacts from the processing equipment, although a 225 to 325 foot wooded buffer will remain between the processing equipment and the Bigelow Road area. As mining progresses and the mine floor is gradually lowered by as much as 100 feet, the processing equipment will be relocated lower on the site and will be shielded from the Bigelow Road area.
12. The mobile equipment, haul trucks and loaders, on the site will operate almost exclusively on the mine floor. As noted above, the unmined ridge on the east side of the South Hill will shield the surrounding community from the noise impacts of these vehicles. Until the mine floor elevation in the South Hill is lowered below approximately 720 feet, the operation of these vehicles may create slight noise impacts in the Bigelow Road area. During the earliest phase of mining on the North Hill, it is possible that these vehicles may cause slight noise impacts for the community to the north and east of the site, and also to the west of the Kinderhook Creek. The Applicant proposes to minimize noise impacts from these vehicles through the implementation of the phased, directional mining plan, the maintenance of vegetative buffer zones, the use and maintenance of original equipment manufacturer specified noise control devices, i.e. - mufflers, on the vehicles and by limiting the speed at which these vehicles travel within the quarry. Additionally, rather than allow continually audible backup alarms at all times the mobile equipment is in reverse, the Department Staff would impose a permit condition requiring all Lane-owned and operated mobile equipment on the site to utilize proximity sensing backup alarms which would not activate an audible signal until an object is detected within 50 feet to the rear of the vehicle. Another proposed permit condition would require all other vehicles to follow a traffic pattern which would minimize backing up on the site, to the extent practicable.
13. The rock drill will create noise impacts in the community during the time it is operated on the peaks or top elevations of both the North and South Hills. The time this piece of equipment will spend at these high elevations on the site is a small fraction of the overall quarry operating time. During these times, it will be shielded to a certain extent by the vegetation surrounding the limited work area. However, the vegetation at the tops of the two hills is not dense, and while the rock drill is operating at the highest elevations in the quarry, there will be an opportunity for this equipment to generate noise impacts which will radiate from the peaks in all directions. This will be especially true when a new hole is being started, at the time when the entire drill rod is above the ground surface.
14. Rock drills and the amount of noise they produce vary somewhat with their design and manufacturer. The U.S. Environmental Protection Agency ("EPA") has characterized the sound power of rock drills as being between 81 and 98 dBA.A commonly used measure of the intensity of sound is the decibel, abbreviated as dB. When denoting the intensity of sound or sound pressure level as heard by the human ear, measured on the A-weighted frequency scale, the measure is abbreviated dBA. The Applicant is committed to acquire a rock drill for this project which produces a sound level comparable to or quieter than the rock drill used in the Applicant's noise analysis, which produced a maximum sound pressure level of approximately 86 dBA in the 4,000 hertz octave band and a total sound pressure level of 91.4 dBA.
15. Blasting of the bedrock is accomplished by drilling a series of holes in the rock and loading those holes with a predetermined, carefully calculated amount of explosives. The explosives in each of the respective holes are detonated microseconds apart, so that the blast impact of one is somewhat countered by the next one, etc. The Applicant does not anticipate performing more than two blasts per week. In total time, a blast will last for less than a second, although the reverberation of the blast through the surrounding countryside, at significantly reduced sound levels, could last for several seconds more.
16. The Department Staff would impose stringent blasting conditions for the quarry operation. These conditions were developed, in part, through recommendations of the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"), to minimize any adverse impacts on historic structures in the surrounding area. The permit drafted by the Department Staff would impose federal U.S. Bureau of Mines and Mine Safety and Health Administration ("MSHA") requirements limiting the air blast to 134 dB at the nearest residence, which in this instance is approximately 800 to 900 feet away from the site. To the human ear, this would represent a sound level of approximately 74 to 79 dBA. Also imposed are the federal standards limiting ground vibration. These combined standards were designed to prevent minor cosmetic damage, i.e. - the breaking of window glass, the lengthening of existing cracks in plaster, the creation of new cracks and the loosening of paint, on the weakest building materials, i.e. - plaster in old houses and gypsum wallboard in newer buildings and poorly installed windows. Additionally, the Applicant would have to ensure that no flyrock produced by the blasting would exit the site. Blasting would be limited to between 10 A.M. and 5 P.M. on weekdays only, holidays excluded. Further, all blasting will be done by a licensed blaster, and no blasts will be conducted during thermal inversions or under heavy cloud cover.
17. The principal noise source for the area around the proposed quarry is vehicular traffic on US Route 20 and NYS Route 66. The ambient noise levels, described for the purposes of this hearing in terms of LeqThe Leq is the energy-equivalent sound level which contains the same acoustic energy as the time varying sound level during a one-hour period . It is a measure of the energy-average sound level, a weighted average of noise events recorded during the period of noise measurements. , ranged from a low of approximately 50 dBA on the site to a high of approximately 72 dBA at the intersection of Routes 20 and 66, southwest of the Applicant's property, all as measured by the Applicant in 1993 and 1994. Maximum sound pressure levels at these two respective locations were measured to be 72-77 dBA on the site and 101 dBA at the intersection. The Intervenors utilized similar Leq's, particularly for the intersection, in their noise analysis.
18. Although the Department's Mining Regulations in 6 NYCRR Parts 420-425 do not contain express standards for control of noise in mining situations, the Department's Solid Waste Management Regulations, at 6 NYCRR 360-1.14(p), do contain standards which have occasionally been referenced as guidelines for noise control in other projects before the Department. This paragraph reads:

    "Noise levels resulting from equipment or operations at the facility must be controlled to prevent transmission of sound levels beyond the property line at locations zoned or otherwise authorized for residential purposes to exceed the following Leq energy equivalent sound levels:" Rural Community, 7 a.m.-10 p.m., 57 dBA

19. Another Department regulatory standard, in 6 NYCRR Part 450, "Noise from Heavy Motor Vehicles, at 450.3, allows a maximum permissible sound level reading for a heavy motor vehicle on a hard surface, such as Routes 20 and 66, of 88 dBA for a speed of 35 miles per hour or less and 92 dBA for a speed above 35 miles per hour, when measured at a distance of between 48 feet and 58 feet.
20. Two locations for which sound pressure levels received particular attention in the hearing were the Walter B. Howard Elementary School, located on Route 20, 2.46 miles east of the proposed quarry, and the Stock piano shop on Columbia County Route 13, approximately two-thirds of a mile south of the proposed quarry.
21. The school location is important, because excessive noise could be disruptive of the educational opportunities for the young children. The Intervenors measured a Leq of 50 dBA outside the school and 60 dBA inside one of the school classrooms. The sound pressure level of the rock drill outside the school was estimated to be 41 dBA and inside at 40 dBA. The blast noise outside the school was estimated to be equivalent to 56 dBA, a level which would be heard for approximately two seconds per week. The children are regularly and routinely exposed to sound pressure levels of over 90 dBA, caused by other children shouting, the school bells ringing and classroom furniture being moved.
22. Stock's piano shop is important because in some of the delicate repair work done to pianos and in the precision tuning of the instruments, conditions of extreme quiet are necessary to accomplish these tasks properly. The Intervenors measured the Leq at the shop to be 54 dBA. The sound pressure level of the rock drill at this location was estimated to be 57 dBA, while the two seconds per week of blast noise would be at a level equivalent to a range of 51 to 75 dBA.

Visual Impacts

23. Over the 100 to 150 year life of mine, the elevation of Snake Mountain will be reduced by some 280 feet. The directional method of mining proposed by the Applicant will effectively screen the majority of the mine and its related equipment from the most populated surrounding areas and the most heavily traveled roadways for most of the duration of the project. The screening will come from vegetation which remains on and around the site, from the unmined ridge along the eastern perimeter of the quarry and from the high quarry walls which will remain through much of the project. As mining in any given area is completed, reclamation measures will begin to establish vegetation which will help to camouflage the inevitable scarring which mining will leave. There will be brief periods when some of the processing equipment may be visible from the west. Additionally, the rock drill may be visible at times when it is working at the highest elevations in the quarry.
24. While it is unlikely that the effects of mining will be particularly noticeable during any given five-year permit term, the most apparent visual impact of the project in its entirety will be the gradual reduction in elevation which occurs on the site. The overall effect at the end of mining will be that the central part of Snake Mountain will have been leveled. At the northern property line on the North Hill, there will be a ridge at approximately 710 to 720 feet in elevation. At the southern property line on the South Hill, there will be a ridge at approximately 750 to 760 feet in elevation. The central mined-out portion of both hills will be at approximately 620 feet in elevation. The eastern and western ridges bordering the mined area in the North Hill will be at approximately 630 feet in elevation. The eastern boundary of the mined area in the South Hill will range from approximately 625 to 685 feet in elevation, while the western boundary of the mined area in the South Hill will range from approximately 700 to 710 feet in elevation.
25. In its advisory capacity, OPRHP issued a determination that the project will have "an Adverse Visual Impact" with respect to the historical significance of some of the properties which exist within the viewshed of the project. "Given the close proximity and topographic relationship between the mine site and surrounding historic properties, and the proposed extent of mining, the visual impact of the project is considered to be adverse. . ." Further, "in the opinion of the OPRHP there are no feasible and prudent alternatives which would avoid or satisfactorily mitigate the Adverse Visual Impacts of the Lane Mine project." OPRHP provided no substantive basis for these comments and no information on which to further evaluate the visual impact on any given historic property in the area.

Air Quality - Dust Impacts

26. Operation of a hard rock quarry involves drilling, blasting, loading and transporting rock fragments from the quarry face to the processing area, processing - crushing, screening and stockpiling, product loading and transport of such products to end users necessitating ingress and egress from the mine site by on-highway trucks. All these operations are likely to be sources of airborne particulates (dust) of varying sizes and in varying quantities.
27. The air pollutants of primary concern from a quarrying operation and processing of the rock such as proposed by the Applicant are total suspended particulates, TSP, andparticulate matter less than ten micrometersA micrometer is a unit of measurement equal to one millionth of a meter, is also known as a micron and is abbreviated by the Greek letter "mu" or . in aerodynamic diameter, PM10.The EPA has recently established standards for a new class of regulated particulates, those with an aerodynamic diameter of less than 2.5 micrometers, PM2.5. The methodology for modeling projected PM2.5 concentrations has not yet been established. The federal regulatory standards for PM2.5 will not be effective for several more years. If, at the time of their implementation, the standards are applicable to quarry operations such as the Lane proposal considered here, applicants and/or permittees will presumably have to demonstrate compliance in order to be licensed. The PM10 category is a subcategory of TSP and is distinguished from TSP by including smaller particles which are a greater health risk. The particle size of less than ten micrometers is representative of the types of particles which will be suspended in air and may be inhalable. New York State has ambient air quality standards for TSP and also settleable particulates ("dustfall"), while the federal EPA, under the Clean Air Act, has established National Ambient Air Quality Standards ("NAAQS") for inhalable particulates, PM10.
28. The Project's projected air pollutant concentrations were derived with input from emission factors for processing equipment published in an EPA document, Compilation of Air Pollutant Emission Factors, Volume I: Stationary Point and Area Sources, commonly referred to as AP-42. The Applicant's study utilized the January 1995 Fifth Edition of AP-42, including Section 11.19.2, entitled "Crushed Stone Processing". AP-42, Fifth Edition is accepted as the most appropriate source for emission factors which EPA considers to be representative of atmospheric emissions for the activities described, if as in this case, actual emission rates or manufacturer's equipment specific data on emission rates are unavailable for the processing equipment proposed to be used.
29. The September 1995 EPA "Industrial Source Complex Short Term model, Version 3", known as ISC-3, is the state-of-the-art method of modeling the dispersion of emissions from multiple sources, including crushers, screens, trucks, loaders, etc., within an area where mining is occurring. This model bases its predictions on input data of emission rates, topography, site configuration and meteorology and is capable of estimating particle concentrations resulting from mining and quarrying operations. The concentrations are estimated by computations at a series of points around the mine, i.e. - receptors, to determine where the worst case conditions occur. The computed worst case conditions are then compared to established standards, e.g. - the National Ambient Air Quality Standards and the New York State Air Quality Standards for Particulates in 6 NYCRR Subpart 257-3, to determine if the levels are acceptable. The State standards for both total suspended particulates, TSP, and settleable particulates, dustfall, are applicable to the Project's air emissions. Both PM10 and TSP can be modeled using ISC-3. Conformance with the dustfall standard must be determined after a project is operational, through measurement and sampling techniques set forth in 6 NYCRR 257-3.5 and 3.6.
30. The Applicant, in its modeling of the particulate emissions which the project could be expected to produce, ran the model four times, twice for TSP and twice for PM10. The standards apply at Lane's property line. In no instance did the Applicant find any exceedances of the standards at its property line or at any of the eight receptors which had been identified by the Intervenors as being representative of concentrations and locations of both sensitive receptors and typical receptors within the community.
31. The Intervenors, in their modeling, used several different assumptions than the Applicant did. For example, the Intervenors modeled what they termed "Stage 6," although it appears the Intervenors, for these modeling purposes, used the peak of the North Hill - the "area to be affected by Stage 6" in the Applicant's Mining Plan, as the location for the working quarry face, the entire processing plant, plus 2,500 feet of unpaved haul road and 1,000 feet of paved road. Furthermore, using these assumptions, the Intervenors ran the model several times in the "area" source mode, rather than the "openpit" source mode, as instructed by EPA for rock quarries. The area source data treats the surrounding terrain as a flat, "tabletop" surface, with no walls or berms screening the emissions sources from the surrounding lands. As noted above, the proposed Lane quarry will employ unmined walls - ridges and berms as screening devices, until the last phase of mining occurs. Additionally, the processing plant, in its entirety, will always be located in the general "saddle" area between the two hills.
32. Using the erroneous assumptions regarding the processing plant and haul roads, the results of the Intervenors' modeling were the finding of no exceedance of the annual PM10 standard of 50 micrograms per cubic meter ("g/m3") at any of the 84 different receptors analyzed. Inputting the "area" source data in one of eight modeling runs, the modeling showed one exceedance of the 24 hour highest second high PM10 standard of 150 g/m3, that being 107 g/m3, which when combined with the background of 47 g/m3, comes to 154 g/m3. The location of this modeled exceedance was right on the fence line of the Applicant's North Hill property. Additionally, the date on which this exceedance was predicted was January 14 of the year modeled, a time of year when the quarry operations would be expected to be shut down for the winter season. None of the other model runs showed any exceedance at any receptor.
33. Similarly, when modeling for TSP, with the model set for the "openpit" source data, even with the erroneous processing plant and haul road configuration, the model showed no exceedances of either the annual or 24 hour standards for TSP, 75/45 g/m3 and 250 g/m3, respectively. The modeling results, when similarly run with the "area" source data, showed 37 g/m3, plus a background of 20 g/m3, for an annual total of 57 g/m3; for the 24 hour highest second high, the model produced numbers of 238 g/m3, plus a background of 39 g/m3, for a total of 277 g/m3. These exceedances were again located on Lane's northern fence line. There were no exceedances predicted at any other receptor.

Air Quality - Health Impacts

34. The NAAQS, established under the Clean Air Act, were promulgated to set specific limits for specific pollutants. The national primary air quality standards are established at levels which, "allowing an adequate margin of safety, are requisite to protect the public health." [42 USC 7409(b)(1)] These standards acknowledge that a certain level of particulate matter is acceptable. The PM2.5 standards, although not presently in effect, are based, at least partly, on concerns that the standards for PM10 are not sufficiently protective of the public health.
35. Graywacke can contain from 50% to 90% crystalline quartz silica. The stone which Lane seeks to mine from the site has an average of 70% crystalline quartz silica. However, this does not necessarily mean that the particulate matter generated by the mining operations will have a similar 70% silica content. Because crystalline silica does not fracture as easily into the very fine particles as the other elements making up the rock, it can be the case in quarrying operations that the percentage of crystalline silica which becomes suspended in the ambient air is less than the percentage of crystalline silica in the original rock.
36. Crystalline quartz silica is a toxic air pollutant. Diseases caused or contributed to by inhalation of free crystalline silicaCrystalline quartz silica is also called "free silica" to distinguish it from the silicates , minerals containing silica bound to one or more metallic cations. include silicosis, pulmonary tuberculosis, industrial bronchitis with airflow limitation and others. Silicosis is a major disabling occupational lung disease worldwide and is not uncommon as a primary or contributing cause of death in the mining industry. Silica has recently been classified as a Group I substance, described as "carcinogenic to humans."
37. Wherever the earth's crust is disturbed and silica-containing rock is used or processed, there are potential respiratory risks for workers. Exposure to silica of respirable size occurs in quarrying and drilling operations, particularly if such activities are undertaken without appropriate dust suppression. The technology to control silica dust exposure is simple and relatively inexpensive. In drilling, quarrying and processing rock with a high silica content, a water spray on the working surfaces can effectively reduce dust levels in the breathing air of those working nearby.
38. While silicosis is not uncommon in an industrial mine or quarry setting, there is little evidence to suggest that brief or casual exposure to low levels of crystalline silica dust produces sig nificant lung disease or other adverse health effects. Both the Applicant and the Intervenors concur that silicosis has not been observed in the United States other than occupationally, i.e. - in the workplace. There is no evidence that silicosis has been observed in people who live near quarries.

Surface Water/SPDES

39. The Kinderhook Creek is one of the most valuable natural resources in southern Rensselaer County and adjacent Columbia County. It is classified as a "C(T)" stream, meaning that the best usage of its waters is for fishing, and that those waters are suitable not only for fish propagation and survival, but, with the "T" specification, that they suitable for trout propagation and survival, trout requiring a higher quality water to propagate and survive and being more sensitive to water quality variations than many other species. The water quality of a stream with this classification shall also be suitable for primary - swimming, and secondary - boating, recreation, although other factors may limit its use for these purposes.
40. Because the proposed quarry is an industrial facility and because the Applicant proposes a surface discharge of storm water which will pick up particulate matter produced by the facility, the Applicant had to apply for a State Pollutant Discharge Elimination System or "SPDES" permit. The Department in categorizing mines which produce crushed stone has, for SPDES permit purposes, included such mines as a subset of the Sand & Gravel Category. The Department has identified total suspended solids ("TSS") from such facilities as one of the parameters of concern and one which requires limitation in order to maintain the quality of the receiving waters. In its draft SPDES permit for the proposed facility, the Department Staff imposed standard effluent limits for TSS from such facilities: 25 milligrams per liter ("mg/l") average and 45 mg/l maximum. Settleable solids are also an effluent parameter of concern and the standard effluent limitation for such facilities set forth in the draft permit is 0.01 milliliter per liter ("ml/l"). The hearing testimony and evidence regarding the SPDES permit application concentrated on control of TSS and settleable solids in the storm water effluent from the proposed quarry to the Kinderhook Creek.
41. Another area of concern raised in this proceeding relates to the temperature of the of the storm water effluent and its impact on the receiving waters. Streams classified for trout are further regulated, in that at the discharge point, the effluent shall not ever exceed 70 F. Additionally, from June through September, no discharge shall be permitted that will raise the temperature of the stream more than two Fahrenheit degrees over the immediate upstream ambient temperature; and from October through May, no discharge shall be permitted that will raise the temperature of the stream more than five Fahrenheit degrees over the immediate upstream ambient temperature or to a maximum of 50 F., whichever is less.
42. The Applicant designed the storm water control system of ponds, channels and culverts to clarify storm water generated during a 10 year, 24 hour Type II storm event which would produce 4.3 inches of rainfall in this part of the Rensselaer County, and to control storm water generated during a 100 year, 24 hour Type II storm event which would produce slightly over 6.0 of rainfall at the site.
43. In the processing operations for crushing and sizing the quarried stone as proposed by the Applicant, spray bars would be used on the processing equipment for dust suppression purposes. The spray bars presumably would provide just enough water to wet the aggregate sufficiently so that dust particles would adhere to the surfaces of the crushed stone, thus minimizing the amount of dust that would otherwise become airborne. This type of dust control by spraying water on the aggregate is not considered to be "washing" the stone.
44. Due to the characteristics of the graywacke, crushing, screening and stockpiling the rock does not produce the quantity of fine particles ("fines") which are produced in crushing other types of rock. Therefore, the Applicant anticipates being able to meet DOT specifications for aggregate without washing the crushed stone. Therefore, there will be no "process water" laden with fines resulting from the operations at the proposed facility. The Applicant has stipulated to the inclusion of a permit condition in any permit which might be issued that would prohibit the washing of aggregate as a processing operation at the facility.
45. There will be a grain size distribution produced by the processing of the rock. To derive the grain size distribution for graywacke, the Applicant purchased two five gallon bucket samples of crushed rock fines from a competing crushed stone quarry located between Cropseyville, New York and Grafton, New York, in Rensselaer County approximately 19 miles due north of the Lane site. One bucket contained what was described as crusher run and the other consisted of what was called stone dust, both samples having come from the "unders" or material which dropped to the ground after going through certain stages of the crushing and screening process. The Applicant's reliance on these samples was based upon a knowledge of the rock processed at the competing quarry and a professional judgement that the rock processed at that quarry was sufficiently similar to the rock at the Lane site to be representative of what a similar sample from the Lane site would be if one was available.
46. As noted previously, the rock on the Lane site consists of graywacke and argillite. Based upon knowledge of what can be seen at the site surface and analysis of the core logs taken throughout the site, the Applicant estimates that the Lane site may contain up to approximately five percent argillite. The Intervenors believe the Applicant's assessment of the presence of argillite is underestimated and that there are higher proportions of shales interbedded within the graywacke, and further, that the rock sampled for the grain size distribution does not contain a large enough fraction of argillite to be representative of a grain size distribution for the rock at the Lane site. The importance of knowing the relative proportions of graywacke and argillite relates to the physical properties of the rocks and how the two different types of rock respond to the processing operations. The argillite, being a shale, is not as hard a material as the graywacke and when crushed will break into much finer particles than will the graywacke. Additionally there will be an unknown quantity of very fine soil particles which remain on the bedrock when the topsoil and subsoil is stripped away. This soil material will be available for transport in the surface runoff from the site during the design storm event. Thus, the Intervenors believe that for design purposes the storm water control plan for the project has underestimated the quantity of fine particles which will have to be controlled in the surface runoff in order to meet the draft SPDES permit effluent limits.
47. After the Applicant developed the grain size distribution for the particle sizes attributable to the crushing and screening of the rock, reliance was not placed solely on this information to estimate the sediment loading from the project site. The Applicant applied a factor derived from the Universal Soils Loss Equation to estimate the additional overburden soil particles which might be captured by the storm water control system and then further applied a solids concentration of 50,000 mg/l to estimate the sediment loadings which would have to be handled under the design conditions. The solids concentration of 50,000 mg/l represents the suspended solids concentration expected to be found in raw wash water discharges from crushed stone washing operations. This level of solids concentration is only achieved through the recycling of the raw wash water so that it is reused for washing before the particulate matter picked up in the prior wash cycle has an opportunity to settle out of suspension. As noted above, the Applicant will not wash the crushed stone at the proposed quarry. The Applicant used this information, in conjunction with an EPA design manual for sedimentation control, to develop estimates of the settleable solids concentrations for the sedimentation ponds upgradient of the proposed outfall to the Kinderhook Creek.
48. The Applicant acknowledges that if the facility, using wet suppression for dust control, was operating at maximum capacity, producing approximately 350,000 tons of crushed stone per year, the processing activities could conceivably generate up to approximately 17 tons per year of particulate matter with a diameter of less than 30 micrometers and approximately 0.6 tons per year of inhalable particulates with a diameter of less than 10 micrometers. These smaller particles would be dispersed into the atmosphere, and as has been shown by the air quality analysis, would fall back to earth as dust deposition predominately over the site. These very minute particles on the site surface would be available for transport in the surface runoff from the site during the design storm.
49. The Applicant did not incorporate the air quality information regarding particulate deposition on the site into the storm water control plan. When directly questioned regarding the lack of input regarding dust deposition, the Applicant represented that the 50,000 mg/l factor applied to the sediment loadings estimates was conservative enough to account for any airborne particles which happened to be deposited in areas where they would be picked up by the storm water control system. The Applicant's proposed system is designed to capture only particles down to the 11 micrometer size. Smaller particles are notoriously difficult to capture in a storm water control system, because tiny particles of ten micrometers or less in diameter typically do not easily settle out once they are entrained in the water column. The Intervenors opined that there is a potential for a high percentage of these minute particles to be carried in the runoff effluent to the point of discharge into the Kinderhook Creek where through turbidity and eventual deposition on the streambed they could adversely affect the water quality and streambed habitat and food sources necessary for maintenance of a trout fishery.
50. The Applicant's storm water control pond system design is such that, while the design particle is 11 micrometers in diameter, the two primary sedimentation ponds in the portion of the system eventually leading to the main outfall at the Kinderhook Creek will remove particles down to the five and six micrometer size. Under the design conditions, this main discharge is predicted to provide effluent levels of 7.0 mg/l of total suspended solids and 0.001 ml/l of settleable solids. In comparison, the 116 square mile drainage area of the Kinderhook Creek upstream of the site annually contributes hundreds of tons of sediment directly to the Creek through the uncontrolled runoff of particulate matter, a portion of which is comprised of very fine particles, from agricultural fields.
51. Although the storm water control plan does not foresee the need to use flocculants,Flocculants or flocculating agents are reagents added to a dispersion of solids in a liquid to bring together the fine particles to form flocs or small masses of fine suspended particles formed in a fluid through coagulation, agglomeration or biochemical reaction. when confronted with a question of how to control very small particles in the storm water runoff, the Applicant suggested that such particles could be easily controlled with the use of flocculating agents. There are flocculating agents available which are approved for use at water treatment plants, but it is unknown what the efficacy or environmental consequences of using such agents would be, particularly with respect to the relatively uncontrolled environment of the storm water control system. The Applicant also suggested that the use of hay bales in the discharge channels could effectively remove a large portion of the very small particles from the discharge effluent, should their presence become a problem.
52. The Kinderhook Creek is a stream which undergoes considerable thermal stress in the summertime. These stresses usually manifest themselves during very warm and dry meteorological conditions, when, with an absence of rainfall and good evaporative conditions, there are low flows in the stream. The Department Staff has recorded stream temperatures in the Creek in the vicinity of the project site of as high as 80 F. following several days of 90 F. daytime air temperatures. Nighttime cooling can reduce those stream temperatures by several degrees. During any warm, dry period any water in the storm water control system detention ponds could potentially heat to over 70 F. A severe thunderstorm event under these circumstances could cause a heavy rainfall in a short time, which could trigger a release of warm water from the detention ponds. Some of this water could be expected to infiltrate into the ground surface and the remainder would likely be intermixed with other runoff waters prior to its discharge into the Creek.

Old Town Dump

53. Anecdotal accounts and aerial photographic evidence from 1960 which were initially brought to the Applicant's attention in 1992 indicate the presence of an old dumping area which was apparently operated by the Town of Nassau on the Lane site in the area of the present access road off Route 66. The approximately one-half acre dump site is south of the existing access road and between the old rail bed to the west and the Niagara Mohawk Power Company right-of-way to the east. The southern boundary of dumping was observed, by locating metal objects protruding from the banks, to be in or near an existing drainage channel. The Applicant has visually examined the area, along with local residents who were familiar with the dumping operations, and confirmed that, although now overgrown with vegetation, the suspected dumping area contains discarded articles, including an older model car. The dump site is thought to be approximately ten feet deep and is believed to contain typical mixed household garbage, including "white goods," i.e. - stoves, refrigerators, washers and dryers, etc. There is nothing in the hearing record to indicate the presence of hazardous materials in the dump site. The precise boundaries of the dump site, the nature of its contents and the presence or absence of any leachate and/or decomposition gases, however, were not positively identified for the record.
54. When used several decades ago, the dump site was not regulated by the Department, i.e. - its use predated the adoption of the Department's solid waste management facility regulations. Currently, the Department has not designated the dump site as a hazardous waste disposal site requiring any sort of remediation.
55. The quarrying activities proposed by the Applicant avoid the dump site and will not disturb the materials emplaced there. There is no mining planned to ever occur in the area of the dump site. The Applicant proposes to place low permeability fill over the dump site and regrade the area to promote positive drainage patterns around and off the dump area, thus reducing the potential for infiltration of rain water and surface water into the dump site. The low permeability cap would be covered with topsoil and seeded.
56. The proposed storm water control plan would route storm water around the dump site by construction of a swale, the sides of which would be armored with rip-rap to minimize erosion of the sloping bank of the abutting old dump site. The swale is proposed to be approximately four feet wide and two feet deep, with 3:1 side slopes and would carry storm waters during the design storm with a peak velocity of 8.71 cubic feet per second ("cfs"). There is no reason that such a swale cannot be properly engineered to handle flows with the estimated peak velocity. However, if the swale is not properly maintained, there is a possibility that the erosive power of the storm water flowing through this channel could, over the course of time, begin to erode the bank of the abutting dump site.
57. As further discussed below, the removal of rock from the upper elevations of the quarry will diminish the compressional stress which is now imposed on the underlying rock. The cracks and fissures in the rock at the surface of Snake Mountain are well defined and may range in width at the surface from the thickness of a sheet of paper to one millimeter on the North Hill and up to one-quarter to three-eighths of an inch on the South Hill. The cracks and fissures in the underlying rock, at depths of 200 to 250 feet, are now tightly pressed together due to the great weight of the rock mass which lies above. As quarrying would occur from the tops of the hills downward, the weight of the overlying mass would be removed, and the cracks and fissures at depth would then be expected to expand in width under a phenomenon known as lateral stress relief. As mining would progress to the 620 foot elevation, it is anticipated that the widening of cracks and fissures would occur in the mined area and possibly 300 feet beyond. As these cracks and fissures widen, they have the ability to hold and transmit more ground water than when they are tightly squeezed together under compression. The Intervenors speculate that additional groundwater in the area of the old dump site could generate leachate which might impact groundwater quality, surface water quality and ultimately the Kinderhook Creek.

Groundwater

58. With the particles which make up the rock being highly compressed and extremely tightly packed together, the graywacke has negligible primary porosity, i.e. - there is no pore space between these particles. The water holding capacity of the graywacke lies within the cracks and fissures described above, i.e. - secondary porosity. The graywacke is a naturally fractured, jointed medium, and even where the cracks and fissures are tightly spaced at depth, the bedrock provides significant water storage. Due to the very low permeabilities found in the graywacke at depths of 200 to 250 feet, on the order of 10-5 to 10-6 centimeters per second ("cm/sec"), groundwater flow downward through the hills is very slow.
59. The water table within the two hills roughly mimics the surface topography, although with a lower profile. The groundwater within the hills is recharged through infiltration through the cracks and fissures, as demonstrated by the groundwater's elevational response to precipitation events, characteristic of an unconfined aquifer. The water levels within the two hills are highest in the spring and at lower elevations in summer and fall.
60. Groundwater discharges from the two hills in a radially outward pattern. On the northeast, north and west sides of the site, the groundwater discharges to the Kinderhook Creek, where the Creek functions as a groundwater divide. On the south side of the site the groundwater divide for the water stored in the two hills is located in an unnamed tributary of the Kinderhook Creek which is just south of and roughly parallels Route 20 through Brainard. On the east and southeast, the groundwater divide is located slightly to the east of and generally parallel to Route 66, eventually joining with the Kinderhook Creek again in East Nassau.
61. The Applicant did not conduct any pumping tests in core holes or drill any other monitoring wells on the site to determine the direction of groundwater flow. Groundwater flow direction in the various portions of the site was inferred from the topographic relief of Snake Mountain, from the elevation of the water in the onsite borings and from the elevation of water in the residential wells on the periphery of the site.
62. As noted above, when bedrock at the top of the hills is removed by mining, the compressional stress on the underlying bedrock will be reduced, allowing the joints, cracks and fissures within the newly exposed bedrock to open wider and allowing lateral stress relief to open new or existing cracks beyond the perimeter of the quarried area. For this reason, the removal of storage capacity as the upper bedrock is mined may not significantly decrease storage in the lower lying bedrock, because over time the increase in secondary porosity may compensate for the removed storage. Likewise, as the elevational head is removed or head pressure decreases, there may not be a significant effect on the discharge of water from the two hills, because as the cracks open up at lower elevations, the permeability of the rock will increase and less head pressure will be needed to maintain the same rate of discharge.
63. During the early stages of mining, a function of the storm water control system, beyond clarifying and controlling the runoff from the mine site, is to minimize the collection of water on the mine floor. During these phases of the proposed mining plan, infiltration into the quarried area would be reduced from the pre-mine conditions. Once the mine floor reaches approximately elevation 720 feet, surface water on the mining area will be directed to a sump in the quarry floor, where it will evaporate, infiltrate the cracks and crevices on the floor to become ground water, or as may become necessary, be pumped to other on-site storm water control facilities. It is possible that infiltration may be slightly increased over the early stages of mining, but will still likely be less than pre-mine conditions. When mining is concluded and the quarry is reclaimed, the approximately 119 acres of mined area will be available for recharging the underlying groundwater resources. Infiltration then would potentially be slightly increased over pre-mine conditions, as due to the near total reduction in runoff from the site, much of the precipitation which falls on the quarry floor will be available for recharge once the soils used for reclamation are fully saturated. With the flat configuration of the reclaimed quarry floor, there will be a net increase in evapotranspiration, but with more precipitation captured on the flat surface, there is more water potentially available for recharge, thereby offsetting the increase in evapotranspiration.
64. The nearest residential wells to the quarry are at the Kie and Salvi residences along Route 66, generally east of the South Hill. These wells are located in glacial till deposits and have static water levels at approximately 620 feet in elevation. The mine floor will never be below elevation 620 feet, in order to ensure the water levels in the Kie and Salvi wells are unaffected. The Applicant proposes to monitor the Kie and Salvi wells for as long as the homeowners allow them to. If the static water level in the Kie and Salvi wells rises during the course of the mining operations, the level of the mine floor will be adjusted upward to a higher elevation.
65. The Applicant has suggested a series of conditions for a well arbitration agreement, the concept of which has been endorsed by the Department Staff, which would guarantee the opportunity for any proximal well owner within a radius of one-half mile of the site to participate in arbitration proceedings should they allege that their well had been adversely impacted by the quarry and its related operations. At hearing, the Applicant agreed that any well arbitration agreement which may be adopted would be in effect for the life of the mine, rather than the ten year period originally proposed. The Applicant further agreed that the agreement would pertain to the land, regardless of the ownership of the properties in the future.
66. The Intervenors asserted that the well arbitration agreement is heavily biased in favor of the Applicant. At hearing, the Intervenors suggested the agreement could be improved by including provisions that would involve the local public health officials, i.e. - the Rensselaer County Health Department, in the arbitration process.
67. The Intervenors further suggested that the neutrality of the arbitrator, proposed by the Applicant to be a hydrogeologist, could be questionable, since much of the work performed by hydrogeologists is done in conjunction with firms involved in the mining and aggregate business. The Intervenors indicated that a more neutral party, i.e. - someone whose livelihood does not rely in whole or in part on business from the mining industry, should serve as the arbitrator of such matters.

Air Quality - Economic Impacts

68. The national secondary air quality standards are established at levels which are "requisite to protect public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." [42 USC 7409(b)(2)] These secondary standards are designed to address those air quality issues not directly related to human health. As cited above, these standards too acknowledge the acceptability of a certain level of particulate dust in the ambient air. The Intervenors concerns that dust emissions from the quarrying operation will have adverse economic impacts on local residents are based largely on the perception that dust particles generated by the quarry will adversely impact their homes, businesses and livelihoods.
69. As examples of how the perceived economic impacts would manifest themselves, the Intervenors analyzed four nearby businesses: Stock's piano shop in Brainard, the Lloyd Artist Workshop in East Nassau and two horse breeding farms, Cross Creek and Fawn Ridge, both located north of the proposed quarry. At none of these locations did the Applicant or the Intervenors project any exceedances of either the primary or the secondary standards set forth in the NAAQS for PM10 or the New York State standards for TSP. In fact, at each of these locations, both the Applicant and the Intervenors modeled particulate levels potentially attributable to the quarry operations to be substantially lower than the applicable standards for PM10 and TSP. Even when the background levels of particulates are factored into the projection, the anticipated levels of PM10 and TSP at each of the referenced locations are well within the applicable standards.
70. While it was shown by the Applicant that real estate values are not necessarily adversely impacted by the proximity of a quarry operation, it is worth noting that the bywords in real estate are "location, location, location." There may well have been other overriding factors in the study referenced by the Applicant which sustained the real estate market in the face of the nearby quarry. At any rate, a study done in the suburban Poughkeepsie area has little relevance to the real estate market in the rural community of East Nassau. Anyone driving through the community can observe the proportionally large number of real estate signs in front of residences. Even though there may not be predictions of problems with particulate emissions from the proposed quarry, the perception that such problems may occur can still have the effect of causing properties to be on the market longer than they might otherwise be and can depress the selling prices for those properties.
71. In the development of the NAAQS, EPA took express notice of the potential impact of excess particulate matter on articles of fine art. Fine particulate matter, particularly quartz dust which is very hard and abrasive, can invade the painted surfaces of artworks and degrade the paint. The finish on furniture, including antiques and pianos, can be damaged by just dusting the surface if there is an accumulation of quartz dust on the item. Certainly, some of the piano restoration and refinishing work done at Stocks and the artworks produced at the Lloyd Studio must be considered as fine art. The projected total PM10 and TSP particulate levels at each of these respective locations is a fraction of the allowable standards which are designed to protect non-health related air quality issues.
72. Horses are very good at expelling large particles from the upper portion of the respiratory tract, but have difficulty expelling small particles from the lower respiratory tract where the airways are narrow. Horses are sensitive to very small particulate matter, on the order of 5 micrometers or less. When this size particle lodges in the lower respiratory tract of a horse, pathology commonly occurs causing respiratory/pulmonary inflammation and disease and requiring treatment by a veterinarian. If a young horse is subjected to a low grade exposure to breathing these small particles over a period of time, it can develop chronic obstructive pulmonary disease and suffer a diminishment of its athletic ability. The reduction in athletic ability may not be obvious at an early age, but may manifest itself later in years, as when the horse is racing and its respiratory tract is stressed to the maximum. Such damage may not prevent a horse from racing, but it may prevent the horse from racing profitably.
73. The horse farm nearest the proposed quarry is approximately two-thirds of a mile to the north of the Lane property. Based on the information in this record, and given the comparative differences in the respiratory tracts of humans and horses, it is unknown if the standards set forth in the NAAQS are equally protective of humans and horses. There are no predicted exceedances of the air quality standards for PM10 and TSP at either of the horse farms.
74. The "horse community" is driven by perception. If there is a perception that horses are being bred and raised in an environment which could ultimately diminish their athletic ability, owners and trainers will shy away from doing business with establishments which are located near the perceived environmental problems. In this instance, even if there are no air quality problems at a horse farm, the breeders may not be able to sell a horse that does have good racing potential or may not be able to command an appropriate price for such an animal.
75. Quantifiable exceedances of a governmentally established dust standard are not a necessary condition for there to be economic impacts in the community. Economic impacts will result from the economic decisions made by people based on their own perceptions of the environmental, health and other potential impacts of the dust generated by the proposed quarry. The owners of each of the four businesses cited above have stated that they would not be able to remain in business at their current locations if the Lane quarry is permitted to operate. The four businesses provide employment for a total of 18 people and directly contribute a conservative total of approximately $300,000 annually to the local economy.

CONCLUSIONS

Blasting and Noise

1. The Applicant has proposed a variety of mitigation measures in its mining plan which would effectively reduce the noise levels attributable to operation of the proposed quarry. These measures include, among other features, the mine design with the retention of high walls and location of the processing equipment low in the mine to buffer the operational noise from the majority of the surrounding community, maintenance of vegetation wherever possible, elimination of continuously audible backup alarms in preference of proximity sensing backup alarms, commitment to use a rock drill equivalent to or quieter than the one used in the noise analysis and minimization of blasting to an anticipated two blasts per week.
2. As identified in the Findings of Fact, there would be some noise impacts associated with the operation of the quarry. The Bigelow Road area to the west of the site would have the most exposure to the operational noise impacts, at least during the early stages of mining. The Bigelow Road area is also the least populated of the areas surrounding the site. In the last stage of mining, when the previously unmined ridge on the eastern perimeter of the quarry would be removed, the populated area of East Nassau along Route 66 would be exposed to noise impacts. The rock drill, when operating at the tops of the hills, would create noise which would radiate to all the surrounding area. The Applicant would use, in the spectrum of quietest to noisiest, a relatively quiet rock drill, and would minimize the time the rock drill spends at the peaks of the hills. Blasting would be done approximately twice a week. The blast noise would not be excessive, and would be audible for only several seconds per week.
3. When compared to the noises which people may be exposed to in the course of their daily activities, most of the noise generated by the quarry operations over the life of mine should not be a significant intrusion for most people. To be sure, there are some people who are more sensitive to noise than others, and for these people, any noise from the quarry could be a constant nuisance. At the Walter B. Howard Elementary School, any noise from the quarry should not adversely affect educational opportunities. At the Stock's piano shop, most of the quarry noise would be effectively buffered by the mass of the South Hill that would remain between the quarry and the shop. However, it can be anticipated that during the times the rock drill is operating at the peak elevations on the hills, the Stocks would experience an increase in noise levels which could cause a temporary interference with some of the tasks which must be performed on their instruments.
4. The Applicant's proposals for abatement of the noise impacts of the quarry operations should avoid or mitigate those impacts to the maximum extent practicable.

Visual Impacts

5. With the mitigating features incorporated into the Applicant's mine plan, the quarry operation's short term effects on the viewshed would not be significant. However, the overall long term effect of essentially leveling a prominent geographic feature in the community of East Nassau would be a significant adverse impact on the character of the community. In the words of OPRHP, "there are no feasible and prudent alternatives which would avoid or satisfactorily mitigate the Adverse Visual Impacts of the Lane Mine project." In other words, the end result of removing the rock from Snake Mountain so that it can be utilized for construction purposes is that the elevation of the hills must be reduced. There is no way the project can be accomplished and that ultimate adverse visual impact can be mitigated at the same time.
6. I conclude that, with the Applicant's sequential and directional mining plan proposals, the visual impacts of the project would be mitigated to the maximum extent practicable.

Air Quality - Dust Impacts

7. In four model runs, all of which used very conservative inputs and in which the model was correctly run in the "openpit" source mode, the Applicant's modeling results showed no exceedances at any of the selected receptors of the regulatory standards for either PM10 or TSP.
8. In eight model runs, using even more conservative inputs, the Intervenors modeled one exceedance of the 24 hour standard for PM10. That modeled exceedance only occurred when the model was run in the incorrect "area" source mode, and with a totally unrealistic configuration which compressed the quarry face, the processing plant, plus 2,500 feet of unpaved haul road and 1,000 feet of paved haul road, all within a rectangular area at the peak of the North Hill. This is not only a configuration for the quarry which the Applicant has never proposed, but a configuration which would be virtually impossible to ever achieve. Even with these erroneous inputs, the exceedance was predicted to occur only a few hundred feet away, at the Applicant's northern property line, and at a time of year - January - when processing operations at the quarry would normally be closed for the winter.
9. Using the same erroneous inputs, and with the model in the incorrect "area" source mode, the Intervenors modeled one exceedance each of the TSP annual and the 24 hour standards. Again the exceedances were predicted to occur at the Applicant's northern property line in January.
10. I conclude that the Applicant has demonstrated that the quarry could be operated with no exceedances of the applicable standards for either PM10 or TSP. Under these circumstances, an air permit for the proposed project could be issued.

Air Quality - Health Impacts

11. Crystalline quartz silica is found in the graywacke on the site. Crystalline quartz silica is a toxic air pollutant and has recently been classified as a Group I substance, described as "carcinogenic to humans." Inhalation of free silica is known to cause silicosis, among other respiratory/pulmonary diseases. The only setting in the United States where silicosis has been observed is in the industrial workplace. Silicosis is an occupational disease.
12. The recommended method for controlling dust which may be comprised of silica particles is by using a water spray. The Applicant would be required to use spray bars to reduce the quantity of particulate matter which otherwise might be released into the air during the rock processing operations. Since the quarry employees would be those most at risk from exposure to crystalline quartz silica, it is suggested that in the absence of any explicit workplace regulations for quarries which are not administered by the Department of Environmental Conservation, e.g. - Occupational Safety and Health Administration ("OSHA") or Department of Labor regulations, the Applicant should consider additional measures to protect the quarry workers from the effects of free silica.
13. There has been no showing that the air emissions from the proposed quarry would cause or contribute to any adverse health impacts in the surrounding community. The proposal is predicted to meet the national primary air quality standards which were developed to protect the public health. The newest standards for PM2.5, which are even more protective of the public health, are not yet in effect. If, when they become effective, they are applicable to a quarry such as is proposed here, the Applicant would have to demonstrate compliance with the standards in order to receive the necessary permits to operate such a facility.

Surface Water/SPDES

14. Based upon professional judgement, the Applicant used samples of crushed rock from a competing quarry to develop a grain size distribution which it believed would be representative of the rock at the site. However, the Applicant did not rely solely on this grain size distribution to design the storm water control system. The Applicant calculated the potential loss of soil particles using the Universal Soils Loss Equation and then additionally applied a 50,000 mg/l sediment concentration as input to a computer model to estimate the sediment loadings which need to be controlled through the system. The 50,000 mg/l sediment concentration represents a significantly higher concentration than that which will actually occur at the proposed quarry because no washing of the aggregate is anticipated or will be allowed at the site.
15. A condition which would exist at the proposed quarry which was not directly factored into the Applicant's sediment loading estimate, however, is the generation of fine particulate matter that would first be dispersed into the atmosphere, from where it would fall back to earth, predominately over the site. This particulate matter, the TSP and PM10 discussed in the air quality sections of this Report, would be available on the site for transport by precipitation and runoff in the storm water control system. More than one-half ton of this particulate matter would be in the size range of ten micrometers or smaller. These very fine particles are typically difficult to capture in storm water control systems, because once they are suspended in the storm water, they do not readily settle out of suspension.
16. The Applicant's SPDES calculations were conservative enough to accommodate any additional sediment loadings from the dustfall of airborne particulates over the site. The Applicant modeled a 50,000 mg/l sediment concentration at the beginning of the sedimentation pond system, i.e. - the equivalent of introducing very muddy water to the system. A 50,000 mg/l concentration is the same as 50,000 parts per million ("ppm"), or equal to five percent solids. In actuality, the solids concentration in the storm water control system will be much lower than five percent. Nevertheless, under the modeled conditions using the 50,000 mg/l concentration of sediments, the calculations showed that the SPDES permit effluent limits for total suspended solids and settleable solids would not be exceeded, with a comfortable margin of safety.
17. The Intervenor's concerns over the potential impacts of the sub-ten micrometer particles on the Kinderhook Creek are clearly unwarranted. The Applicant's sedimentation analysis demonstrated that the primary sedimentation ponds at the beginning of the portion of the system which includes the outfall to the Kinderhook Creek are capable of removing particulate matter as small as five and six micrometers in diameter from the effluent. While this portion of the system would not remove all of the very fine particulates which could fall on the site and potentially be transported through the system, the overall impact on the Kinderhook Creek from this source of particulate matter would be negligible, particularly in comparison to agricultural runoff, which in the 116 square mile watershed upstream of the site alone annually carries hundreds of tons of sediments into the Creek waters. Moreover, the storm water control system will limit the particulate concentrations to be within the SPDES permit levels, which assure that the water quality of the Creek will be protected.
18. The Applicant stated for the first time at the hearing that if very fine particles ever did become a problem in the storm water discharge, flocculating agents could be added to the detention ponds to bind the minute particles into larger groups of solid matter which would then more readily settle out of suspension. This action could supposedly provide sufficient clarification to the discharge waters so that the proposed effluent limits would always be satisfied. There is no information in the record to support the use of flocculants in the storm water control system, and further, there was no analysis provided by the Applicant of what impacts the use of such flocculating agents might cause to the Kinderhook Creek. Proper maintenance of the proposed storm water control system should obviate any consideration of the use of flocculating agents. If, in the future, there was a determination that the use of such reagents might be desirable, the Applicant would have to specifically request authorization from the Department Staff prior to their use. Any such request would necessitate a thorough analysis of the impact of such flocculants on the surrounding environment, and particularly, the Kinderhook Creek. The Applicant's suggestion that the use of hay bales in runoff channels could efficiently trap fine particles is meritorious and could be implemented at any time to further reduce any level of sediment loading in the storm water discharges from the site.
19. During extended hot and dry conditions, any water stored in the detention ponds on the site could easily warm to temperatures in excess of 70 F. There is a potential that a severe thunderstorm event could cause a release of this warm water from the ponds. On the hearing record, the Applicant calculated that the release of 90 F. water from the ponds would have a negligible effect on the temperature of the Kinderhook Creek. It is very unlikely that the ambient temperature of the water in the detention ponds would ever reach 90 F. In the event warm water was released from the ponds, under the conditions which could be anticipated, some of the runoff water would infiltrate the ground before reaching the Kinderhook Creek, and the remainder would be intermixed with other cooler runoff water prior to discharging to the Creek. Under these circumstances, since the summer water temperatures in the Kinderhook Creek routinely exceed 70 F., it is unlikely there would be any significant adverse thermal impacts to the Creek.
20. The Applicant's SPDES calculations are conservative and have adequately taken into account the very fine airborne particulates which will become dustfall over the site. The design of the storm water control system is sufficient to ensure compliance with the effluent limits for total suspended solids and settleable solids proposed by the Department Staff in the draft SPDES permit. Furthermore, thermal impacts to the Kinderhook Creek from the storm water discharge are unlikely. Therefore, I conclude that potential significant adverse environmental impacts on the Kinderhook Creek have been avoided, minimized or mitigated to the maximum extent practicable with respect to the storm water control system. Under these circumstances, a SPDES permit for the proposed project could be issued.

Old Town Dump

21. Lane has owned the property for more than 50 years, a time period which includes the years when the dump site was being actively used. One can understand how Lane, as an absentee owner, might have missed a year or two of dumping on its property, but it is hard to imagine that Lane was only first apprised of the dumping activities in 1992.
22. The Applicant has relied on an old aerial photograph, along with a surficial examination, to determine the approximate areal extent of the dump. Lane has sought out anecdotal evidence to characterize the contents of the dump. This information indicates that typical household refuse and trash were disposed at the site. No information was provided to the Applicant to indicate that any hazardous materials were disposed there.
23. With the dump being uncapped and exposed to the elements for the last 30 and 40 years, any leachate which might produce adverse impacts in the environment is likely to have ceased many years ago. Likewise if any significant quantity of decomposition gasses was present at the site, such gasses would likely be detectable by their odor, i.e. - one of the most common landfill gasses being hydrogen sulfide, H2S, with the smell of rotten eggs. The Applicant proposes to leave the dumped materials in place and undisturbed and to cap the dump site with a relatively impermeable soil material to minimize the percolation of water through the dumped materials. The cap materials would extend over the entire top and exposed sides of the dump site and would then be covered with topsoil and seeded. This type of cover material would promote positive drainage off the dump site and minimize any production of leachate.
24. The lateral stress relief discussed in the Findings of Fact would not introduce additional groundwater to the dump site to produce leachate as posited by the Intervenors. The opening of cracks in the bedrock around the perimeter of the mined area will allow for increased recharge of the groundwater which is resident within the cracks and fissures of the bedrock. Any increase in infiltration to the groundwater regime will be downward through these cracks and away from the perimeter and base of the dump site.
25. I conclude that the Applicant's proposed capping of the dump site and routing of storm water around the perimeter of the capped site in an armored channel is an appropriate measure to isolate the dumped materials from the surrounding environment and minimize infiltration of surface water into the dumped materials. This proposal would avoid and/or mitigate any significant adverse impacts to the environment to the maximum extent practicable. Additionally, the Applicant has another option which might be practicable. If the dump site, as stated for the record, is only approximately one-half acre and ten feet deep, total removal of the dumped materials to an approved solid waste management facility might prove feasible and would then totally eliminate a cause for local concern.

Groundwater

26. The Applicant performed a water balance calculation for precipitation, infiltration and runoff on the site for the conditions at the start of mining and at the conclusion of mining. The Applicant has used these calculations to project that at the end of the mine life there would be slightly more recharge than at the start of mining, based on the flat configuration of the reclaimed mine floor capturing more precipitation than the present hilly terrain does. The record indicates that during various stages of mining there is a potential for there to be less infiltration to groundwater and recharge of the underlying bedrock aquifer than is currently available. The import of this potential diminishing of the recharge during a portion of the operational phases of the quarry is insignificant. The groundwater elevation in the underlying bedrock roughly mimics the topography of the ground surface. As long as the mine floor elevation remains above the static level of the water in the nearby wells, to be assured by monitoring those wells, and the static levels remain relatively unchanged, there is little consequence to the groundwater flow at elevations below and laterally separated from the bottom of the quarry.
27. The Applicant has not installed any groundwater monitoring wells or performed any pumping tests in the core holes on the site to determine the direction of groundwater flow. The Applicant has reasonably relied on empirical data, professional judgement and theory to predict the groundwater impacts, or lack thereof, which might result from the proposed project. I note, though, that the Applicant has raised the possibility that it might not be permitted to monitor the static well water levels in the present Kie and Salvi wells, if ownership of those properties should change in the future. If such an occurance arises, the Applicant should install one or more monitoring wells on the periphery of its property in order to be able to maintain the ability to monitor the impact of mining on the nearby groundwater regime.
28. The well arbitration provisions proposed by the Applicant, as modified at the hearing to be applicable to the land, not an individual owner, and to be in effect for the duration of the life of the mine, are appropriate measures which could provide proximal well owners with an opportunity for redress in the event of well water problems allegedly caused by the quarry and its related operations. The Department Staff's draft permit has included a provision for the Rensselaer County Department of Health to be an involved party in the development of a final agreement. The details of such an agreement should be further developed and finalized by these representatives, i.e. - the Applicant, the Department Staff and the Rensselaer County Department of Health, to provide equitable protection for the proximal well owners.
29. The groundwater regime in and around the site is sufficiently characterized in the record before me to reasonably conclude that, with respect to groundwater and nearby wells, all significant adverse impacts have been avoided or mitigated to the extent practicable.

Air Quality - Economic Impacts

30. The four businesses cited in the Findings of Fact have apparently decided that they would not be able to remain in business in the local area if the quarry becomes operational. It is quite possible that others may feel the same way. Thus, if the project goes forward, there will be unavoidable economic impacts in the surrounding community, based at least in part on perceptions that the quarry would cause environmental harm, especially resulting from the particulate matter which the quarry would generate, whether or not the proposal meets the applicable permitting standards.

DISCUSSION

The Applicant's quarry proposal as considered by the various parties in this case through voluminous testimony, multitudinous exhibits and lengthy post-hearing briefs is arguably one of the most studied and intensely analyzed mining projects ever to come before the Department. The complaints of the Intervenors that the applications for the various permits are incomplete represent a fundamental misunderstanding of the term "complete application" as defined in the Department's Uniform Procedures Law in ECL Article 70 and the implementing regulations in 6 NYCRR Part 621. The ECL definition at 70-0105 is: "'Complete application' shall mean an application for a permit which is in an approved form and is determined by the department to be complete for the purpose of commencing review of the application but which may need to be supplemented during the course of review as to matters contained in the application in order to enable the department to make the findings and determinations required by law." This definition is closely mirrored in the regulations at 6 NYCRR 621.1(d). In other words, the applicable law and regulations anticipate that applications for permits may not be perfect when submitted to the Department, but even without reaching perfection, they can be deemed complete enough to commence the required review. Through the review process, of which an administrative permit hearing is an integral part, the law and regulations expect that any gaps in an application will be filled sufficiently to allow a reasoned decision on the application.

The evidentiary standard to be applied in an adjudicatory administrative permit hearing is one of a preponderance of evidence, i.e. -- the greater weight of evidence or evidence which, when fairly considered, is more credible and convincing to the mind.

The Intervenors in this case have criticized virtually every aspect of the issues certified for adjudication. This criticism has been helpful in focusing attention on those subject areas which required the development of additional information through the hearing process. A healthy exchange of expert testimony and professional interpretation of a variety of factors relating to these issues has occurred.

At the conclusion of the hearing process, the views of the parties have not changed. The Applicant believes it has met its burden to receive the required permits for its proposal. The Department Staff supports the issuance of such permits. The Intervenors remain unalterably opposed to the project and maintain the Applicant has not met it burden to receive any permits, and therefore, the project must be denied.

In my estimation, as set forth in my Findings of Fact and Conclusions above, the Applicant has met its burden of proof and demonstrated in the record of this proceeding that the project will comply with all applicable statutory and regulatory requirements. Therefore, the Applicant is entitled to receive the requested permits.

RECOMMENDATION

On the basis of the record compiled in this matter, and the foregoing Findings of Fact and Conclusions, I recommend that the applications of the Lane Construction Company for air quality, SPDES and mined land reclamation permits to operate a hard rock quarry in the Town of Nassau, Rensselaer County, New York be approved as conditioned by the draft permits proposed by the Department Staff and as further modified in this Hearing Report/Final Environmental Impact Statement.

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