STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In The Matter
-of-
the Application for a Mined Land Reclamation Permit Pursuant to Environmental Conservation Law Article 23 Title 27

- by -

PREBLE AGGREGATE, INC.

DEC Project No. 7-1136-00007/00001

INTERIM DECISION

September 7, 1995

INTERIM DECISION

Preble Aggregate, Inc. (the "Applicant"), and the Song Lake Association (the "Association") have appealed from the rulings of Administrative Law Judge ("ALJ") John H. Owen, dated June 26, 1995.

The Applicant seeks issuance of a mined land reclamation permit, pursuant to Environmental Conservation Law ("ECL") Article 23 Title 27, for a sand and gravel mine which would be located in the Town of Preble, Cortland County. The Applicant appealed ALJ Owen's ruling that "the loss of prime agricultural land versus the need for gravel" would be an issue for adjudication in the hearing. That ruling is affirmed. The Song Lake Association appealed the ALJ's denial of its request for party status in the adjudicatory hearing. That ruling is reversed. The matter is remanded to ALJ Owen for further proceedings.

ALJ Owen's June 26, 1995 rulings were made following Notice of Completion of a Supplemental Environmental Impact Statement ("SEIS") in January 1995, a legislative hearing on the SEIS in February 1995, and an issues conference in April 1995. Because ALJ William J. Dickerson retired in April 1995, ALJ Owen was assigned to this case for purposes of the issues conference and subsequent proceedings.

Applicant's Appeal

The Applicant's appeal asserts that no substantive and significant issues have been raised for adjudication regarding the loss of prime farmland versus the need for gravel. The Applicant stated that the Impact Statement and its other submissions constitute unequivocal proof regarding the site's low value as farmland and also demonstrate that there is a need for the project as a matter of law. The Applicant maintains that there are no substantive and significant fact issues in dispute, and that the issue of loss of farmland versus need for gravel is a legal issue to be decided by the Commissioner.

The Department Staff and Town of Preble opposed this appeal. The Town argues that numerous factual questions have been raised concerning the quantity and quality of farmland to be lost, proposed mitigation measures, and the need for aggregate. The Town cited the opinions of its own consultant, information contained in the SEIS, and other information, as contradicting the Applicant's position and raising issues of fact. Staff's position is that sufficient information on farmland loss versus need has not yet been introduced into the record and, consequently, the record is deficient and without this information a final decision cannot be made.

In deciding appeals of issues rulings, there is a distinction between appeals of whether a factual dispute requires adjudication and appeals of legal or policy issues. Where the question is one of whether a factual dispute requires adjudication, substantial deference must be given to the ALJ's judgment. In contrast, where the appeal involves an issue of law or policy, the Commissioner has a broader responsibility to provide guidance. See , In the Matter of Hyland Facility Associates (Interim Decision of the Commissioner, August 20, 1992).

In the present case, Department Staff maintains that the record is inadequate on the question of farmland loss versus need. ALJ Owen points to a number of factual items to be addressed, including the extent to which all or part of the proposed 40-acre mine site is prime farmland, as well as the question of the viability of Applicant's proposed land swap for the asserted purpose of mitigation. A substantive and significant issue can be raised through the identification of some defect or omission in the application. The omission of information identified by Department Staff, as well as the factual items identified by the ALJ, require further analyses through the hearing process. See, In the Matter of Oneida County Energy Recovery Facility, (Interim Decision, July 27, 1982). Applicant's claim that they are legal issues is incorrect. However, there is a considerable policy component to the question of farmland loss versus need for the project. This is addressed below.

The issue of farmland loss versus project need arises in this case under SEQRA pursuant to which DEC, as lead agency, must determine whether, to the extent maximum extent practicable, adverse environmental effects will be minimized or avoided, consistent with social, economic, or other considerations (ECL 8-0109(8); and 6 NYCRR 617.5(c)). Loss of prime farmland is a factor in determining whether a project is a Type I action under SEQRA (see, 6 NYCRR 617.12(b)(8)), and hence, can be among those environmental effects considered to be adverse. In fact, a related prior application to mine aggregate near the site proposed to be mined in this case was denied, in part, because of the loss of prime farmland and, in part, because of inconsistency with local and county-level use plans ( see , Onondaga Valley Farms , Commissioner's Decision, June 16, 1982.) The present application is different than Onondaga Valley in that a smaller area is now proposed to be removed from agricultural use (40 acres as compared to 80 acres), a portion of the site was previously used as a borrow pit, and mitigation measures are proposed. However, Onondaga Valley is instructive. For example, Onondaga Valley notes that DEC gives great weight to local land use preferences when balancing factors under SEQRA, especially in the absence of statewide concerns or interests. Here, of course, there is the general statewide policy under the New York State Mined Land Reclamation Law ("MLRL") to encourage mining; that policy also encourages productive land use, including the planting of crops for harvest (see ECL 23-2703(1)). Thus, under the MLRL, as well as SEQRA, a balancing of agricultural loss as compared to need for the mined material needs to be done, based upon a factually complete review.

Social, economic, and other essential considerations must be taken into account and balanced with adverse environmental impacts to make the SEQRA findings. 6 NYCRR 617.9. Generally, discussion of need should be explained fully in the Impact Statement, especially where potential adverse effects, such as farmland loss, cannot be reduced or eliminated. For the purposes of making a record upon which to base the findings statement required by SEQRA, staff and the parties are urged to provide for the record in the hearing in a succinct manner, information addressing need for aggregate from the proposed site as compared to alternatives, the benefit or disbenefit of mining the site as compared to its continued use for agriculture, the mitigation measures proposed to offset or militate against potential adverse environmental impacts, the consistency with local and county land use master plans affecting the site location, and other indicators of need as the parties may deem appropriate. Documentation that granting the permit will be capable of serving a public benefit, use, or purpose, is an important factor in such a showing of need. To ensure a complete record, staff should contact the Department of Agriculture and Markets for their input in these proceedings. The ALJ is instructed to develop a record on the elements germane to the farmland loss and the need for aggregate issue, consistent with the above discussion.

Song Lake's Appeal

Song Lake Associates' appeals from the ALJ's denial of party status. Review of Song Lake's petition for party status shows that it raised the issue of prime farmland loss versus need. In view of the omission of information on this issue, Song Lake's petition is granted. As there is one issue, and as the Town, Tully Lake Property Owners' Association, and Song Lake have raised the same issue, these parties are urged to consolidate their presentations in the interest of efficiency and development of a useful, readable record. The ALJ is instructed to take the necessary measures to effectively manage the hearing and to urge the Town, Tully Lake Property Owners' Association, and Song Lake, to submit joint testimony and briefs.

The matter is remanded to ALJ Owen for further proceedings.

_____________/s/_____________
Michael D. Zagata,
Commissioner
Albany, New York

Dated: September 7, 1995