Preble Aggregate, Inc. - Ruling 2, June 26, 1995

Ruling 2, June 26, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application of PREBLE AGGREGATE INC. for a Mined Land Reclamation Permit for proposed mine in the Town of Preble, Cortland County.

RULINGS UPON PARTY STATUS
AND
UPON ISSUES FOR ADJUDICATION

DEC Project No. 7-1136-00007/00001

PROCEEDINGS

This matter involves an application submitted on May 21, 1987 by Preble Aggregate Inc. for a mined land reclamation permit for a proposed mine in the Town of Preble, Cortland County. The Department as lead agency pursuant to the State Environmental Quality Review Act (Article 8 of the New York State Environmental Conservation Law) determined that the proposed project may have a significant impact upon the environment and issued a Positive Declaration on November 28, 1988. A Draft Environmental Impact Statement ("DEIS") has been completed and was accepted for the proposed project on March 7, 1990. The Mining Plan and Reclamation Plan were included in the DEIS. The Department Staff accepted a Final Environmental Impact Statement ("FEIS") on the proposed project on June 5, 1990. By letter of August 6, 1990, the Applicant requested that the scheduling of a hearing on the application be postponed. This matter was referred for hearing on February 19, 1993 and was received in the Office of Hearings on February 24, 1993. Pursuant to a Notice of Hearing issued on March 1, 1993, a hearing was held in the Cortland County Office Building on April 20, 1993 and an Issues Conference was held in the Conference Room in the Department's Cortland, New York sub-office on April 21, 1993.

Following the Issues Conference the parties and potential parties submitted requests for party status, proposed issues for adjudication, and comments on the DEIS. By Rulings and Memorandum to Parties issued August 4, 1993, three potential parties were tentatively granted party status and one was tentatively denied party status, certain issues were tentatively set for adjudication, and the Applicant was directed to prepare a draft Supplemental Environmental Impact Statement ("draft SEIS" or "SEIS"). Therefore, and after further submission, the Applicant requested that the Issues Conference be reconvened and by Memorandum issued September 20, 1993 a reconvened Issues Conference was set for October 6, 1993 at the Department's sub-office at Homer, New York. The reconvened Issues Conference was held as scheduled and at it there was discussion of the requirements of the Rulings of August 4, 1993 and the draft SEIS to be prepared. The draft SEIS was then prepared, submitted and accepted by the Department Staff on December 20, 1994.

On January 11, 1995 a Combined Notice of Public Hearing, Notice of Complete Application and Notice of Availability of a Draft SEIS was issued setting a hearing to receive comments from the public upon the draft SEIS and the applications contained in it for February 22, 1995 at the Cortland County Office Building at Cortland, New York. Under date of January 24, 1995 the Department Staff forwarded to all on the service list a revised draft permit which, by Memorandum to Parties and Potential Parties also issued January 11, 1995, was to be commented upon at the public hearing on February 22, 1995. The public hearing was held as scheduled and at the hearing oral and written comments on the draft SEIS were received and following the hearing further written comments were received.

Proposed Project: The Applicant proposes to mine and process approximately 2 million cubic yards of sand and gravel from approximately 25 acres of a 40 acre site located south of Mary Belle Road, between Interstate Route 81 and New York State Route 281 in the Town of Preble, Cortland County, over a 20 year period. Material will be removed from below the water table to a maximum depth of 40 feet. The applicant proposes to reclaim the site as a pond/wetland area suitable for fish and wildlife habitat. When reclamation is complete, the Applicant proposes to divert an existing tributary to Tully Lake into the pond/wetland which will then drain into Tully Lake.

Proposed Mining Plan: The Applicant proposes to carry out the mining in three stages. During stage one, approximately 3 feet of overburden will be stripped with bulldozers and scrapers. Topsoil and subsoil will be stockpiled near the perimeter of the site for subsequent use in ongoing reclamation of the mined out areas as mining progresses. During stage two, sand and gravel will be removed to a depth of approximately 15 feet (one foot above the water table) by front-end loaders. Concurrently, the natural berm along the west side of the property will be vegetated to create a visual screen to Interstate 81. Subsequently during stage three, mining will remove material from below the water table to a maximum depth of approximately 40 feet, the effective limit for dragline equipment. Mining will commence in the west adjacent to Interstate 81 and will proceed eastward until material has been removed from approximately 25 acres of the site.

Proposed Reclamation Plan: Reclamation of the site will be accomplished by differential backfilling and grading to produce a pond of irregular configuration, with varying underwater slopes. The Applicant claims the resulting pond, with both shallow and deep water areas, will be suitable for a maximum number of possible uses, such as a passive fish and wildlife habitat, recreation or the development of a viable wetland area. When reclamation is complete, the unnamed tributary which enters Tully Lake at Cummings Bay will be diverted to the pond/wetland and then drain into the Lake.

Change in Hearing Officers: From its inception until March 23, 1995 this proceeding was assigned to Administrative Law Judge ("ALJ") William J. Dickerson and thereupon was re-assigned to ALJ John H. Owen due to the impending retirement of ALJ Dickerson from State service.

Governing Procedural Rules: Procedurally this proceeding is governed by 6 NYCRR former Part 624 in that ALJ Dickerson determined to hold an adjudicatory hearing (in his Rulings issued August 4, 1993) prior to the effective date of 6 NYCRR (present) Part 624, January 9, 1994 (See 6 NYCRR (present) 624.1(1).

Transitional Matters: As noted, ALJ Dickerson, in the Rulings issued August 4, 1993, had made tentative rulings upon party status and issues for adjudication. A copy of this portion of those rulings is attached as Attachment A. It now remains here to render further rulings upon issues for adjudication, if any, and upon party status, if necessary, and to set an adjudicatory hearing concerning any substantive and significant issues of fact found to exist.

Here the status of proposed issues raised will be reviewed in light of prior submissions, the SEIS and the comments on it. Then, should there be fact issues outstanding, party status will be determined, and an adjudicatory hearing set.

ISSUES FOR ADJUDICATION AND PARTY STATUS

Basically the task at hand is to determine whether and to what extent the SEIS and the submissions concerning the SEIS have altered the issues or party status from the way they appeared to ALJ Dickerson prior to the submission of the SEIS.

The Issues

1. State Environmental Quality Review Issues.

Loss of Prime Agricultural Land Versus the Need for Gravel

The Department Staff ("Staff"), the Town of Preble (the "Town"), the Song Lake Association ("Song Lake") and the Tully Lake Property Owners Association ("TLPOA") continue to urge that the loss of prime farmland is irreparable and is unmitigated by the proposed land exchange, and that there are more than ample sources of high quality gravel in the local area. The Applicant urges that there are no issues and that the project site is not all prime farmland, that parts of it have been previously excavated and mined, that other parts of it are less than prime quality, and that a local source of gravel is necessary to keep the delivered cost of the gravel and the local taxes within manageable limits.

A number of issues and sub-issues remain here. Among these are whether, assuming that all of the site (40 acres) and all of the 60 acres are prime farmland, the land exchange is mitigation at all. Indeed there is a real question whether this issue alone would require an evidentiary hearing to resolve it. If it can be considered mitigation at all, then we must determine the degree of mitigation. This, in turn, involves questions of how much of the site and the 60 acres is prime farmland, whether the area within the 40 acres not to be mined (set-back areas) is farmable as a practical matter, and even if the 60 acres is all prime farmland will the owner after the exchange keep, or be required to keep it as farmland or will he be able to turn it to a different land use. The applicant states that the 60 acres were "formerly" zoned both industrial and commercial, but fails to tell us what the present zoning is. There are other issues concerning the location of the disturbed land; i.e., in the area to be mined or in the set-back areas not to be mined.

As to the need for gravel, there are issues concerning the availability of other local sources, the extent of depletion of those sources, whether what is claimed as a source for high quality gravel is in fact producing quantities of low quality gravel or other products approvable by the Department of Transportation ("DOT") for road or other construction. Therefore, for the reasons set forth by ALJ Dickerson (pp. 7-8, Attachment A) and above, the loss of prime agricultural land versus the need for gravel remains an issue for adjudication.

Water Quality and Interruption of Stream Flow

These matters are addressed under the Reclamation Plans heading below.

Noise Impacts

The Town, TLPOA and Mr. Couch have raised noise impacts as an issue. ALJ Dickerson suggested that ambient noise levels be provided in the SEIS (Attachment A, p. 10). This was done and the opposing parties have not rebutted the Applicant's showing that the noise level at the site from Interstate 81 traffic is at least 85 dBA, that the average site-generated noise is 67 dBA, and that under the chart from the Community Noise Control Manual (Lipoti, 1982) the I-81 noise would "mask" the noise from the site. There is, therefore, no issue for adjudication here.

Air Impacts

The Applicant has applied for two (2) air permits from the DEC for the operation of a screening and crushing plant. The Staff finds no issue concerning air impacts, stating that Revised Permit Condition (No. 18) limits fugitive dust to 10% opacity and requires dust and flying particles to remain on the site and that the machines (which are to remain on the site's western portion) will adequately control the emissions. Town's concern about dust affecting the Hancock Plant is addressed under the Mining Plans heading below. TLPOA is concerned about the wind (mostly easterly) shifting to carry dust to the homes on Tully Lake and the Lake itself, adding to its problems; however, the special permit conditions (particularly nos. 18 and 19) are more than adequate to avoid such effects as foreseen by the Town, Mr. Couch and TLPOA. Thus there is no issue for adjudication here.

Highway Safety

For the reasons stated by ALJ Dickerson (Attachment A, p. 9), principally adequate sight distances, highway safety was not an issue even before the SEIS, and it is not an issue now. No opposing party has made an offer of proof to join sight distance and highway safety as an issue to be considered further.

Highway Capacity and Traffic Volume

Here the Town and TLPOA urge this is an issue for adjudication; however, these parties have failed to rebut the Applicant's showing in the SEIS that traffic to and from the site (50 round trips Monday through Friday, less on Saturday and none on Sunday - see Revised Permit Conditions Nos. 20(d) and 21) will not overburden Route 281. Specifically Route 28, is a heavy duty road constructed before I-81 and as a result of the relief afforded by I-81, is a markedly underutilized road. This is based upon NYSDOT ratings and other information at pages 62-63 of the DSEIS. No opposing party has made an offer of proof regarding this issue. Hence, there is no issue for adjudication here.

Vibrations

The Town is concerned about vibration from the operation impacting the very delicate and precise machinery at Hancock Manufacturing Co.; however, with the relocation of the entrance to some 600 feet south of the Hancock plant there was no issue here even before the SEIS (See Attachment A, p. 11) and there is none now.

2. Reclamation Plans

ALJ Dickerson's concerns about the Reclamation Plan and the Revised Reclamation Plan (submitted after the Issues Conference) are set forth at pages 12-14 of Attachment A.

The Town continues to find fault with the Reclamation Plan concerning the mine slopes, stream diversion and the wetland to be created; however, the Town has failed to rebut the showing of the Applicant and the Staff to the effect that the SEIS inadequately addresses streamflow, surface drainage and capacity of the culverts under I-81, flooding, changes in drainage patterns, water movement and water quality. While due to the surface elevation of Tully Lake water will still back up to the westernmost portion of the culvert under the Town road west of I-81, even somewhat less water leaving the culvert should not adversely impact downstream--indeed downstream effects should be beneficial in that sediment and excessive nutrients will be trapped, with drainage into Tully Lake still taking place during high water. On the other hand, the Town has failed to show that the pond is likely to stagnate, collect substances harmful to Tully Lake and flush these into the Lake during heavy rain. In short, there has been no offer of proof that the pond/wetland will not function in the beneficial manner set forth in the DSEIS.

The Town also claims the fencing is necessary to protect children; however, Revised Permit Condition No. 35 requires that the site be fenced.

Song Lake speculates that floodlighting will be used and adversely affect the visual impact; however, Revised Permit Condition No. 21 limits operation to no later than 6:00 P.M. on any day such that floodlighting, if necessary at all, would be used only on the shortest daylight days in the winter when such lighting would be least annoying.

Thus, there are no issues for adjudication concerning the Reclamation Plans.

3. Mining Plans

The Town claims that the haulage road will come closer and closer to the Hancock plant and dust from it will be harmful to the operation of that plant; however, the Revised Draft Permit, particularly Nos. 18 and 19, require the applicant to control dust, take care of the roads, cover trucks and so forth. Then too, the movement of the exit away from the plant also is effective in preventing dust from affecting the plant's operation. For these reasons there are no issues for adjudication concerning the mining plans.

4. Air Permit

This matter has been addressed under the Air Impacts heading above.

Issues Raised by TLPOA

For the reasons set forth by ALJ Dickerson at pages 15 and 16 of Attachment A, there are no substantive or significant issues raised by TLPOA concerning either its legal or economic proposed issues.

Miscellaneous Proposed Issues:

1. Cortland-Homer-Preble Sole Source Aquifer: The Town, Mr. Couch and TLPOA raise this as an issue; however, they have failed to show that a gravel mining operation (which involves no blasting) has ever or will likely adversely affect an acquifer. There has been no offer of proof even potentially rebutting the Applicant's showing (DSEIS, pages 51-58) that the mining operation will have no more than an insignificant thermal impact upon the acquifer. Thus there is no issue here.

2. Tully Home Trailer Park: The Town and TLPOA advocate the affect of the mining operation on the trailer park's residents as an issue. The trailer park, said to be about 1,000 feet from the site and to have 115 units, is insulated from the site by Route 281 and railroad tracks for the most part parallel to it. What has been stated above concerning Route 281 sight distances will protect school buses from accidents, and what has been stated above concerning noise, vibration, dust and so forth demonstrates that the operation will not unduly disturb the trailer park residents. Lastly, as to the site being attractive to children, the site is bounded on three sides by roads (I-81, Mary Belle road and Route 281) and on the fourth side by agricultural land presumably fenced to confine livestock; and, in any case, Revised Permit Condition No. 35, as noted, requires that the site be "adequately fenced at all times". There is no issue concerning the Tully Home Trailer Park.

Issue for Adjudication

There is but one issue for adjudication: the loss of prime agricultural land versus the need for gravel.

Rulings Upon Party Status

1. The Town of Preble and the Tully Lake Property Owners' Association, having raised substantive and significant issues concerning the loss of prime agricultural land versus the need for gravel, are each granted full party status.
2. The members of the Song Lake Association are simply too far removed from the proposed project to be affected by it and, accordingly, the Song Lake Association is denied party status.
3. Robert Couch, the downstream riparian owner located between the mine site and Tully Lake, having failed to raise a substantive issue concerning water quality, quantity of water and so forth, is denied party status.

Adjudicatory Hearing

The parties are to confer with each other and the ALJ concerning dates for the adjudicatory hearing and the applicant shall arrange a location for the hearing.

APPEALS

Pursuant to 6 NYCRR 624.4(f), any ruling of the Administrative Law Judge denying or limiting party status may be appealed to the Commissioner in writing within three days of the ruling. Pursuant to 6 NYCRR 624.6(d), the ruling of the Administrative law Judge setting forth the issues for the hearing may be appealed to the Commissioner in writing within three days of the ruling. At the Issues Conference, the parties present agreed that the time limit for any appeals of the Administrative Law Judge's rulings on these matters would be within 10 days of receipt of the rulings. A copy of the Official Service List for these proceedings is appended to these rulings as Attachment B.

Appeals to the Commissioner should be addressed to:

Commissioner Michael D. Zagata
NYS Department of Environmental Conservation
50 Wolf Road, Room 604
Albany, New York 12233-1010

Copies of any appeal and any accompanying briefs should be provided to all parties listed on the Official Service List as set forth above.

_____________/s/_____________
John H. Owen
Administrative Law Judge
Albany, New York

Dated: June 26, 1995

ATTACHMENT A

Extract from ALJ Dickerson's Rulings and Memorandum to Parties issued August 4, 1993, Pages 2 through 17.

PARTY STATUS

The Applicant and the Department Staff are parties to these proceedings pursuant to regulation [6 NYCRR 624.4(a)]. Supervisor Peter Knapp, the Town of Preble, the Tully Lake Property Owners Association, the Song Lake Association and Robert R. Crouch have applied for party status.

SUMMARY POSITIONS OF THE PARTIES AND POTENTIAL PARTIES

The Applicant

The Applicant claims that the permit conditions set forth in the draft permit avoid and/or mitigate any impacts which have been raised. The Applicant claims that no new issues have been raised to require a hearing on the permit and that the prior issues were addressed in responses in the Final Environmental Impact Statement (FEIS) which was accepted by the Department on June 5, 1990.

The Applicant objects to these proceedings as being a SEQR hearing because the Department accepted a FEIS. This is addressed below in the discussion of SEQR issues. The Applicant claims that its proposed exchange of a 60 acre parcel with the present owner of the 40 acre parcel proposed to be mined is adequate mitigation for the loss of farm land.

The Department Staff

The Department Staff have prepared a draft permit and initially claimed that the application, when combined with the significant and stringent permit conditions contained in the draft permit, would meet the statutory and regulatory criteria for a mined land reclamation permit but there was one issue for adjudication; the loss of prime farmland. Based on the Revised Mining and Reclamation Plan which was submitted after the Issues Conference, the Staff now claim that there are tow issues requiring adjudication: 1) a requirement for a berm in the northwest corner of the property to prevent offsite flooding; and 2) the balancing required by SEQRA due to the impact on the environment through the irreversible loss of forty acres of prime agricultural farmland with the social and economic need for this project. It is the Staff's position that more evidence is needed to establish that the need for the sand and gravel resource is sufficient to justify the permanent loss of a significant resource, forty acres of prime agricultural land.

Town of Preble, Peter Knapp, Supervisor

The Town of Preble and Peter Knapp, Supervisor of the Town of Preble individually applied for party state in these proceedings. Since the interests of both are similar, they agreed at the Issues Conference to be consolidated as a single party in these proceedings and will hereafter be referred in this document and these proceedings as the "Town" or the "Town of Preble".

The Town is opposed to approval of the application because mining on the proposed site is directly in conflict with the Town's Zoning Ordinance and Land Use Plan; mining will result in the loss of 40 acres of prime farmland with no corresponding benefit; the proximity to a residential area (the Tully Mobile Home Park); the proximity to a local business; the location of the proposed project within a sole source aquifer; and the noise, dust, traffic and vibration resulting from the mining operations. Specific points raised by the Town and its engineering consultant are addressed below in the discussion of specific issues.

Tully Lake Property Owners Association

The Tully Lake Property Owners' Association, Inc. seeks party status and opposes approval of the application on the following environmental grounds: loss of prime agricultural land; excessive noise, traffic and dust for perhaps 20 years; the threat to the continued existence of a business and the adjacent mobile home park; the adverse effects on Tully Lake which already suffers from excessive eutrophication and which will have lower water levels as a result of mining; the safety of nearby residents, in particular toddlers and young children; the detrimental impact on the scenic beauty of the area and the pollution of wells.

The Association also opposes approval on the following economic grounds: increased road maintenance costs on the Town of Preble and perhaps to the Town of Tully; the lack of financial data or bonding information on the capitalization of the Applicant thereby impairing its ability to perform the mining activity and care for its property ad the lack of enhancement of the local tax base because the property will remain in an unimproved state. The Association sets forth the following legal grounds in opposing approval of the proposed project: a prior decision of the Department that the project would have an adverse impact on the environment; the project is precluded by the Town of Preble zoning ordinance and approval of the application would set a precedent for further mining by the Applicant or other mining companies. The Association questions who will be the owner of the site and responsible for the maintenance of the pond when mining ceases.

Song Lake Association

William L. Griffen, acting on behalf of the Song Lake Association, requested party status and seeks denial of the permit. Dr. Griffen's request is primarily based on his prior participation as Director of the Committee for the Preservation of Prime Farmland in a hearing held in 1981 and 1982 pertaining to a mining application for a site located approximately 1.5 miles south of the present proposed project. The Association is opposed to the instant project because of inadequate mitigation for the loss of prime farmland, potential contamination of ground water, traffic safety and the conflict between mining at the proposed site and the Town of Preble's Zoning Ordinance and Land Use Plan.

Robert R. Crouch

Mr. Crouch, the immediate downstream riparian property owner, seeks party status and objects to the mining and processing of gravel in the vicinity of his dwelling because of the resulting noise and dirt. He is opposed to the diversion or disruption of the stream because of its effect on his property and because of the potential to contaminate his well and the aquifer.

RULING ON PARTY STATUS

The Tully Lake Property Owners Association and Mr. Crouch have an interest in the proposed project as downstream riparian owners who are directly affected by the proposed project. The Town of Preble and Peter Knapp have an interest in representing the local municipality in which the project is located. The Tully Lake Property Owners' Association, the Town of Preble and Mr. Crouch are granted party status. Mr. Crouch's participation will be limited to the issues relating to the stream which traverses his property. Although the Song Lake Association is generally opposed to the proposed project for the reasons stated above, the Association did not identify any specific social, economic or environmental interests it had which are likely to be affected by the proposed project. As noted in the Notice of Hearing, mere opposition is not a sufficient basis to be granted party status. Accordingly, the request of the Song Lake Association for party status is denied.

ISSUES FOR ADJUDICATION

In order for an issue to be adjudicated, the issue must be substantive, that is, not speculative and capable of resolution through adjudication; and significant, that is, resolution of the issue may result in permit denial, require major modification to the project or the imposition of significant permit conditions (see Commissioner's Decision, In the Matter of the Application of Halfmoon Water Improvement Area No. 1, Water Supply Application No. 7203, dated April 2, 1982). When an application is accompanied by a DEIS, issues arising from the significant impacts, alternatives, mitigation measures or social and economic considerations identified in the DEIS or the comments on the DEIS which might lead to denial of the permit or the attachment of significant permit conditions are also to be addressed in the adjudicatory session of the hearing [6 NYCRR 624.6(b)].

1. State Environmental Quality Review Issues.

Final Environmental Impact Statement (FEIS)

The purpose of a FEIS is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to approve such action. (ECL 8-0109.2) ECL 8-0109.2 also sets forth the specific requirements for the contents of a final environmental impact statement. These requirements are set forth in detail in Attachment A appended to this Memorandum.

The Applicant objects to these proceedings being considered a SEQR hearing because it claims all prior issues were addressed in the FEIS which was accepted by the Department on June 3, 1990.

The document entitled Final Environmental Impact Statement Volume II for the proposed Preble Aggregate, Inc. Mining Operation Town of Preble, Cortland County, New York, dated May 24, 1990, [hereinafter referred to as the "FEIS"] for the most part consists of copies of written comments on the Draft Environmental Impact Statement and the Applicant's responses to those comments.

Ruling on the "FEIS"

In situations when an application has been referred to the Office of Hearings, the Department Staff does not have the authority to take certain actions; such as accepting the FEIS, making the required SEQR findings and issuing the permits which are reserved to the Commissioner acting through the Office of Hearings. Further, the Department's hearing regulations make it clear that where the Department is lead agency, the DEIS and the ALJ's report shall constitute the FEIS [6NYCRR 624.7(d)]. On this basis, I conclude that the acceptance of the "FEIS" by Staff was beyond its authority and hence that action is void.

In addition, the document accepted by Staff as a FEIS does not contain, either directly or by reference, those items which are specifically required by ECL 8-0109.2 and therefore, as a matter of law, cannot be accepted as a Final Environmental Impact Statement. Therefore, if the "FEIS" were used as the basis for SEQRA findings, it appears likely that those findings would be negative.

These proceedings will result in the required ALJ report and must ultimately result in the findings required by ECL 8-0109.8 before the application can be approved. No findings statement has been made. Therefore these proceedings properly include consideration of SEQR issues and for the purpose of these proceedings the "FEIS" will be considered an addendum to the DEIS.

Draft Environmental Impact Statement (DEIS)

The purpose of a Draft Environmental Impact Statement (DEIS) is to relate environmental considerations to the inception of the planning process, to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment and to solicit comments which will assist the agency in the decision making process in determining the environmental consequences of the proposed action. [ECL 8-0109.4].

Several potential parties have requested that the DEIS be supplemented. The Department's regulations governing SEQR authorize the lead agency to require a supplemental environmental impact statement (SEIS) prior to the filing of a findings statement when newly discovered information arises about significant adverse effects which were not previously addressed. The SEIS would be limited to specific issues either not addressed or inadequately addressed in the environmental impact statement [6 NYCRR 617.8(g)]. The following is an analysis of each element that is proposed as part of a SEIS.

Lack of Detail

The Town of Preble contends that the DEIS is inadequate because of a lack of sufficient detail to assess the environmental impacts; a lack of any discussion of the proposed action during the later stages of the project; a lack of discussion of the location of processing plant when mining operations are closer to Route 281, a residential area (the Tully Mobile Home Park), and an existing business (the Hancock Manufacturing Company); the a lack of any discussion of wetlands which are present on the site; a lack of detailed topographic information and a lack of discussion of visual impacts, barriers, berms, buffers and screening. The Town further contends that groundwater contamination is an issue that must be addressed.

The Town's consultant specifically notes that the DEIS does not address the newly proposed access road with respect to paving the area adjacent to Route 281, planting of trees to minimize dust and noise or address vibration and vibration mitigation measures. The Town claims the DEIS does not address the impacts over the entire life of the project and is therefore incomplete. The impacts as mining approaches Route 281 and when the processing plant is relocated on receptors have not been addressed. The lack of detail is not sufficient to require the preparation of a SEIS but would normally be addressed in the SEQR process by the information provided in the responses to the comments on the DEIS.

Need for Gravel

The Department Staff state that because the mining operation will take place below the water table, reclamation of the site for quality agricultural production will not be possible and a prime resource of the State will be lost. It is the Staff's position that this issue relates to the balancing required by the State Environmental Quality Review Act. The loss of forty acres of prime farmland must be balanced against the need for the gravel proposed to be mined. The Staff claim the Applicant has asserted that need for the gravel does exist but claim the application materials do not establish that the need for gravel exists beyond bare assertions and that further information is needed to establish the need for gravel. In the context of the net loss of prime farmland, the need for gravel will be an issue to be adjudicated.

Loss of Prime Agricultural Land

As noted above, the Applicant claims that its proposed exchange of a 60 acre parcel with the present owner of the 40 acre parcel proposed to be mined is adequate mitigation for the loss of farm land. There is a question if an exchange of ownership of two parcels of land and the subsequent removal from agricultural use of one of the parcels constitutes mitigation. There is also a factual dispute as to the amount of prime agricultural land which will be lost. The Applicant claims that only 20 acres will be lost. The Town of Preble claims, based on the mining plan, that 36 acres will be permanently removed from agriculture and questions if the remaining 4 acres would be farmed in the future. The Department Staff views the loss as being 40 acres. The Applicant also claims that 8 to 10 acres of the site have been previously disturbed by mining during construction of Interstate Route 81 and that 5.5 acres of the site contain muck and marl soils which are not prime farmland. There is insufficient information in the DEIS and the "FEIS" to properly assess the impacts of the proposed project as it relates to the loss of prime quality farmland. Again this is an issue for adjudication but additional information concerning the location and extent of land disturbed by prior mining should be provided prior to the hearing and may narrow the issue.

Water Quality and Interruption of Stream Flow

The DEIS states: "Implementation of the proposed reclamation plan of diverting the stream through the mining pond should have a significant impact on the quality of the water entering Tully Lake. It has long been recognized that wetland vegetation contributes to improving water quality by removing excess nutrients and many contaminants." [DEIS, page 52] The "FEIS" contains the following comment by Suzanne F. Hilfinger, dated 4/2/90: "The water quality in South Bay where the stream enters the lake is like a cesspool in the Summertime." and the Applicant's Response states: "We agree with Mrs. Hilfinger's assessment of the problems affecting Tully Lake and the benefits of the proposed project."

On May 20, 1993, the Applicant submitted a letter from William T. Underwood, dated 4/20/93, which reads:

"I, William T. Underwood, having discussed the issue of having the intermittent stream which is adjacent to the Preble Aggregate, Inc. project, understand that the stream will no longer be of use following implementation of the mine pond, and I will no longer have use of it, and I have no objection."

In response, Mr. Crouch stated in a letter dated May 26, 1993:

"The so called "intermittent" stream has never been dry in our over 40 years in this area. This is the stream that carries the effluence (sic) from the sewage treatment plant in Tully. As this flowing stream crosses our lands we expect to have full benefit and enjoyment of this stream in the future as we have had in the past. The stream helps feed our 15 acres of wetlands and wildlife sanctuary."

There is obviously a factual dispute over the issue of whether the stream is an intermittent stream or one that flows continuously. As noted above, the Town of Preble claims that the proposed project is located within a sole source aquifer which will result in impacts on quality and quantity of ground water supplies and on drainage patterns to nearby streams and lakes. The DEIS addresses the impacts of mining on the aquifer but neither the DEIS nor the "FEIS" address the impacts of the proposed reclamation plan other than providing a silt trap for Tully Lake. This is a critical defect, given the existing adverse impacts in Tully Lake (230 acres) which is much larger than the proposed pond (25 acres).

The DEIS also does not address the effects of interrupting the stream flow into Tully Lake or on the regulated wetlands which are located approximately 400 feet downstream from the proposed project. At the afternoon hearing session on April 20, 1993, Arnold F. Smith who lives downstream of the proposed project on Tully Lake and who is a member of the Preble Planning Board stated:

The DEIS or "FEIS" does not mention flora or fauna [plants or animals] on the site or in the downstream regulated wetlands which has been designated OV-4 [DEIS, Figure 10] except to state "The project will have no impact on unique fauna or flora [DEIS, page 58].

The Reclamation Plan as proposed would interrupt the tributary of Tully Lake as described below in the discussion on the Reclamation Plan. The impacts on the regulated wetlands which are located approximately 400 feet downstream from the proposed project and on the water quality down stream and in Tully Lake resulting from interrupting the stream flow into Tully Lake are significant adverse impacts which have not been addressed in the DEIS. The adverse impacts on stream flow and water quality are such as to require that a SEIS be prepared.

Noise Impacts

The DEIS identifies noise, dust and traffic as the expected environmental impacts related to mining. Although the DEIS provides information on the range of noise levels of various types of construction equipment, the DEIS does not provide any data on ambient noise levels at the site so that the expected noise impacts could be assessed. While not reaching the level which would require the preparation of a SEIS, without information on the existing ambient noise levels, this would be an issue for adjudication.

Air Impacts

The Applicant proposes to construct a "complete processing plant". The DEIS states that the screening and crushing plant will require air permits from the Department but provides no information on the expected exhaust emissions except to state "Emissions will be required to fall within acceptable limits". Those limits are not stated. Without some indication of what these emission limits will be, there is no way to evaluate the impacts of the proposed project on air quality. This omission constitutes an improper segmentation of the Applicant's proposal. The air impacts of the proposed project must be considered at the time of the SEQR review (see Commissioner's Interim Decision, In the Matter of the Application of Peckham Materials Corporation, DEC Application No. 50-34-0413, dated November 1, 1985). With respect to dust, there has been no showing that the permit conditions pertaining to dust control, as modified at the Issues Conference on April 21, 1993, are insufficient to minimize dust impacts. The failure to address the adverse impacts on air quality of the emissions from the processing plant in the DEIS is sufficient to require a SEIS to be prepared.

Highway Safety

The DEIS did not evaluate the highway safety aspects of the proposed entrance which directly accesses NYS Route 281 approximately 700 feet south of the Marybelle Road intersection. However the DEIS does indicate that the line of sight distance along NYS Route 281 at its intersection with Marybelle Road exceeds 2,000 feet in either direction. The line of sight distance at the proposed new entrance would be at least 1300 feet to the south and 2700 feet to the north. Highway safety has not been shown to be an issue for adjudication nor is it a matter requiring a SEIS.

Highway capacity and traffic volume

The DEIS does provide the 1986 traffic volume and estimates of the 1989 traffic volume on NYS Route 281. The Town notes that the "FEIS" states the anticipated total truck round trips will be 25 trips, not 50 and questions why the permit now allows 50 truck trips a day. Although the DEIS does not provide the existing capacity or present level of service on Route 281 to allow an assessment of the impact of an additional 50 vehicle trips per day, it does not appear that this is a matter which would require adjudication or an SEIS but could be resolved by providing that information. In the event that the information indicates an adverse impact on the existing level of service on Route 281, the Applicant is requested to propose a plan to control the flow of traffic departing the site to maintain the existing level of service on the highway.

Vibrations

The "FEIS" identifies the following issues: loss of prime agricultural land; impacts on Hancock Manufacturing resulting from vibration, dust and noise; potential for contamination of groundwater and traffic safety. All of these issues except for the vibration impacts on Hancock Manufacturing have been discussed above. No specific source of vibrations, other than truck traffic, have been identified which would appear to have an impact on the manufacturing facility. With the relocation of the entrance to its new location 600 feet south of the Hancock facility, it does not appear that the vibrations from truck traffic would be distinguishable from the existing traffic on Route 281 and would not require adjudication or a SEIS.

Ruling on Supplemental Environmental Impact Statement

In order to approve an action which has been the subject of an environmental impact statement, the Department must make an explicit finding that, among other things, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided. 6 NYCRR 617.8(g) sets out the circumstances under which a lead agency may require a SEIS.

The impact of the proposed reclamation plan on water quality and interruption of stream flow on Tully Lake and the downstream wetlands and the air impacts of the proposed screening and crushing plant are significant adverse effects that were not addressed in the DEIS. The SEQR process is still open and it is therefore appropriate that an SEIS be prepared which addresses these impacts.

The other areas where information gaps were identified in my analysis, do not meet the SEIS standard but would be issues for adjudication if the information was not provided. Rather than move directly to adjudication, since a SEIS is required in this case, it would be more efficient to require the Applicant to submit the information along with the SEIS and then adjudicate any remaining issues (see Commissioner's Interim Decision, In the Matter of the Application of Red Wing Properties, Inc., DEC Application No. 3-1334-58/1-0, dated January 20, 1989).

The Applicant is directed to prepare a Supplemental Environmental Impact Statement addressing the impacts of the proposed reclamation plan on the flows in the tributary to Tully Lake and the downstream wetlands and the air impacts from the proposed crushing and screening plant. The SEIS must contain, at a minimum, estimates or measurements of the capacity of the culverts under Interstate Route 81, stream flow and water quality data for the tributary to Tully Lake and an assessment of the impacts of the proposed diversion of the stream into the pond formed by the proposed mining operations on:

• downstream riparian rights;
• downstream flows after diversion;
• downstream water quality after diversion;
• downstream wetlands;
• downstream fisheries/spawning areas;
• water quality in pond/wetland from sewage effluent/ untreated sewage from Tully sewage treatment plant;
• water quality in aquifer due to exchange (if any) with water from pond/wetland after diversion;
• beneficial effects on Tully Lake due to loss of sediment load; and
• adverse effects on Tully Lake due to loss of inflow.
• an evaluation of the proposed air emissions

There are information gaps in the application documents which, while not sufficient to require the preparation of a SEIS, constitute information which is required to make a decision on the application and which would become issues for adjudication if the information was not provided. Because an SEIS is required, I am directing the Applicant to include the information underlined above as part of the SEIS pursuant to 6 NYCRR 621.15(b).

2. Reclamation Plan

The Town of Preble claims that the proposed project is located within a sole source aquifer which will result in impacts on quality and quantity of ground water supplies and on drainage patterns to nearby streams and lakes. The Tully Lake Property Owners Association claim the proposed project may have an adverse effect on Tully Lake which already suffers from excessive eutrophication and will result in lower lake and water well levels. Mr. Robert R. Crouch claims that the proposed project will divert or disrupt the stream to the detriment of downstream property owners and existing wildlife habitat. He also claims the proposed project will contaminate wells and the aquifer due to the diversion of the stream carrying the effluent and/or raw sewage from the Tully Treatment Plant directly into the water table. Mr. Crouch claims these effects of the proposed project will destroy adjoining property values.

The Town of Preble's engineering consultant states that the contours and slopes on the reclamation plan are not consistent with the cross-section which is to be implemented. The contours indicate in places nearly a 1:1 slope at the edge of the mine (transition from existing grade to relatively flat area next to water). The consultant notes the typical shoreline section on the reclamation plan is "typical" for the west end of the project where the existing grade is at an elevation of approximately 1200 feet. The existing elevations over the easternmost two-thirds of the site appear to be at least 15 feet higher than the 1200 foot contour shown. The description of the topography is inadequate to establish environmental impacts, potential mitigation measures and to visualize the proposed reclamation measures.

The DEIS states "Tully Lake has experienced an explosive growth of aquatic vegetation, due at least in part to nutrient loading from the Tully Village sewage treatment plant and agricultural runoff. Effluent from the Tully treatment plant is discharged into the tributary stream with an average nutrient input of 2 to 3 pounds of phosphates per day." [DEIS, page 3]

The DEIS also states "The vegetation buildup in Tully Lake is largely related to nutrient enrichment. Probably, the most important single factor contributing to this problem was that in 1970 the Town of Tully's sewage effluent was discharged into the creek and transported into the lake at Cummings Bay thus providing a constant nutrient charge to the lake. It is a secondary treatment plant that averages 70,000 to 80,000 gallons of discharges per day. The effluent provides an excellent nutrient base for increased plant growth. As evidence of the added nutrient load being added to the lake was the presence in July 1987 of very large and dense mats of the green alga Spirogyra. This alga is frequently cited as a water quality indicator in waters receiving large amounts of nutrients (Miller, 1987). Species such as water milfoil thrive in water bodies which are characterized by nutrient enrichment. It is likely that the prolific vegetation will continue to expand as long as these conditions are unchanged." [DEIS, page 51]

The Revised Mining and Reclamation Plan, submitted after the Issues Conference, indicates that the water level in the pond after reclamation will normally be at an elevation of about 1185 feet. This is 5.5 feet below the bottom of the culvert under Interstate 81. The pond will not drain to Tully Lake as proposed but will intercept and retain the total flow of the stream at least until the water elevation reaches 1190.5 feet. Under those conditions, the pond will, in effect, become a sump for the nutrient laden stream which has already caused extensive algal mats in Tully Lake.

The Department Staff also claim that at certain times the water level in the pond will have a elevation of at least 1196 feet and could reach as high as 1200 feet. Under the latter condition, offsite flooding could occur in the northwest portion of the site.

Due to the absence of information on streamflow and the capacity of the culverts under Interstate 81 and the 15 foot contour interval used on the Reclamation Plan, it is not possible to determine if the Department Staff's concern about the potential for offsite flooding in the area of the northwest portion of the site can be resolved by a proposed condition concerning a berm as set forth in their May 21, 1993 Issues Submission and Brief or to determine the extent of the flooding which would occur in that area if the water level rises above elevation 1195.8 feet, which is the elevation of the top of the culvert under Interstate 81. The Applicant has not responded to this point in its submissions.

Ruling on the Reclamation Plan

Given these factors, there is considerable doubt that the Applicant's proposed Reclamation Plan can comply with the requirements of 6 NYCRR 422.3 or even achieve the stated objectives of the Reclamation Plan. As proposed, there is a substantive issue concerning whether the Reclamation Plan complies with the requirements of 6NYCRR 422.3(c)(iii) with respect to flooding and changes in drainage patterns; 6NYCRR 422.3(c)(iv)(c) with respect water movement and creation of stagnant or undesirable conditions; and 6NYCRR 422.3(c)(iv)(e) pertaining to water quality standards, especially phosphorous. Therefore the proposed Reclamation Plan is an issue for adjudication. In view of the additional work required to supplement the DEIS, the Applicant may want to consider revising the Reclamation Plan.

3. Mining Plan:

The Applicant's Mining Plan is summarized in the Introduction of this Rulings Document and is displayed on the Revised Mining and Reclamation Plan. The requirements for the mining plan are specified in 6 NYCRR 422.2 and will not be repeated here.

The Town's engineering consultant claims there is a discrepancy between the mining plan and the reclamation plan as far as elevations are concerned. Visual observation of the site shows a dramatic change on the western portion of the parcel. The western quarter or third of the site is significantly lower in elevation than the portion of the site near Route 281. There is no discussion of screening or the types of vegetation to be used.

The Revised Mining and Reclamation Plan shows a proposed new entrance road entering the site directly from Route 281 but does not show any road from the entrance to the proposed location of the processing plant or the area to be mined during the first three years of operation. Although mining is to be carried out in three stages, described above, the sequence of mining and the areas to be mined after the first three years are not delineated. The location of the processing plant in the future is not indicated. The mining plan does not show the locations of stockpiles, settling ponds, haulageways, spoil banks and the other information required by the regulations. The DEIS indicates that reclamation will be concurrent with the mining operation.

Ruling on the Mining Plan

Without further details on the sequence of mining, it is not possible to determine how the reclamation shown on the reclamation plan can be accomplished while mining continues especially along the southern portion of the site near the stream. Whether there are or will be issues for adjudication concerning the mining plan can not be determined until the information underlined above is provided.

4. Air Permit.

In addition to the requirement to consider the air impacts of the proposed project on air quality during the SEQR review, the application to construct a source of air contamination is required by the Department's Uniform Procedures Regulations. 6 NYCRR 621.3(a)(4) requires that if a project requires more than one permit from the Department, an Applicant must simultaneously submit all the necessary applications or demonstrate that there is good cause not to do so. Based on the Applicant's submissions, there is no information on why the required air permit application has not been filed.

The Applicant is directed to submit the required application to construct a source of air contamination and to include an evaluation of the proposed air emissions in the Supplemental Environmental Impact Statement (SEIS).

Ruling

The Association misunderstands the significance of a "positive declaration". A "positive declaration" is a written statement prepared by the lead agency indicating that implementation of the action as proposed may have a significant effect on the environment and that an environmental impact statement will be required [NYCRR 617.2(cc)]. The bases for issuing a "positive declaration" are set out in 6 NYCRR 617.6(g). The "positive declaration" initiates the environmental impact statement process.

The question of the compatibility of the proposed project with the local zoning is a matter to be determined by the local municipality. With respect to precedent, each application must be reviewed on its own merits, based on the facts applicable to that particular case.

Economic Issues

The Association also raised three economic issues: the increased road maintenance costs on the part of the Town of Preble; the absence of financial data on the capitalization of the Applicant; and the lack of enhancement to the local tax base because the property will remain in an unimproved state.

Ruling

With respect to the first issue, given the revised mining plan submitted after the Issues Conference showing the relocated access road entering the site directly from NYS Route 281, it appears there may be no issue of town highway maintenance. With respect to the other issues, the Mined Land Reclamation Law (ECL Article 23, Title 27) requires that an Applicant furnish financial security to insure the performance of reclamation to ensure the performance of reclamation prior to the issuance of a permit. Given the problems with the proposed reclamation plan, which have been discussed above, the amount of an appropriate reclamation bond and the ultimate reclamation of the site will be addressed within the scope of the reclamation plan issue discussed above.

Summary of Issues to be Adjudicated

Based on the Applicant's submissions to date, certain factual issues have been identified for adjudication pursuant to the criteria set forth in 6 NYCRR 624.6; i.e. the need for gravel, the amount of prime agricultural land which will be lost, the reclamation plan. Other issues such as the effect of the proposed reclamation plan on Tully Lake and the downstream wetlands and the air quality impacts from the crushing and screening plant are likely to be issues for adjudication depending upon completion of the SEIS. Certain other issues such as the mining plan and the traffic impacts may become issues for adjudication, depending on the information to be provided by the Applicant. The issues for adjudication might be abbreviated or avoided, if the Applicant makes changes to the proposed project. Whether these issues will remain after preparation of the SEIS, can only be determined when the SEIS is available as discussed below.

The air permit application and the SEIS shall be submitted to the Department Staff. After the Department Staff have reviewed the application for completeness and the SEIS for adequacy, the Department Staff shall forward a copy of the air application and the SEIS to the Administrative Law Judge and the parties on the Official Service List. At that time, the Administrative Law Judge will promulgate a Notice of Availability of the SEIS and the air application and allow time for the parties to submit their comments and/or reconvene the Issues Conference. A determination can then be made on whether substantive or significant issues still exist or whether the issues have been resolved.

APPEALS

Pursuant to 6 NYCRR 624.4(f), any ruling of the Administrative Law Judge denying or limiting party status may be appealed to the Commissioner in writing within three days of the ruling. Pursuant to 6 NYCRR 624.6(d), the ruling of the Administrative Law Judge setting forth the issues for the hearing may be appealed to the Commissioner in writing within three days of the ruling. At the Issues Conference, the parties present agreed that the time limit for any appeals of the Administrative Law Judge's rulings on these matters would be within 10 days of receipt of the rulings. A copy of the Official Service List for these proceedings is appended to this memorandum as Attachment B.

Appeals to the Commissioner should be addressed to:

Commissioner Thomas C. Jorling
New York State Department of Environmental Conservation
50 Wolf Road, Room 604
Albany, New York 12233-1010

Copies of any appeal and any accompanying briefs should be provided to all parties listed on the Official service List as set forth above.

ISSUES RAISED BY TULLY LAKE PROPERTY OWNERS' ASSOCIATION:

Legal Issues

The Tully Lake Property Owners' Association has proposed three legal grounds for denial of the application: a prior decision of the Department resulting in a "positive declaration" that the project would have an adverse impact on the environment; the Town of Preble zoning ordinance which precludes this project at this location; and that a precedent could be set for further mining in the area.

_____________/s/_____________
William J. Dickerson
Administrative Law Judge
Albany, New York

Dated: August 4, 1993

8-0109.2 of the Environmental Conservation Law requires that a detailed final environmental impact statement be prepared on any action which may have a significant effect on the environment. The purpose of a final environmental impact statement is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to approve such action. 8-0109.2 also mandates that such a statement include the following:

a description of the proposed action and its environmental setting; the environmental impact of the proposed action including short-term and long-term effects; any adverse environmental effects which cannot be avoided should the proposal be implemented; alternatives to the proposed action; any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented; mitigation measures proposed to minimize the environmental impact; the growth-inducing aspects of the proposed action, where applicable and significant; effects of the proposed action on the use and conservation of energy, where applicable and significant; effects of the proposed action on solid waste management, where applicable and significant; copies or a summary of the substantive comments received by the agency and the agency response to such comments.

8-0109.4 of the Environmental Conservation Law mandates that when a lead agency determines that an environmental impact statement is required, a draft environmental impact statement shall be prepared. The purpose of a Draft Environmental Impact Statement (DEIS) is to relate environmental considerations to the inception of the planning process, to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment and to solicit comments which will assist the agency in the decision making process in determining the environmental consequences of the proposed action. The DEIS shall describe the proposed action; alternatives to the proposed action; and briefly discuss the items required for an FEIS set forth above.

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