Whetzel, Kim K - Decision, March 31, 1998

Decision, March 31, 1998

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

In the Matter

- of the -

Application of KIM K. WHETZEL for Modification of a Mined Land Reclamation Permit
for an existing sand and gravel mine in the Town of Candor, Tioga County,
pursuant to Environmental Conservation Law Article 23, Title 27

DEC Application No. 7-4924-00015/00001

DECISION

March 31, 1998

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Susan J. DuBois in the matter of the application of Kim K. Whetzel (the "Applicant") for modification of a permit for a sand and gravel mine in the Town of Candor, Tioga County is hereby adopted as the Decision in this matter subject to my comments below.

The hearing was requested by the Applicant in order to contest a permit condition which the Department Staff included in his most recent permit. On July 2, 1996, the Applicant had applied for renewal and modification of his permit. The modification involved expansion of the mine onto a second parcel of land adjacent to the original mine, and changes in the mine's operations including elimination of the original permit's limitations on the days and hours during which the mine could operate.

The Town of Candor, in making its determinations on the application for renewal and modification pursuant to Environmental Conservation Law Section 23-2711.3, supported retaining the condition restricting days and hours of operation which had been in the original permit for the mine. The modified permit which the Department Staff issued in 1997 contained a condition (Special Condition No. 23) on days and hours of operation which differed from that in the original permit. The Applicant, who had requested that the condition be eliminated entirely, requested the present hearing.

The record of the hearing supports further revision of the permit condition but not its total elimination. For the reasons stated in the hearing report, Special Condition No. 23 should be replaced by a revised permit condition which is consistent with the condition recommended in the hearing report. This revised condition places certain time limits on specific activities for the benefit of residences near the mine, while not unreasonably restricting the operation of the mine.

The Department Staff is directed to revise the permit to replace Special Condition No. 23 of the May 20, 1997 permit with a permit condition consistent with the recommendation of the ALJ in her hearing report. The Regional Director is authorized to modify the specific wording of the condition recommended by the ALJ as appropriate to carry out the intent of this decision.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Albany, New York
March 31, 1998

HEARING REPORT

By

/s/
Susan J. DuBois
Administrative Law Judge

PROCEEDINGS

Kim K. Whetzel (the "Applicant"), 2935 Slaterville Road, Brooktondale, New York 14817-9504, applied to the Department of Environmental Conservation (the "Department") for modification of a Mined Land Reclamation permit for an existing sand and gravel mine. Following issuance of a modified permit, the Applicant requested a hearing to contest one of the special conditions included in the modified permit, which condition governs the hours of operation of the mine. The present report concerns the hearing which was held on this contested permit condition.

The permit in question is a Mined Land Reclamation permit issued pursuant to Environmental Conservation Law (ECL) Article 23, Title 27 and Parts 420 through 423 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Parts 420-423). Procedures governing hearings on these permits are contained in ECL Article 70 (Uniform Procedures) and in 6 NYCRR Part 624.

In 1994, the Applicant applied for a permit for the mine, which is located east of Coddington Road and approximately one mile north of the community of Willseyville, in the Town of Candor, Tioga County. The permit was issued on August 2, 1994, with an expiration date of August 2, 1999. On July 2, 1996, the Applicant applied for renewal and modification of his permit. The modification, among other changes, included mining on a second parcel of land immediately south of the original mine and eliminating the permit condition that restricted the mine's hours of operation. Following two notices of incomplete application and responses to these from the Applicant, the application was determined to be complete on December 27, 1996. On the same date, the Department Staff issued a negative declaration, finding that the project would not have a significant impact on the environment, pursuant to ECL Article 8 and 6 NYCRR Part 617 (State Environmental Quality Review, "SEQR").

Also on December 27, 1996, the Department Staff notified the Town Supervisor of the Town of Candor about the application, as required by ECL Section 23-2711.3. On January 16, 1997, Eric Carl, then Supervisor of the Town of Candor, wrote to Michael Barylski of the Department's Region 7 Sub-office in Cortland and stated that it was the Town's position that the original permit condition pertaining to hours of operation be incorporated in the new permit.

On May 9, 1997, the Applicant's consultant wrote to the Department and requested issuance of the permit pursuant to 6 NYCRR Section 621.9(b), since a decision had not been issued within the required time. On May 20, 1997, the Department issued a modified and renewed permit in which the condition limiting hours of operation of the mine was modified but not removed (Special Condition 23).

On June 17, 1997, the Applicant requested a hearing on Special Condition 23 of the modified permit. The Department Staff referred this request to the Office of Hearings and Mediation Services on November 14, 1997 and a hearing was scheduled.

Notice of the hearing was published in the Tioga County Courier on December 17, 1997 and in the Department's Environmental Notice Bulletin on December 17, 1997. The notice was also mailed to the Town Supervisor, Town Clerk and Town Attorney of the Town of Candor, to the County Clerk and the Clerk of the County Legislature of Tioga County, and to three persons who reside adjacent to or near the mine.

The hearing took place on January 22, 1998 at the Town of Candor Town Hall before Susan J. DuBois, Administrative Law Judge (ALJ). The hearing included an opportunity for public comment, an issues conference and an adjudicatory hearing which all occurred on that date. No petitions for party status were received and the only parties to the hearing were the Applicant and the Department Staff. The issue to be adjudicated was identified by agreement of the parties as being whether Special Condition No. 23 of the modified permit should be removed.

Following the issues conference and prior to the adjudicatory hearing, the parties attempted to settle the matter first by discussion between themselves and then by means of mediation with the assistance of the ALJ. Before proceeding with the mediation, the Department Staff requested and the Applicant agreed that the same ALJ would conduct the adjudicatory hearing if the mediation did not produce a settlement. This mediation took place, with the representatives of the Town also present. The parties did not reach an agreement, however, and proceeded with the adjudicatory hearing.

The Applicant was represented at the hearing by Patrick M. Snyder, P.E., Esq., Cortland, New York. The Department Staff was represented by William Gallagher, Esq., Assistant Regional Attorney, Syracuse.

The Applicant testified on his own behalf and also called as witnesses Jonathan W. Harrington, Ph.D., CPG, of Harrington Associates Consulting Geologists, Groton, New York, and Joseph S. Moskiewicz, Mined Land Reclamation Specialist I, DEC Region 7, Syracuse.

The Department Staff called as witnesses Michael K. Barylski, Deputy Regional Permit Administrator, DEC Region 7, Cortland; Matthew Morris, Building and Codes Officer for the Town of Candor; and Thomas A. Gragg, Environmental Engineering Technician 2, DEC Region 7, Syracuse.

The hearing record closed on February 6, 1998, upon receipt of the transcript.

SUMMARY OF PUBLIC STATEMENTS

Terry E. Collins, Supervisor, Town of Candor, stated that the Town Board was opposed to having unlimited hours of operation at the mine. He stated that the Town needed to look out for the interests of the homeowners who live nearby at present and those who might live there in the future, and that the Town saw no reason for the mine to have unrestricted hours.

Verne A. Quick, Sr., Willseyville, stated that he had no problem with the Applicant working on weekends and other times, although it might be a concern to some future resident of his house if he were to sell it. He stated that he would not want the mine to be operating all night, but that the Applicant had assured him that the mine would not be doing this.

Matthew Morris, Building Codes Officer, Town of Candor, supported the Department Staff's position. He stated that the Department Staff's documents on the original application recommended taking into account development of the property which is surrounded on three sides by the mine [Mr. Quick's property]. Mr. Morris stated that the existing permit condition did take this into consideration and was appropriate.

POSITIONS OF THE PARTIES

The Applicant requested that Special Condition No. 23, which limits hours of operation of the mine, be deleted from the permit, based on the location and circumstances of the operation. The Applicant stated that conditions of this type are included for the benefit of nearby homes, but that in the present situation such a condition is not warranted.

The Department Staff stated that limiting hours of operation is a recognized means of controlling noise from a mine and that a permit condition on this was included in the original permit for the mine. The Department Staff stated that the permit condition had been changed somewhat to be less restrictive but that the Department Staff believes the present limitation is still warranted and protective of the environment.

FINDINGS OF FACT

1. Kim K. Whetzel (the "Applicant") operates a sand and gravel mine on property (the "Site") which he owns, east of Coddington Road approximately one mile north of Willseyville in the Town of Candor, Tioga County. The Department issued a Mined Land Reclamation Permit for this mine in 1994 and renewed the permit with modifications in 1997. The site was expanded by the Applicant's 1995 purchase of property immediately south of the original site. The present site is 128.4 acres, of which the approved mine is 87.1 acres.
2. The site is located on the floor of a valley which is oriented approximately north-south. Coddington Road, a County highway, runs along the western edge of the site. An abandoned railroad bed, Willseyville Creek and a portion of a Department-regulated wetland (wetland SD-1) are located along the eastern edge of the site. There are three residences north of the northwest corner of the site, one at the southwest corner of the present site, and one residence (that of Verne Quick, Sr.) on a parcel of land on the east side of Coddington Road. This last parcel is surrounded on three sides by the mine (see Appendices 1 through 3 of this Report).
3. The mine, as permitted in the 1994 permit, had its western boundary approximately 160 to 340 feet from Coddington Road. Visual screening from the road was provided by the topography and by existing vegetation. Under the modified permit, the mine boundary is now 25 feet from the site boundary along the road. The modified permit, issued in 1997, requires construction of a vegetated berm along the mine's western boundary (Special Condition No. 22). The modified permit also requires that overburden be stockpiled to form a physical barrier (berm) between the mine and residences directly north of the mine, and between the mine and Mr. Quick's property (Special Condition No. 21). The berm along the road is a requirement that was not in the 1994 permit, although the berm at the north end and at what is now Mr. Quick's property were.
4. Under the original permit, the boundary of the mine was approximately 250 feet from the residences at the northwest corner of the mine. This boundary was not changed in the mining plan which is included in the modified permit. Mining on the site began in the northwestern part of the mine and will progress generally southward, except for the final phase of excavation along the eastern boundary of the mine.
5. At the time of the original permit application, the property on the western edge of the site was owned by Joanne Salameida and there was a trailer on the property. This is the parcel which is currently owned by Mr. Quick. Mr. Quick bought the property after the original permit was issued and before the June, 1996 application for modification of the permit. The mining map which was included in the application for modification shows a house on this property.
6. Limitations on the hours during which mines can operate are primarily used in order to limit off-site noise. If noise near a mine cannot be adequately reduced by reducing the noise at its source nor by reducing transmission of noise, the noisy activities can be confined to certain times in order to address the nuisance.
7. Eliminating the permit condition which is in dispute in the present hearing (Special Condition 23) would not change the acreage which is allowed to be mined nor the types of mining processes that are currently permitted, with the exception that operations conducted after dark would require use of lights. Under the existing permit, the mine would have the ability to produce a larger amount of minerals than it is at present, once the permitted facilities are in full operation.
8. The condition in the 1994 permit which had to do with hours of operation was Special Condition No. 22, which provided as follows:

   "Mining activity, mineral extraction, trucking activity and removal of materials or products from the mine site shall be limited to the following hours of operation.

   Monday - Saturday 7:00 a.m. - 6:00 p.m.
   or sunrise to 6:00 p.m., whichever is more restrictive

   Sundays and Holiday NO OPERATION"

9. On December 27, 1996, the Department Staff sent the application for the permit modification (expansion of the mine and addition of a wash plant, as well as elimination of Special Condition No. 22) to the Town of Candor for its determination concerning the subjects listed in ECL Section 23-2711.3. These subjects may be summarized as: setbacks, natural barriers, dust control, hours of operation, and whether mining is prohibited at the proposed location.
10. Eric Carl, former Supervisor of the Town of Candor, wrote to the Department Staff on January 16, 1997 and stated that the Town's position was that Special Condition No. 22, pertaining to hours of operation, be incorporated into the new permit. The letter stated that in granting the original permit, the Department weighed the impact of mining on residents to the north and also on the property now owned by Mr. Quick. The letter noted that a home had been built on Mr. Quick's property subsequent to the August 1, 1994 amended negative declaration for the original permit, and that it would seem unwarranted to lift the hours of operation restriction. The letter also supported construction of a berm where applicable around the mine site, to limit visual and noise impacts.
11. On May 9, 1997, the Applicant's consultant wrote to the Department Staff pursuant to 6 NYCRR 621.9(b), requesting that a decision be made on the application for modification of the permit. The renewed and modified permit was issued on May 20, 1997.
12. The condition governing hours of operation in the 1997 permit is Special Condition No. 23, which provides as follows:

    "Mining activity, mineral extraction, trucking activity and removal of materials or products from the mine site shall be limited to the following hours of operation:

    North of the Quick North Property Line
    Monday - Friday 6:00 a.m. - 7:00 p.m.
    Saturday 7:00 a.m. - 6:00 p.m.
    Sundays & Holidays NO OPERATION

    South of the Quick North Property Line
    Monday - Saturday 7:00 a.m. - 6:00 p.m.
    Sundays & Holidays NO OPERATION

    Trucking activity associated with retail sales from processed material stockpiles may occur from sunrise to sunset for a maximum of 30 days during any calendar year. The permittee and mine operator shall keep and maintain records of such occurrences at the mine and shall provide them to the Department upon request."

13. The Applicant contacted every homeowner within a distance of a half mile of the mine and discussed with them deletion of Special Condition No. 23. None of the homeowners opposed deletion of this condition. The Applicant also submitted, for the hearing record, letters from owners and/or residents of most of the land parcels within a half mile of the mine, including absentee owners. These letters stated that the person had read the permit, did not feel that there was a need to limit hours of operation of the mine, and would not object to deleting Special Condition No. 23. The residents who signed these letters included Mr. Quick and Rebecca Sherman-Quick, three residents of the parcel immediately north of the mine, and the homeowner at the southwest corner of the mine.
14. The Applicant wants to have Special Condition No. 23 deleted so that his mine can be more competitive with other sand and gravel mines in the area which do not have limitations on their operating hours. One of these mines is the Robinson mine, which is located south of the Applicant's mine and is also in the Town of Candor. At present, the Robinson mine produces approximately five times as much minerals as the Applicant's mine, but the Applicant could produce as much as Robinson under his present permit if there were a sufficient market for the product and if all of the permitted facilities at the Applicant's mine were in place.
15. Traffic going south from the Applicant's mine would go along Coddington Road into the community of Willseyville, where Coddington Road intersects with a Town road. The evidence in the record does not support any need for a limitation on hours of operation of the Applicant's mine based on use of this intersection by mine-related traffic.
16. At the hearing, there was discussion on the record and testimony regarding a modified permit condition which would provide that: removing and stockpiling overburden would be limited to 8:00 a.m. to 4:00 p.m. Monday through Friday, crushing and screening of minerals would be limited to 6:00 a.m. to 10:00 p.m. Monday through Saturday, the crushing and screening plant would be located a minimum of 400 feet away from any adjacent neighbor's homes, and any potential flood lights would be directed in an easterly direction and inclined below the horizontal. This condition would protect the community adjacent to the mine from impacts which are considered under the Department's mined land program, while taking into account the economic needs of the Applicant.
17. The correspondence regarding the 1996 request for renewal and modification of the permit includes some questions from the Department Staff about use of artificial lighting and the visibility of this lighting, and whether this would create any truck safety issues. The Applicant's response to this was that, "Obviously, the [A]pplicant does not plan to work 24 hours per day, 7 days per week. The mining operation will most probably take place during the daylight hours, and should not require the use of any artificial lighting." It appears likely, however, that working outside of the present hours could require artificial lighting during times of the year when the days are shorter. There are no roads or residences between the east side of the mine and the hill east of the mine. The hearing record contains no indication that additional screening would be needed nor that there would be adverse effects on safety nor on aesthetic values if lighting was treated as described in Finding 16.

DISCUSSION

The primary reason for limiting the hours of operation of this mine would be to protect the mine's neighbors from noise impacts. Mining activities have now moved away from the residences north of the mine, although there will be mining near Mr. Quick's house and eventually near the house south of the mine. The permit presently includes additional berms that were not in the original permit, which are also a means of noise control.

An additional concern about the mine's operating schedule was brought up during the testimony in the hearing. The Department Staff called as a witness the Town Building and Codes Officer, Matthew Morris, who testified that the Applicant's mine differs from the Robinson mine in that the latter is screened by the surrounding topography, and that the trucks from the Applicant's mine go through residential roadways while those from Robinson's mine go onto Route 96B. He testified that truck traffic going through the intersection in Willseyville at the south end of Coddington Road would be hazardous at night.

The hearing report does not rely on this testimony, for several reasons. Mr. Morris stated that at night it would be harder for other drivers to see trucks entering the intersection. Mr. Morris's description of the intersection did not provide any reason to believe that trucks entering it at night, with their lights on, would be less visible than during the day. Mr. Moskiewicz's testimony, that the truck traffic patterns would not support imposition of different conditions on the two mines, is more credible. Although Coddington Road is a county road, and Tioga County had notice of the hearing, the County did not appear nor send written comments. The question of the safety of the intersection did not even appear to have much weight in the Town's evaluation of the mine, since neither Mr. Morris nor Mr. Collins mentioned the intersection in their statements at the start of the hearing and it was not mentioned in former Town Supervisor Carl's January 16, 1997 letter.

ECL Section 23-2711.3 allows the chief administrative officer of the political subdivision in which a proposed mine is located to make determinations in regard to certain subjects including hours of operation of the mine. Such determinations are to be accompanied by supporting documentation justifying the particular determinations on an individual basis. "If the department finds that the determinations made by the local government ... are reasonable and necessary, the department shall incorporate these into the permit, if one is issued. If the department does not agree that the determinations are justifiable, then the department shall provide a written statement to the local government and the applicant, as to the reason or reasons why the whole or a part of any of the determinations was not incorporated." (ECL 23-2711.3(b)).

In the present case, the Applicant questioned whether the Town had provided supporting documentation to support its determinations. The documentation would be necessary in order for the Department Staff to evaluate whether to incorporate these determinations into the permit. The Department's statement as to the reasons why the hours condition was changed, which statement was included in the May 20, 1997 transmittal letter for the modified permit, was quite general. The issue can, however, be dealt with on its merits based on the information the parties presented in testimony at the hearing.

The Applicant has the burden of proof to demonstrate that his proposal will be in compliance with all applicable laws and regulations administered by the Department (6 NYCRR 624.9(b)(1)). The mined land reclamation regulations include a requirement that mining plans shall include a description of the applicant's proposed method for meeting various environmental objectives, and that methods such as mufflers, berms, fences, or equally effective substitutes may be used to accomplish the objectives (see 6 NYCRR 422.2(c)(4) for the actual text.) The Mined Land Reclamation Law (ECL Article 23, Title 27) includes among its policies: to foster and encourage the development of an economically sound and stable mining industry, and the orderly development of domestic mineral resources and reserves necessary to assure satisfaction of economic needs compatible with sound environmental management practices; to prevent pollution; and to protect the health, safety and general welfare of the people, as well as the natural beauty and aesthetic values in the affected areas of the state.

The Applicant is seeking to have Special Condition No. 23 removed entirely, and the Department Staff is seeking to keep Special Condition No. 23 in the permit. The Commissioner would also have the authority to modify the condition, based upon his own evaluation of the hearing record, rather than to adopt one or the other of the parties' positions.

In the present case, the permit condition described in Finding No. 16 would comply with the Mined Land Reclamation Law and its implementing regulations. Although the Applicant submitted evidence that the mine's neighbors would not object to having the hours limitation eliminated altogether, the present hearing report relies more heavily on the testimony of Mr. Moskiewicz in concluding that Special Condition 23 should be modified but not eliminated. None of the neighbors testified, but it is reasonable to think that their opinions are partly based on their experience with the mine in the past several years, when it has been operating at less than the level of activity which is allowed under its present permit. In contrast, Mr. Moskiewicz has many years of experience with the mined land reclamation program, experience with mines throughout DEC's Region 7, and familiarity with the program's reasons for imposing limitations on operating hours in permits for mines.

The Town's comment regarding the need to consider the mine's effect on future residents of the houses near the mine also weighs against eliminating Special Condition No. 23 entirely. Although the record demonstrates that this condition, as currently written, is not necessary, the record also supports a conclusion that the revised permit condition described in Finding No. 16 is reasonable and necessary. Under the revised condition, the mine could carry out most of its activities under an expanded or unlimited schedule, but specific activities would be conditioned to minimize their impacts.

The permit condition as described in Finding No. 16 would relax or eliminate the limits on the days and hours during which most of the mine's activities could take place, but would further limit the days and hours during which the Applicant could remove and stockpile overburden. The reasons for the change regarding the removal and stockpiling of overburden were not specifically discussed in the testimony, but the hearing record supports the inference that this provision is reasonable in that it limits a noisy activity while not unduly limiting the Applicant's mining activities.

The Applicant suggested the permit condition described in Finding No. 16 as an alternative the Applicant "could live with," if a condition on hours of operation were to be included at all, and elicited Mr. Moskiewicz's testimony that he would recommend this permit condition. The Applicant did not contest the particular provision regarding overburden. The mining plan and other exhibits indicate that removal and stockpiling of overburden would be taking place near the mine boundary and relatively close to the neighboring residences at times during the mine's operation.

A considerable amount of the testimony presented by both parties had to do with whether other mines in Candor and in neighboring towns had limits on days and hours of operation. Different conditions could be imposed on mines in the same general geographic area, based on site-specific conditions.

CONCLUSIONS

1. The permit condition identified in Finding No. 16 would be in compliance with the Mined Land Reclamation Law and its implementing regulations, and should be substituted for Special Condition No. 23 of the existing permit. The record supports including this modified limitation on the days and hours of operation, with the related provisions regarding location of the crushing and screening plant and the direction of lighting, rather than eliminating the condition entirely.
2. Pursuant to ECL 23-2711.3, in reviewing a permit application for a property not previously permitted under the Mined Land Reclamation Law, the local government may make determinations on certain subjects. The Department must evaluate whether the determinations are reasonable and necessary, and if so, incorporate the determinations into the permit if one is issued. In the present case, for the reasons stated in the present report, it is not necessary that the current Special Condition No. 23 remain in the permit. The permit condition identified in Finding No. 16, however, is reasonable and necessary.

RECOMMENDATION

I recommend that the permit be modified, by deleting existing Special Condition No. 23 and replacing it with the following condition:

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