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WHIBCO, Inc. - Interim Decision, June 15, 1998

Interim Decision, June 15, 1998

50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

the Application of WHIBCO, Inc. for a Mined Land Reclamation Permit
pursuant to Article 23 Title 27 of the Environmental Conservation Law

DEC Application No. 5-4140-18/2-1


June 15, 1998


This Interim Decision decides an appeal to the Commissioner pursuant to 6 NYCRR 624.8(d) from Rulings of Administrative Law Judge ("ALJ") Susan J. DuBois dated April 26, 1996 in this matter. The ALJ's rulings are upheld, except with respect to two items which I find can be handled more effectively without resort to adjudication. Because Commissioner Cahill was the Department's General Counsel during pendency of the issues conference, the authority to issue this Interim Decision has been delegated to the Deputy Commissioner for Air and Waste Management.

Successive extensions of time for parties to appeal from the ALJ's Rulings were granted periodically subsequent to April 1996 to allow the parties an opportunity to seek a non-adjudicated resolution of the outstanding issues. However, the Department's Office of Hearings and Mediation Services was advised by letter dated April 17, 1998 from the Applicant that negotiations were unsuccessful. A briefing schedule for appeals was then established, this appeal was filed, and is now ripe for decision.

The Project

The Applicant, WHIBCO, Inc., seeks a Mined Land Reclamation Permit, to mine sand and gravel from 14.5 acres of a 23.5 acre parcel in the Village of Round Lake, Town of Malta, Saratoga County. Applicant proposes to excavate about 600,000 cubic yards of material over a five to ten year period, with concurrent reclamation of the mined area to open grassland.

Processing of the Application

A positive declaration under the State Environmental Quality Review Act ("SEQRA") was made by the Department, which assumed lead agency status. Upon receipt of the draft environmental impact statement ("DEIS") and other relevant application papers, the Department declared the application complete for purposes of review. The case was then referred to the Office of Hearings and Mediation Services, and assigned to ALJ DuBois in late 1995.

Hearings and Issues Conference

Public legislative hearings took place in the Village of Round Lake on January 4, 1996. An issues conference commenced the next day. The Village of Round Lake petitioned to intervene and was granted party status. The Village objected strenuously to the project. It maintains that the project is both inconsistent with the local zoning code, and is environmentally unacceptable. Pursuant to this Department's long-standing policySee Technical Guidance Memorandum MLR 92-2, May 4, 1992. See also Matter of Lane Construction Company, Interim Decision of the Commissioner, November 27, 1995., and established case lawTown of Poughkeepsie v. Flacke, 84 A.D.2d 1, 445 N.Y.S.2d 233 (2d Dept, 1981)., any zoning dispute between the Village and the Applicant must be resolved independently from a decision by the Commissioner on this application, and any MLR permit issued by this Department as a result of this proceeding would be without prejudice to the requirements of applicable local laws. Accordingly, the issues conference focused on the environmental issues which the Village sought to raise. These concerns were:

  • Wildlife resources - whether permitting the project would adversely impact habitat of wildlife species, including the Karner blue butterfly, an endangered species.
  • Community Character/Cultural Resources - whether construction and operation of the mine would adversely impact on the unique character and cultural resources of the Village, which is listed on the National Register of Historic Places and has a unique character and history.
  • Noise - whether the noise from machinery used to operate the mine as well as trucks entering and leaving the mine would be intrusive on the community, or whether noise could be attenuated sufficiently.
  • Visual impacts - whether adequate protection against adverse visual impacts can and will be provided.
  • Traffic - whether truck traffic from the mine can be adequately managed.
  • Stormwater management - whether the applicant's stormwater management plans are adequate.
  • Groundwater - whether the excavation of sand and gravel would adversely impact the water table and groundwater wells in the area.
  • Water supply/dust - whether operation of the mine would cause dust to enter the Village's open-topped water tank causing adverse quality, and whether the mining operation would cutoff access of the Village to the tower.
  • Old dump - whether an old dump alleged to be on or near the mine site exists, and if so, what should be done about it?
  • Safety - whether the construction and operation of the mine would cause safety problems, and/or become and alternative nuisance to children, and what should be done to control unauthorized access to the mine.

The ALJ's Rulings

The ALJ, in her issues rulings, accepted in part the issues raised by the Village as being substantive and significant issues for adjudication. In doing so, she emphasized the importance of the need for "a hard look" at the adverse environmental impacts of the proposed project, especially in light of the concerns raised by the Village and its residents. She also rejected certain of the issues proposed by the Village. The Applicant appeals from the ALJ's determinations as to adjudicable issues, and argues that there are no issues worthy of adjudication. The Department Staff has filed a memorandum which concurs with the Applicant. The Village in its reply memorandum, supports the ALJ's Rulings in all respects.

This decision upholds the ALJ's Rulings with respect to the adjudication of issues on the Karner blue butterfly, community character/cultural resources, noise, visual impacts and safety. With respect to each of these issues, the Village has raised points as to which I concur with the ALJ that further inquiry would be reasonable, and which could affect a final decision to grant, deny, or condition a permit. The Applicant's appeal on those issues is denied, and the reasoning in the ALJ's rulings is adopted.

On the other hand, I see no need for adjudication of the question whether an "old waste dump" does or does not exist on or near the site. Likewise there is no need for adjudication of whether the Village will be able to access its water tower.

As to the water tower issue, the Applicant admits that the mined land use plan provides that access to the tower will be maintained by Applicant. As such, continued access will be a requirement of a permit, leaving nothing to adjudicate. As to the "old dump" claim, the Village's assertion is speculative and not capable of adjudication. Staff's memorandum states that Staff is again investigating whether any dump exists on the property, and if something is found Staff promises to re-evaluate the situation. At this point, however, there is merely an assertion that the site of a former "dump" might be found on the property. Moreover, the consequences of a finding of the existence of a former "dump" on-site are unclear. A small site at which non-hazardous household waste was buried for a short time many years ago may have no significance whatsoever. Perhaps removal of an "old dump," as part of mining activity would have beneficial environmental results. There is no evidence to suggest that a meaningful affect on to health or the environment exists or is likely to arise by reason of past disposal activity at or near the site. The existence of any dump, its size, location or character, are simply unknown. Accordingly, there is nothing to adjudicate at this time. Staff should continue to evaluate the situation, and if appropriate a condition may be included in a final permit that would require immediate notification to the Department if, in the course of mining on the property, a former dump site should be uncovered. At that time a reasonable course of action can be formulated.In this regard, I am distinguishing this case on its facts from the circumstances set forth by the Court in Fairley v. DEC, No. 1635-91, Sup. Ct. Col. Co., May 20, 1991, cited in the ALJ's decision. In Fairley, the Court remanded a negative declaration determination where an applicant had used a portion of the proposed mining area for a Town garbage dump for three years. Here there is no confirmation of the existence of a disposal area, and any eventual permit can require notification of the Department if a former disposal site is found.

Archeology, Pre-Historic Artifacts

The Village's memorandum (p. 17) advises that several pre-historic artifacts were found in 1997 on nearby property. A letter dated June 1, 1998 from an archeological consultant to the Village describing this event is attached to the Village's brief. Staff is asked to advise the ALJ after consultation with the Office of Parks, Recreation and Historic Preservation whether this new information gives rise to a need for further study of the site, keeping in mind that general condition 13 of the draft permit provides for immediate notification of the DEC's Regional Office, and both work stoppage in the event that archeological or structural remains are encountered during excavation. As is the case with the old dump, the mere probability that something might be encountered in the way of archeological remains is not, of itself, a basis for ordering an adjudication of the issue.


The Deputy Commissioner's final determination in this matter will be based on the entire record after adjudication of the following issues identified by the ALJ:

  1. Karner blue butterfly
  2. Community character/cultural resources
  3. Noise
  4. Visual impacts
  5. Traffic
  6. Safety

I recognize that issues on community character/cultural resources, noise, visual impacts, and traffic tend to overlap. A final determination will necessarily involve a judgment that integrates all of the relevant facts with respect to all of those issues. As to safety, the parties should address reasonable safety needs, as well as the Village's understandable interest in the safety of its citizens, especially children. Fencing, other manmade barriers, and other alternatives can be evaluated, as well as the Village's authority under the Mined Land Reclamation Law with respect to safety. The Department is and will be sensitive to the Village's concerns with respect to all of these issues.

This matter is remanded to ALJ DuBois for further proceedings consistent with the above.

For the New York State Department Of
Environmental Conservation
By: Carl Johnson, Deputy Commissioner
for Air and Waste Management

Albany, New York
June 15, 1998

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