PAUL M. FREEMAN
ANDREW B. HOWARD MATTHEW J. GRIESEMER BRIAN P. HENCHY MATTHEW J. GALLAGHER* •ALSO ADMITTED IN MA
Via Email and First Class Mail
Tracey O’Malley
Environmental Analyst
NYS DEC, Division of Environmental Permits 21 South Putt Corners Road
New Paltz, New York 12561
RE: Red Wing Roe-Jan Plant
Dear Ms. O’Malley:
P.O.BOX 1328 441 EAST ALLEN STREET HUDSON, NEW YORK 12534
518-828-2021 PHONE 518-828-2420 FAX
Freeman – Howard ATTORNEYS AT LAW
April 26, 2019
Please be advised that this office is legal counsel to the Town of Clermont. Recently, the Town of Clermont Planning Board was made aware of a pending application with the New York State Department of Environmental Conservation (“NYSDEC”) from Red Wing Properties, Inc. for its property located within the Town of Clermont. As a consequence, the Town’s engineer, George Schmitt from CPL, reached out to your Office to inquire about the status of the alleged application. I have reviewed an email communication sent to Mr. Schmitt from your Office including:
1. A Letter from Griggs-Lang consulting Geologists, PC, dated September 17, 2018; 2. A notice of Incomplete Application, dated November 13,2018;
3. A cover letter from Red Wing properties Inc dated January 11, 2019;
4. A Mining Permit Application, dated January 14, 2019; and
5. A Short Environmental Assessment Form (“SEAF”), dated January 14, 2019.
From a review of these documents, it appears that the project application was deemed incomplete by NYSDEC and remains incomplete at this time. We also understand that the NYSDEC adheres to strict pre-determined time lines when reviewing mining permit applications. It is our belief that the application to NYSDEC is indeed incomplete and, with respect to any submission or review by the Town of Clermont, wholly inaccurate and non-existent.
The impacts of the application are local as opposed to regional or statewide in nature (i.e. traffic impacts, noise and dust generation) subjecting the applicant to the full weight and jurisdiction of the zoning laws of the Town of Clermont. Specifically, from the materials submitted, it appears that the applicant expressly requests permission to process 15,000 cubic yards per month of imported material at the existing site. As you are well-aware, the existing site operated as a mine where material was extracted/removed and processed on-site. The applicant’s intent to process material imported from off-site does not constitute “mining” under the applicable provisions of the New York State Mined Land Reclamation Law (“MLRL”). In particular, the definition of mining in the MLRL is: the extraction of overburden and minerals from the earth; the preparation and processing of minerals, including any activities or processes or parts thereof for the extraction or removal of minerals from their orisinal location and the preparation, washing, cleaning, crushing, stockpiling or other processing of minerals at the mine location so as to make them suitable for commercial, industrial, or construction use; exclusive of manufacturing processes, at the mine location; the removal of such materials through sale or exchange, or for commercial, industrial or municipal use; and the disposition of overburden, tailings and waste at the mine location.
(NY Env. Cons. L. §23-2705 [emphasis added]). In the last sentence of paragraph one of the September 17, 2018 letter from Griggs-Lang Consulting Geologists, PC, the applicant expressly notes that it intends to use the site to process material from imported off-site mine locations, not extract and process material from the mine location. This use does not constitute “mining” and the automatic NYSDEC authority under the MLRL does not apply. As a result, pursuant to 6 NYCRR Part 617, the applicant is required to submit a site plan application and obtain any necessary approvals/variances from the Town of Clermont. In connection therewith, the Town will likely act as Lead Agency in conducting any environmental review on the application.
Furthermore, it appears that the applicant’s mining permit application contains several patent errors. Firstly, the applicant erroneously states that the local government does not have any permit jurisdiction (questions 12a and 12b respectively) when, in reality, the Town of Clermont does have permit jurisdiction. Secondly, the subject parcel is located within the RA zone of the Town of Clermont and the Roe-Jan Corridor. As such, the Zoning Code for the Town of Clermont only allows mining via special use permit. The current mining operation does not have any such special use permit. Finally, the change of use from on-site mining activities to the processing of imported materials negates any possible prior existence non-conforming status that the current mining operation may enjoy.
Additionally, in consultation with the Town’s engineer, the SEAF seems woefully inadequate for the proper review of this application. As a threshold matter, a Full Environmental Assessment Form and Environmental Impact Statement should be required as this is likely a Type I Action under the New State Environmental Quality Review Act (“SEQR”). The questions answered on the SEAF also have numerous errors:
1. The response to question 2 fails to identify the required approvals and permits from the Town of Clermont.
2. The total acres controlled reposted in question 3 does not agree with the response provided by the applicant on the submitted mining permit application.
3. The response to question 5 A is arguably no since the mining use would require special use permit and the operation does not have one.
The response to question 5b is no, since the comprehensive plan and the Zoning law clearly indicated that any commercial use would need to be harmonious with the neighborhood. 5. The response to question 8 of the SEAF indicates the proposed action would result in the substantial increase in traffic above present levels. A traffic study of same is warranted.
The response provided to question 12 a indicates the site is not within an Archeological Sensitive Area. However, a review of the CRIS shows that it is.
Finally, it is the opinion of this firm that the following materials are required for further review of the subject application:
1. Complete mapping of the mine site, showing topography, current and proposes locations of material stockpiling and processing areas, limits of life of mine, property boundaries and any current or proposed reclamation areas;
2. A copy of the current mining permit; 3. An in-depth Sound Stud;
4. Analysis of dust generation; and
5. A comprehensive traffic analysis.
Upon receipt and review of the above listed materials, further comments may be forthcoming.
Thank you for your time and attention in this matter. If you have any questions or comments, please feel free to contact the undersigned.
Matthew J. Griesemer, Esq.
Hon. Raymond Staats, Town Supervisor George Schmitt, Town Engineer
Livingston Neighbors 