DEC rules Palumbo mine plan needs full review

By: Bob Audette , Staff Reporter Harlem Valley Times April 7 , 2005

DOVER After further review, a state agency has decided the Palumbo Sand and Gravel Mine does not have "grandfather " status to proceed with gravel excavation without a full environmental review.
The attorney for the Palumbo operation, William Gilberti, was notified in a March 17 letter from the state DEC that " ... the proposed mining activity is not grandfathered for the activity sought to be undertaken per the requested Mined Land Reclamation ("MLR") permit modification by the permittees."
The company must comply with a SEQRA (State Environmental Quality Review Act) review on the environmental impacts of its proposal.
"I'm pleased that DEC carefully reviewed the town's comments and reversed their decision on grandfathering," said Supervisor Jill Way.
The letter advised Gilberti that sites with similar proposals to mine sand and gravel from below groundwater " ... have been permitted only after a SEQRA review was conducted."
In September 2004, Palumbo asked DEC for permission to dig up to 55 feet deeper than the floor of the gravel mine.
According to a protest letter, filed by town attorney Shannon Martin LaFrance in December 2004, "The department originally typed the application to expand the mining activities as a Type I action, indicating that the proposal was most likely to have significant adverse impacts."
According to LaFrance, because DEC initially classified the request a Type 1 action, requiring a SEQRA review, Dover officials accepted the fact that DEC wanted to be lead agency.
Halfway through the process, however, LaFrance said DEC announced its decision that the Palumbo request was actually a grandfathered action.
" ... The department's present misapplication of the SEQRA 'grandfather clause' would potentially have catastrophic effects on our natural resources if applied to other mines in the state ... " states the letter.
The town's response was to ask LaFrance to prepare an Article 78, the official process of contesting a state agency's decision.
"The DEC's decision sets a very dangerous and faulty precedent, not only for Dover, but for the whole state," said Way in February.
The DEC's letter to Gilberti though, said Palumbo could still receive a negative declaration under SEQRA. A negative declaration would indicate that mining below the groundwater level would have no significant environmental impact.
A negative declaration also means Palumbo would not have to submit an environmental scoping document and an environmental impact statement (EIS).
"Department staff are examining whether it would be appropriate to issue a Negative Declaration regarding this proposed application," said the March 17 letter, written by Vincent Altieri, the DEC's Region Three attorney.
"At least there is a process for determining its status," said Way, concerning the SEQRA review process. "It won't be an arbitrary decision and it won't have a far reaching impact that grandfathering does."
On March 18, LaFrance responded to the DEC's letter to Gilberti.
In her letter, LaFrance stated that since the DEC would not be issuing an MLRL (Mined Land Reclamation Law) permit to Palumbo, the DEC's November 2004 Notice of Complete Application " ... is ineffectual, as no application subject to SEQR can be complete under the Uniform Procedures ACT ("UPA") until the Department has a properly completed environmental assessment form and a negative declaration has been filed, or the Department has found that the project may have a significant effect on the environment ... "
LaFrance, in her letter, stated that, "Without a proper EIS (environmental impact statement), neither the public nor the DEC will ever know what the potential environmental harm of the proposal will be."
LaFrance admitted DEC had created a policy in February 2005 related to the vertical expansion of a mine when it ruled that a request from the Patterson Materials Corporation in Putnam County to do so was a Type II action, not requiring further SEQRA action.
"The Town ... requests that the Department's vertical expansion ... policy not be employed at all as it is contrary to the purpose and intent and the express provisions of SEQRA. A proposal to extend the vertical (sic) boundaries of the floor of an approved life of mine can create environmental impacts not previously addressed ... " said LaFrance's March 18 letter.

©Harlem Valley Times 2005

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