John Ernst, Agency Chair, Members and Designees January 10, 2022
NYS Adirondack Park Agency
P.O. Box 99
Ray Brook, NY 12977
Re. Project 2021-0075, Red Rock Quarry, Forestport, White Lake
Dear Chairman Ernst, Members and Designees,
Adirondack Wild has serious concerns about the Staff Draft Permit proposed to be issued to Red Rock Quarry Associates, LLC. Our concerns are twofold:
- In light of the extraordinary level of public interest in this complex project, it should be subject to an adjudicatory public hearing pursuant to Part 580 of the Agency’s Rules and Regulations;
- The draft permit contains no Findings of Fact upon which the issuance of the permit can be sustained. Further, the absence of Findings of Fact is not confined to this permit but is an issue that applies to other permit decisions.
Project 2021-0075 should be directed to an adjudicatory public hearing. This is a complex project involving extraction, drilling, blasting, crushing and transportation of mineral resources in a heavily settled residential and recreational area. It has also drawn an unprecedented level of concern by local residents. The first two criteria alone, under 9 CRR-NY 580.2 (a) thus strongly support a determination to hold an adjudicatory public hearing. Mineral extraction activities, especially in areas such as this, are notoriously incompatible with the surrounding uses and have been historically subject to adjudicatory hearings.
An application for granite extraction at this very location at White Lake was submitted to the Adirondack Park Agency in 2000. During that 2000 permit review APA staff expected the following to be performed because their results were needed to render a comprehensive and legal Agency determination. Studies requested by APA in 2000 but not requested nor undertaken as part of Project 2021-0075 review include:
- A professionally prepared study of noise related impacts of actual versus anticipated decibels conducted in concert with the APA staff;
- A professionally prepared study of visual impacts employing well known APA tools and methods of siting and analyzing visual impacts;
- A detailed written study of all proposed water usage, storage, treatment, and flow management;
- A hydrological study of the area including site specific ground water location, depth to groundwater at the project site, a water table map, flow direction and transmissivity.
The proposed quarry lies above a principal aquifer. The applicant is estimating depth to groundwater at the proposed mine site and the separation between granite excavation and groundwater at the mine site. Estimates ought to be insufficient for Agency review; - A dust control study;
- An engineering study, conducted in coordination with the town highway department, assessing the adequacy of Stone Quarry Road to perform as required by the application, including what is required for its long-term maintenance;
- Professional study of blasting and ground vibration related to blasting, to be scoped in coordination with APA staff;
- Alternative potential uses of the proposed quarry, including the economic implications of feasible alternative uses versus the desired use as a granite quarry. The results of these professional studies in 2022 are likely to present significant issues relating to the criteria for approval of this project; have a high likelihood that the project can only be approved if major modifications are made or substantial conditions are imposed; and the information presented from those studies would assist the agency in its review. All criteria for an adjudicatory hearing are met. These studies are needed to render a rationale and comprehensive permit decision under the Act. The only way they can be undertaken now is through a Public Hearing employing sworn expert testimony.
The absence of any Findings of Fact in Permit 2021-0075 raises significant legal and practical issues. We understand that in an effort to streamline the review of Minor Projects (Single family dwelling, mobile home or two-lot subdivision) the Agency has eliminated Findings of Fact from permits.
This practice, however, is wholly inappropriate for complex projects such as White Lake Quarry for the following reasons:
- It is a fundamental principle of law that agencies have a “rational basis” for their regulatory decisions. In that regard, there must be a nexus between permit conditions and the harm they seek to address. A permit condition must be linked to an identified impact. In this draft permit, no impacts have even been identified. Moreover, it is impossible to tell, based upon the information in the permit, whether the draft conditions are sufficient and how the applicable development considerations have been applied to the project in order to render a determination of no undue adverse impact.
- Actions of the APA in administration of Class A and B Regional Projects are exempt from the procedures of the State Environmental Quality Review Act (SEQRA), because APA procedures substitute for those in SEQRA and its implementing Regulations. The extensive SEQRA case law has established that agencies must take a “hard look” at proposed actions and provide a “reasoned elaboration” of key facts and rationale for their decisions. Projects in the Adirondack Park are exempt from the need to prepare either a Negative Declaration or Environmental Impact Statement because APA review, according to the procedures and substantive requirements of the APA Act and implementing regulations, is assumed to satisfy SEQRA’s requirements.
Where, however, the APA permit, such as in this case, contains no Findings of Fact, it is impossible to determine whether it took the requisite hard look at this project nor whether its decision adequately considers adjacent landowners and the environment.
We respectfully suggest that the APA immediately review its current practice of eliminating Findings of Fact for major projects. We request that the staff amend the draft permit with Findings of Fact for discussion by the full Agency. For the reasons set forth above, we also request that this project proceed to an adjudicatory public hearing.
Thank you for considering our comments.
Sincerely,
David Gibson, Managing Partner
Richard W. Hoffman, Board Director
and Sec. of State Designee to Adirondack Park Agency, 1998-2008
Adirondack Wild: Friends of the Forest Preserve
P.O. Box 9247. Niskayuna. NY 12309
518.469.4081
www.adirondackwild.org
cc: Terry Martino, Executive Director
Rob Lore, Regulatory Programs
Chris Cooper, Counsel
Rajiv Shah, Executive Chamber