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TOWN OF CONCORD TOWN BOARD
PUBLIC HEARING-Waterman Special Use Permit
7:00 p.m.
March 27, 2012
MEETING CALLED TO ORDER BY GARY A. EPPOLITO, SUPERVISOR.
PRESENT:
GARY A. EPPOLITO, SUPERVISOR
JAMES M. KREZMIEN, COUNCILMAN
WILLIAM F. SNYDER, III, COUNCILMAN
PAUL F. SALZLER, COUNCILMAN
DEBORAH A. KING, COUNCILWOMAN
ALSO PRESENT:
LAWRENCE KELLY
LYNNE WENDEL
NICK WENDEL
BERNADETTE WENDEL
JOYCE DEWALD
GENE WENDLEY
DARLENE SCHWEIKERT, Town Clerk
DEBORAH M. BARONE, Town Atty
MARK ALIANELLO, Town Engineer
GEORGE DONHAUSER
CANDY GREEN
ETHAN WATERMAN
GEORGE DEWALD
MARTY WENDEL
KEITH PLOETZ
Supervisor Eppolito opened the Public Hearing at 7 p.m. and noted that at the
completion of the Public Hearing, the Board would proceed with a Special Town Board
Meeting to vote on the Special Use Permit. Supervisor Eppolito had provided a timeline
on this application process which began three years ago.
Bernadette Wendel stated that she is a neighbor of the Watermans and is opposed
to the expansion for a number of reasons: (1) She feels it will be detrimental to her
business. They have thousands of chickens on their farm and if she doesn’t keep water to
her chickens constantly within hours she could have dead chickens. (2) Their business is
a USDA inspected plant which means that the water is tested on a regular basis. If they
fail a water test, they come back a couple days later and test again. If they fail, they are
shut down. (3) If the Town says yes to Waterman, they are not the only gravel pit in the
Town of Concord so if you say yes to them, how do you say no to anyone else?
Candy Green stated that she had attended one of the Planning Board meetings and
the Planning Board was questioning the Bond amount and the distance of 1000 foot for
the water impact. She lives just outside the 1000 feet distance and is worried about how
this might affect her well.
Nick Wendel noted that he was also at that Planning Board meeting and he was
curious if the Town of Concord could impose any special conditions on this permit or if
there had been any changes since the Planning Board meeting. Town Engineer Mark
Alianello noted that the DEC permit had already been issued by the time that Planning
Board meeting had been held and no changes have been made to the permit.
Councilwoman King asked why the DEC stopped at 1000 feet. Town Engineer
Alianello noted that in NYS the Mine Land Reclamation Law supersedes all local control
on mining. It states, “This title shall supercede all other state and local laws relating to
the extractive mining industry.” When the State Legislature set this up, they set up a
process to encourage development of natural resources so they were not going to let each
town control every aspect of it. They give the town the option of establishing zoning
districts where mining may or may not be allowed. Mining is only permitted in the Town
of Concord in the M-R District. In that M-R District it is allowed with a Special Use
Permit. It establishes certain areas where the town would have input in the process and in
the Town’s Zoning Law Section 150-104 it lists the Supervisor’s duties. It makes it the
Supervisor’s duties to participate in the DEC process as it relates to those issues. The
issues they enumerate are appropriate set-backs, man-made barriers, natural barriers,
control of dust, hours of operation, whether mining is permitted or not. When the Town
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first got notification from the DEC that they were going to do this, a letter was sent to the
DEC with our concerns and we added that we were concerned about the wells. That
issue had already come to the Town’s attention. The DEC advised that they thought the
hydrogeologist’s analysis of the impact on the water table that was done for this project
was one of the best ones that they have ever seen. What it showed is that the
groundwater is moving generally from east to west and they were able to document that
by the gradient on the groundwater table. The wells that are close to the mining
operations are all up gradient from the lake and groundwater is not static; it’s moving and
part of the finding was that this will not have an impact on the quality of water because it
is moving away from these wells. At some point we have to look at information provided
by those that understand the hydrogeology and present it to the DEC who also
understands hydrogeology and they came to the conclusion that they don’t see a potential
for impact. That did not satisfy the Health Department because they were still concerned
about the wells that were close and the Health Department sent a letter requesting that six
specific conditions be established. The most significant one was the one that said that
Waterman had to take responsibility for those wells. The DEC condition says that if
anything goes wrong with these wells (quality or quantity) Waterman has to fix it until
they can show the DEC that Waterman did not cause it or until the problem has gone
away. The DEC has made it so there is not a need for trying to prove that there is a
problem. The DEC is saying that Waterman has to prove that there is not a problem. As
far as the 1000 foot distance that was recommended by the hydrogeologists and the Erie
County Health Department determined that that was adequate based on the information
that they had. That is what the experts in the area thought were reasonable so the Town
went with that distance. The way the process works is all that give and take that went on
was all presented in Public Hearings so the public had an opportunity to speak about it at
that point. There was also a Scoping meeting. The DEC conducted public meetings and
that is when all the opportunity to change permit conditions happens during that process.
Once the DEC takes all that information and requires the applicant to prepare a final
Environmental Impact Statement (which is two binders of information), the explanation
of how the DEC came to their conclusions and what information the DEC used is
contained in that Environmental Impact Statement. The DEC finally reached a point
where they were satisfied with everything in November of 2011 and then the DEC issued
a findings statement which is part of the DEC permit and that is where the DEC
summarized the environmental impacts that they looked at and noted the activities that
will create environmental impacts and then they require the applicant to look at a number
of different alternatives to determine the one that will have the least negative impact on
the environment. The DEC’s conclusion was that the final FEIS was the best that they
could get and the DEC issued a permit to the applicant. All these concerns that the
neighbors have were vetted already during previous public hearings and the DEC is
ultimately the decision maker on that. The Town’s only role is to provide input and note
our concerns and we went through that process. Supervisor Eppolito noted that on April
16, 2009, he sent a letter to the DEC noting the Town’s concerns: the depth of the water,
set-backs, natural barriers, problems with residential property and farming businesses
located nearby. The Town gave their input of the concerns. Mr. Alianello noted that the
Waterman plan changed quite a bit as a result of this whole process. The DEC identified
impacts in a number of areas, not only with the wells, but with the air quality, traffic,
noise. The DEC set conditions on the permit that requires Waterman to mitigate the
impacts that were identified.
Town Engineer Alianello addressed the question that if you say yes to one, that
you can’t say no to somebody else. The only way that the Town Board has any authority
to say that there won’t be gravel mining is to change the zoning law to note that it is not a
permitted use. The Town can do that. If there is a concern that there are too many gravel
mines in the Town, then as the Town begins doing a Comprehensive Plan or Master Plan
for the Town, this could be reviewed. Any gravel mine that is already under permit is
going to be a non-conforming pre-existing use and the Town can’t change that. There is
not much the Town can do about it with this particular permit to stop it but the Town can
look at the Comprehensive Plan and then change the zoning. Supervisor Eppolito noted
that the Board discussed this at their last Board meeting. Town Engineer Alianello noted
that each applicant has to go through the same process that Waterman did. They would
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have to do a full environmental impact statement and look at the potential impacts on the
groundwater table and prove as Waterman did that their activities are not going to
negatively impact the well. Just because Waterman was able to prove it at his site, the
dynamics could be different on another site and the DEC would not issue a permit for it if
it is going to have any adverse impact.
Councilman Krezmien asked Ethan Waterman if there was a plan in place for the
water concerns so if anybody goes down with water there is a plan. Mr. Waterman noted
that there is a plan in place. The DEC has it. Mr. Waterman noted that during the
process the neighbors were contacted regarding their wells and some neighbors
participated and some did not participate. Mr. Waterman noted that the neighbor should
call the DEC or the local sheriff’s department who will then contact Waterman and
Waterman would call Engel’s Trucking and they would deliver the water to the neighbor.
Also Conway Trucking is also another source. Mr. Waterman noted that the next step is
determine what is wrong and drill another well if necessary. There are 11 wells on their
property they could use them to supply water if necessary.
George Dewald noted that what he can see coming down the road with the dry
winter and no snow, there may be well problems this fall regardless of the Waterman
operation. Town Engineer Alianello noted that Waterman had to decide whether they
could comply with that condition. Basically the DEC was saying that they are putting the
onus on Waterman and Waterman has to take care of these people until Waterman can
demonstrate that it wasn’t Waterman’s fault and Watermans agreed to that
Bernadette Wendel noted that if this is passed and goes through and two years
from now Waterman sells out to some big corporation. What would happen then?
Supervisor Eppolito noted that the new buyer would assume the entire responsibility.
Town Engineer Alianello noted that Watermans have bonds in place with the DEC. All
the financial responsibilities remain in effect. The only way Waterman can get the bonds
to end is to reclaim the site in a manner satisfactory to the DEC under the permit and if
Waterman doesn’t follow the reclamation plan that is on file, Waterman will have to file
a new reclamation plan for how he is going to leave it, that would have to be permitted
and then once it was completed, they would be released from the financial responsibility.
Nick Wendel asked that if this goes through, the responsibility of neighbor’s water is on
the responsibility of whoever is mining Waterman or a successor, is that only when the
mine is being mined or until the end of time? Nick Wendel wondered if it was just
during the mining when the bond is in place. What happens when the mine is done and
the bonds are paid back and something happens for whatever reason. Town Engineer
Alianello said he did not know but he can’t imagine that it would go on forever. His
guess is that it applies until the reclamation plan is finished.
Mrs. Green questioned whether the permit could be amended to include more
neighbors. Town Engineer Alianello noted that he thinks the permit could be amended on
the motion of the applicant but he is not sure that the DEC will open the conditions back
up. The DEC went through their detailed process that they did and once they establish
the conditions, those are the conditions. Mrs. Green noted that she wasn’t aware of this
project because she is outside that 1000 foot distance. Town Engineer Alianello noted
that it is 1000 feet from the life of mine limits and that is on their mining plan. It is not
1000 feet from where they are mining today, it is 1000 feet from where their ultimate
plan.
Supervisor Eppolito asked if there were any other questions. There were no
further questions. Councilman Krezmien, seconded by Councilman Salzler, to close the
Public Hearing at 7:55 p.m. Councilwoman King, Councilmen Krezmien, Salzler &
Snyder, Supervisor Eppolito voting aye. Carried.
______________________________________
Darlene G. Schweikert
Town Clerk