S T A T E O F N E W Y O R K
________________________________________________________________________
8026
I N S E N A T E
March 10, 2020
___________
Introduced by Sen. KAMINSKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to the
regulation of mining and the reclamation of mines within counties with
a population of one million or more which draw their primary source of
drinking water for a majority of county residents from a designated
sole source aquifer; and to repeal certain provisions of such law
relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 23-2703 of the environmental conservation law is
REPEALED and a new section 23-2703 is added to read as follows:
§ 23-2703. DECLARATION OF POLICY.
1. A. THE LEGISLATURE HEREBY DECLARES THAT IT IS THE POLICY OF THIS
STATE TO FOSTER AND ENCOURAGE THE DEVELOPMENT OF AN ECONOMICALLY SOUND
AND STABLE MINING INDUSTRY, AND THE ORDERLY DEVELOPMENT OF DOMESTIC
MINERAL RESOURCES AND RESERVES NECESSARY TO ASSURE SATISFACTION OF
ECONOMIC NEEDS COMPATIBLE WITH SOUND ENVIRONMENTAL MANAGEMENT PRACTICES.
SOUND ENVIRONMENTAL MANAGEMENT PRACTICES SHALL INCLUDE THE PROTECTION OF
WATER RESOURCES AND PUBLIC HEALTH WITHIN COUNTIES WITH A POPULATION OF
ONE MILLION OR MORE WHICH DRAW THEIR PRIMARY SOURCE OF DRINKING WATER
FOR A MAJORITY OF COUNTY RESIDENTS FROM A DESIGNATED SOLE SOURCE AQUI-
FER.
B. THE LEGISLATURE FURTHER DECLARES IT TO BE THE POLICY OF THIS STATE
TO PROVIDE FOR THE MANAGEMENT AND PLANNING FOR THE USE OF THESE NON-RE-
NEWABLE NATURAL RESOURCES AND TO PROVIDE, IN CONJUNCTION WITH SUCH
MINING OPERATIONS, FOR RECLAMATION OF AFFECTED LANDS; TO ENCOURAGE
PRODUCTIVE USE INCLUDING BUT NOT LIMITED TO THE PLANTING OF FORESTS, THE
PLANTING OF CROPS FOR HARVEST, THE SEEDING OF GRASS AND LEGUMES FOR
GRAZING PURPOSES, THE PROTECTION AND ENHANCEMENT OF WILDLIFE AND AQUATIC
RESOURCES, THE ESTABLISHMENT OF RECREATIONAL, HOME, COMMERCIAL, AND
INDUSTRIAL SITES; TO PROVIDE FOR THE CONSERVATION, DEVELOPMENT, UTILIZA-
TION, MANAGEMENT AND APPROPRIATE USE OF ALL THE NATURAL RESOURCES OF
SUCH AREAS FOR COMPATIBLE MULTIPLE PURPOSES; TO PREVENT POLLUTION; TO
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14356-04-0
S. 8026 2
PROTECT AND PERPETUATE THE TAXABLE VALUE OF PROPERTY; AND TO PROTECT THE
HEALTH, SAFETY AND GENERAL WELFARE OF THE PEOPLE, AS WELL AS THE NATURAL
BEAUTY AND AESTHETIC VALUES IN THE AFFECTED AREAS OF THE STATE.
2. EXCEPT AS PROVIDED BY THIS SUBDIVISION AND BY SUBDIVISION THREE OF
THIS SECTION, THIS TITLE SHALL SUPERSEDE ALL OTHER STATE AND LOCAL LAWS
RELATING TO THE EXTRACTIVE MINING INDUSTRY. NOTHING IN THIS TITLE SHALL
BE CONSTRUED TO PREVENT ANY LOCAL GOVERNMENT FROM:
A. ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES OF GENERAL APPLICA-
BILITY, EXCEPT THAT SUCH LOCAL LAWS OR ORDINANCES SHALL NOT REGULATE
MINING AND/OR RECLAMATION ACTIVITIES REGULATED BY STATE STATUTE, REGU-
LATION, OR PERMIT; OR
B. ENACTING OR ENFORCING LOCAL ZONING ORDINANCES OR LAWS WHICH DETER-
MINE PERMISSIBLE USES IN ZONING DISTRICTS. WHERE MINING IS DESIGNATED A
PERMISSIBLE USE IN A ZONING DISTRICT AND ALLOWED BY SPECIAL USE PERMIT,
CONDITIONS PLACED ON SUCH SPECIAL USE PERMITS SHALL BE LIMITED TO THE
FOLLOWING:
(I) INGRESS AND EGRESS TO PUBLIC THOROUGHFARES CONTROLLED BY THE LOCAL
GOVERNMENT;
(II) ROUTING OF MINERAL TRANSPORT VEHICLES ON ROADS CONTROLLED BY THE
LOCAL GOVERNMENT;
(III) REQUIREMENTS AND CONDITIONS AS SPECIFIED IN THE PERMIT ISSUED BY
THE DEPARTMENT UNDER THIS TITLE CONCERNING SETBACK FROM PROPERTY BOUNDA-
RIES AND PUBLIC THOROUGHFARE RIGHTS-OF-WAY, NATURAL OR MAN-MADE BARRIERS
TO RESTRICT ACCESS, IF REQUIRED, DUST CONTROL AND HOURS OF OPERATION,
WHEN SUCH REQUIREMENTS AND CONDITIONS ARE ESTABLISHED PURSUANT TO SUBDI-
VISION THREE OF SECTION 23-2711 OF THIS TITLE;
(IV) ENFORCEMENT OF RECLAMATION REQUIREMENTS CONTAINED IN MINED LAND
RECLAMATION PERMITS ISSUED BY THE STATE; OR
C. ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES REGULATING MINING OR
THE RECLAMATION OF MINES NOT REQUIRED TO BE PERMITTED BY THE STATE.
D. IN ADDITION TO THE AUTHORITY GRANTED TO LOCAL GOVERNMENTS PURSUANT
TO THIS SUBDIVISION, WITHIN COUNTIES WITH A POPULATION OF ONE MILLION OR
MORE WHICH DRAW THEIR PRIMARY SOURCE OF DRINKING WATER FOR A MAJORITY OF
COUNTY RESIDENTS FROM A DESIGNATED SOLE SOURCE AQUIFER, LOCAL GOVERN-
MENTS SHALL ALSO BE EMPOWERED TO REGULATE MINING AND/OR RECLAMATION
ACTIVITIES FOR THE PROTECTION OF WATER QUALITY AND THE PUBLIC HEALTH, AS
PERMITTED BY SUBDIVISION THREE OF THIS SECTION.
3. WITHIN COUNTIES WITH A POPULATION OF ONE MILLION OR MORE WHICH DRAW
THEIR PRIMARY SOURCE OF DRINKING WATER FOR A MAJORITY OF COUNTY RESI-
DENTS FROM A DESIGNATED SOLE SOURCE AQUIFER, LOCAL GOVERNMENTS SHALL
HAVE CONCURRENT AUTHORITY WITH THE DEPARTMENT TO REGULATE MINING BY
LOCAL LAW FOR THE PURPOSES OF THE PROTECTION OF WATER QUALITY AND PUBLIC
HEALTH. SUCH LOCAL LAWS MAY PROVIDE FOR BUT ARE NOT LIMITED TO:
A. THE REGULATION OR PROHIBITION OF MINING ON PROPERTIES WHERE IT IS
DETERMINED THAT MINING IS INCONSISTENT WITH WATER QUALITY PROTECTION AND
PUBLIC HEALTH; AND
B. THE MONITORING OF GROUNDWATER IMPACTS RESULTING FROM MINING OR THE
RECLAMATION OF MINES; AND
C. THE REGULATION OR PROHIBITION OF MINING WHERE THE STATE OR A LOCAL
GOVERNMENT HAS DOCUMENTED CONTAMINATION TO GROUNDWATER OR DRINKING WATER
ON THE SITE OR ATTRIBUTABLE TO THE SITE, WHICH EXCEEDS MAXIMUM CONTAM-
INANT LEVELS UNDER STATE OR FEDERAL DRINKING WATER OR GROUNDWATER STAND-
ARDS; AND
D. THE REGULATION OR PROHIBITION OF THE CO-LOCATION OF MINING WITH ANY
FACILITY FOR THE RECEIPT, PROCESSING, SALE, STORAGE, OR TRANSFER OF
WASTE OF ANY KIND. THE PROVISIONS OF THIS SUBDIVISION SHALL APPLY
S. 8026 3
REGARDLESS OF WHETHER A PERMIT OR REGISTRATION FOR SUCH A FACILITY IS
REQUIRED BY THIS CHAPTER. SUCH WASTE, SHALL INCLUDE, BUT NOT BE LIMITED
TO GARBAGE, MANURE, TREES, SEPTAGE, BRUSH, STUMPS, LEAVES, YARD CLIP-
PINGS, STREET SWEEPINGS, ASPHALT, CONCRETE, STONE, CRUSHED STONE, TOP
SOIL, DEBRIS, CONSTRUCTION AGGREGATES, LAND CLEARING DEBRIS, AND
CONSTRUCTION AND DEMOLITION DEBRIS; AND
E. THE TERMINATION OF MINING SITES WHICH ARE EXISTING NON-CONFORMING
USES UNDER LOCAL ZONING LAWS OR ORDINANCES WHERE SUCH TERMINATION IS
NECESSARY FOR THE PROTECTION OF WATER QUALITY AND THE PUBLIC HEALTH; AND
F. THE RECLAMATION OF SUCH MINING SITES; AND
G. ANY OTHER REGULATION NECESSARY FOR THE PURPOSES OF PROTECTION OF
WATER QUALITY AND THE PUBLIC HEALTH.
4. A. NO AGENCY OF THIS STATE SHALL PROCESS AND APPROVE AN APPLICATION
FOR A PERMIT TO MINE PURSUANT TO THIS TITLE WITHIN COUNTIES WITH A POPU-
LATION OF ONE MILLION OR MORE WHICH DRAW THEIR PRIMARY SOURCE OF DRINK-
ING WATER FOR A MAJORITY OF COUNTY RESIDENTS FROM A DESIGNATED SOLE
SOURCE AQUIFER, IF LOCAL ZONING LAWS OR ORDINANCES PROHIBIT MINING USES
WITHIN THE AREA PROPOSED TO BE MINED.
B. NO AGENCY OF THIS STATE SHALL PROCESS AND APPROVE AN APPLICATION
FOR A PERMIT TO MINE PURSUANT TO THIS TITLE, WITHIN COUNTIES WITH A
POPULATION OF ONE MILLION OR MORE WHICH DRAW THEIR PRIMARY SOURCE OF
DRINKING WATER FOR A MAJORITY OF COUNTY RESIDENTS FROM A DESIGNATED SOLE
SOURCE AQUIFER, IF:
(I) LOCAL LAWS ENACTED PURSUANT TO SUBDIVISION THREE OF THIS SECTION
PROHIBIT MINING OF THE PROPOSED MINING SITE; OR
(II) A LOCAL GOVERNMENT HAS DENIED A PERMIT FOR MINING ON A PROPOSED
MINING SITE PURSUANT TO A LOCAL LAW AUTHORIZED BY SUBDIVISION THREE OF
THIS SECTION.
C. NO AGENCY OF THE STATE SHALL APPROVE AN APPLICATION FOR MINING
WITHIN COUNTIES WITH A POPULATION OF ONE MILLION OR MORE WHICH DRAW
THEIR PRIMARY SOURCE OF DRINKING WATER FOR A MAJORITY OF COUNTY RESI-
DENTS FROM A DESIGNATED SOLE SOURCE AQUIFER UNTIL EACH LOCAL GOVERNMENT
WITH JURISDICTION OF MINING PURSUANT TO THIS SECTION HAS APPROVED SUCH
APPLICATION.
D. THIS SUBDIVISION SHALL APPLY TO ALL APPLICATIONS FOR MINING,
INCLUDING APPLICATIONS FOR NEW MINING, EXPANSION OF MINING ON EXISTING
MINING SITES, AND RENEWALS OF EXISTING PERMITS.
E. THE REQUIREMENTS OF THIS SECTION SHALL BE IN ADDITION TO THE
REQUIREMENTS OF SECTION 23-2711 OF THIS TITLE. TO THE EXTENT THAT THE
PROVISIONS OF THIS SECTION ARE INCONSISTENT WITH THE PROVISIONS OF
SUBDIVISION THREE OF SECTION 23-2711 OF THIS TITLE, THIS SUBDIVISION
SHALL SUPERSEDE AND GOVERN MINING APPLICATIONS WITHIN COUNTIES WITH A
POPULATION OF ONE MILLION OR MORE WHICH DRAW THEIR PRIMARY SOURCE OF
DRINKING WATER FOR A MAJORITY OF COUNTY RESIDENTS FROM A DESIGNATED SOLE
SOURCE AQUIFER.
§ 2. Subdivision 8 of section 23-2705 of the environmental conserva-
tion law, as amended by chapter 166 of the laws of 1991, is amended to
read as follows:
8. "Mining" means the extraction of overburden and minerals from the
earth; the preparation and processing of minerals, including any activ-
ities or processes or parts thereof for the extraction or removal of
minerals from their original 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
S. 8026 4
commercial, industrial or municipal use; and the disposition of overbur-
den, tailings and waste at the mine location. "Mining" shall not include
the excavation, removal and disposition of minerals from construction
projects, exclusive of the creation of water bodies, or excavations in
aid of agricultural activities, EXCEPT WITHIN COUNTIES WITH A POPULATION
OF ONE MILLION OR MORE WHICH DRAW THEIR PRIMARY SOURCE OF DRINKING WATER
FOR A MAJORITY OF COUNTY RESIDENTS FROM A DESIGNATED SOLE SOURCE
AQUIFER.
§ 3. Paragraph (b) of subdivision 3 of section 23-2711 of the environ-
mental conservation law, as added by chapter 166 of the laws of 1991, is
amended to read as follows:
(b) If the department finds that the determinations made by the local
government pursuant to paragraph (a) of this subdivision are reasonable
and necessary, the department shall incorporate these into the permit,
if one is issued. If the department does not agree that the determi-
nations are justifiable, then the department shall provide a written
statement to the local government and the applicant, as to the reason or
reasons why the whole or a part of any of the determinations was not
incorporated. THE PROVISIONS OF THIS PARAGRAPH SHALL NOT APPLY TO ANY
DETERMINATION MADE BY A LOCAL GOVERNMENT PURSUANT TO SUBDIVISIONS THREE
AND FOUR OF SECTION 23-2703 OF THIS TITLE. NO DETERMINATION, DECISION OR
LOCAL LAW ENACTED BY A LOCAL GOVERNMENT PURSUANT TO SUBDIVISIONS THREE
AND FOUR OF SECTION 23-2703 OF THIS TITLE SHALL BE REVIEWABLE BY THE
DEPARTMENT AND SHALL BE BINDING UPON THE DEPARTMENT.
§ 4. Section 23-2721 of the environmental conservation law, as amended
by chapter 477 of the laws of 1976 and as renumbered by chapter 166 of
the laws of 1991, is amended to read as follows:
§ 23-2721. Judicial review.
Any act, omission, determination or order of the department or ANY
LOCAL GOVERNMENT PURSUANT TO SECTION 23-2703 OF THIS TITLE OR of any
officer or employee thereof, pursuant to or within the scope of this
title, may be reviewed in accordance with article seventy-eight of the
civil practice law and rules.
§ 5. This act shall take effect immediately.