January 26, 2022

Claudia K. Braymer
Braymer Law PLLC
PO Box 2369
Glens Falls, New York 12801
Via email: claudia@braymerlaw.com

RE: 850 Route 28, LLC

850 NY-28, Kingston, New York 12401

Dear Claudia Braymer:

I write in response to your December 23, 2021 letter to Kelly Turturro, Region 3
Regional Director of the New York State Department of Environmental Conservation
(the Department). In your letter, you outlined concerns of your clients, Catskill
Mountainkeeper and Woodstock Land Conservancy, about the use of property at 850
Route 28 in the Town of Kingston (the Site).

On October 4, 2021, the Department responded to an inquiry from Thomas Auringer of

850 Route 28, LLC regarding the Department’s jurisdiction for a proposal to process
approximately 3,500 cubic yards of loose shot rock and retain the material at the Site
(see enclosed letter).

The Department did not “authorize” on-site crushing at the Site. Rather, based upon the
information provided in Thomas Auringer’s request and the Department’s jurisdiction
under the Mined Land Reclamation Law (Title 27, Article 23 of the Environmental
Conservation Law), Department staff determined that a mining permit would not be
required for the proposal to process loose shot rock and retain the material at the Site.
DEC’s communication with Thomas Auringer also advised that if the conditions stated in
the inquiry changed, the Department would need to reevaluate the need for a mining
permit. The Department has not received any information that would change the
Department’s October 4, 2021 determination.

A proposal to construct a manufacturing facility for steel and precast concrete structures
at this Site is currently before the Town of Kingston Planning Board. The Town is also
the lead agency under the State Environmental Quality Review Act (SEQRA) review.
Accordingly, it would be more appropriate for the Town to determine whether current
activities at the Site are taking place impermissibly for SEQRA purposes.
In addition, Department staff inspected the Site and observed violations of the
Environmental Conservation Law. On November 5, 2021, the Department issued a
Notice of Violation (enclosed) for violations of the State Pollutant Discharge Elimination
System (SPDES) General Permit for Stormwater Discharges from Construction Activity
and Article 17 of the Environmental Conservation Law. The Department also directed
850 Route 28, LLC to immediately cease all construction activities at the Site. On
November 9, 2021, the Department issued a second Notice of Violation (enclosed) for
violations of Article 15 of the Environmental Conservation Law. The Department will
determine appropriate next steps to address these violations.

The Department will continue to monitor the Site and evaluate compliance with the
Environmental Conservation Law and the Department’s regulations. Thank you for
bringing your concerns to the Department’s attention.

Sincerely,

Ashley Johnson
Regional Attorney

Enclosures

ecc: Kelly R. Turturro, Regional Director, NYSDEC

John W. Petronella, Regional Permit Administrator, NYSDEC
Town of Kingston Planning Board

2
October 4, 2021

850 Route 28, LLC

c/o Thomas Auringer
180 Meister Blvd
Freeport, NY 11520

Re: 850 Route 28 Site

Town of Kingston, Ulster County
Contractors Yard activities

Dear Tom Auringer:

The New York State Department of Environmental Conservation (DEC) has reviewed your
August 10, 2021 email regarding the subject site. According to the information provided
you have proposed processing approximately 3,500 cubic yards of loose shot rock currently
located on the property in aid of expanding an existing contractor’s yard. The material
would be used for leveling to accommodate safe storage area working conditions. It is
estimated that it would take approximately three to four weeks to conduct the activities and
that all materials would remain on site.

MINED LAND RECLAMATION

A facility with onsite crushing, local approval, and no mineral or overburden entering or
leaving the site does not require a permit pursuant to the Mined Land Reclamation Law. If
the conditions stated in your inquiry change, we would need to reevaluate the need for this
permit.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQR)

The Department is aware that there is a current proposal associated with this site that has
recently received a SEQR Positive Declaration requiring the preparation of a Draft
Environmental Impact Statement (DEIS). Pursuant to SEQR regulations, no agency
involved in an action may undertake, fund or approve the action until it has complied with
the provisions of SEQR. In addition, a project sponsor may not commence any physical
alteration related to an action until the provisions of SEQR have been compiled with. The
only exception to this is provided under section 617.5(c)(24), (27), and (34) of this Part.

-OVER PLEASE-
Re: 850 Route 28 Site
Town of Kingston, Ulster County
Contractors Yard activities

However, it is the Department’s understanding from the information provided that the site is
currently approved for use as a contractor's yard under the existing zoning, and the
proposed activity has been reviewed and approved by the Town of Kingston Code
Enforcement Officer (copied).

While it appears that this current proposed activity is not directly related to the action
subject to the positive declaration and DEIS, the Town of Kingston Planning Board as Lead
Agency would be the most appropriate to make this determination.

By copy of this correspondence, I am alerting them of this matter.

If you have any comments or questions regarding the above matters, please do not
hesitate to contact me at 845-256-3041 or via e-mail at john.petronella@dec.ny.gov.

Sincerely,

John W. Petronella
Regional Permit Administrator

Ecc: Town of Kingston Planning Board

Bob Cologero, Town of Kingston Building Inspector
H. Duda, R3 Mineral Resources

Page 2 of 2
Certified Mail Return Receipt Requested: 7016 0910 0001 4484 9303
November 5, 2021
Thomas Auringer
850 Route 28, LLC
850 Route 28
Kingston, NY 12401
NOTICE OF VIOLATION – CEASE AND DESIST DIRECTIVE
Re: 850 Route 28
Town of Kingston, Ulster County
Construction Stormwater Inspection
SPDES: Unpermitted
Dear Thomas Auringer,
On Friday, October 29, 2021 an inspection of the above referenced site was performed
in response to a complaint received by this Department.
At the time of the inspection, over one (1) acre of soil had been disturbed on the site.
Projects over one acre require coverage under the SPDES General Permit for
Stormwater Discharges from Construction Activity (GP-0-20-001). According to our
records, this site has not gained coverage under that permit. Failure to obtain coverage
under the SPDES GP-0-20-001 is a violation of Article 17 of the New York State
Environmental Conservation Law (ECL).
During the inspection signs of a turbid discharge were noted. Sediment was deposited
upon vegetation in an apparent flow path to a cut in a berm to Pond D. The water
quality in ponds B, C, D, E, and F were indicative of pollution from discharges from
stormwater runoff related to construction activities. Additionally, oil was visible on the
surface of Pond B. This is a violation of Article 17 of ECL.
Additionally, a lack of erosion and sediment controls was noted at the site. This has led
to a violation of water quality standards. Proper erosion and sediment controls must be
installed at the site immediately to prevent any future violations and contraventions of
New York State Water Quality Standards.
Please be advised that violations of the ECL are subject to penalties of up to $37,500 per
day per violation. These violations will be referred to our Office of General Council for
appropriate enforcement action.
This Department directs you to immediately Cease and Desist all construction
activity at the site, exclusive of that work necessary to correct erosion and
sediment control measures and prevent the contravention of the Water Quality
Standards, until this Department notifies you in writing that the Cease and Desist
directive has been lifted. This also excludes any remediation necessary due to
improper erosion and sediment controls. Failure to comply with this Cease and
Desist directive will result in additional enforcement action by this Department.
A Notice of Intent (NOI) to gain coverage under the GP-0-20-001 must be submitted for
the project. The completed NOI must be submitted to the address at the top of the form
and a copy sent to this Office. The NOI can be obtained at:
https://www.dec.ny.gov/chemical/43133.html.
If you have any questions regarding this inspection, please contact me at (845) 255-
3760 or by email at douglas.upright@dec.ny.gov.

Best Regards,

Douglas J. Upright, P.E.

Assistant Engineer, Division of Water
Attachments

ec: Natalie Browne, NYSDEC

Manju Cherian, P.E., NYSDEC
Halina Duda, P.G., NYSDEC
Brian Drumm, NYSDEC
Town of Kingston
 NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
DIVISION OF WATER

Construction Stormwater Inspection Report for SPDES General Permit GP-0-20-001

Date: 10/29/21
850 Route 28, Kingston NY 12401
Project Name and Location: ________________________________________________________________
Weather: Overcast
Permit # (if any): NYR1
Town of Kingston
Municipality: ________________________________ Ulster
County: ____________________________________
Entry Time: 11:00amExit Time: 1:10pm

Inspection Type: □ NOT

Name of SPDES Permittee: ___________________________________________ Contacted: Yes □ No □
✔ Complaint
□ Compliance □ Referral □

Dominic Cordisco of Drake Loeb PLLC and Tim Davenport

On-site Representative(s) and Company(s): _____________________________________________________________________________________

Phone Number(s):__________________________________________________________________________________________________________

General Permit Requirements Inspected: ☐

✔Y ☐ N

Yes No N/A Citation

1. ☐ ✔
☐ ☐ Does the project have permit coverage (if required)? I.E. & II. B.1
2. ☐ ☐ ✔
☐ Is a copy of the General Permit available on site? II.C.2.
3. ☐ ☐ ✔
☐ Is a copy of the MS4 SWPPP Acceptance Form available on site? II.C.2.
4. ☐ ☐ ✔
☐ Is a current copy of the signed SWPPP retained at the construction site? II.C.2.
5. ☐ ☐ ✔
☐ Is a copy of the signed NOI & Acknowledgment Letter retained at the construction site? II.C.2.
6. ☐ ✔
☐ ☐ Was written authorization issued for any disturbance greater than 5 acres? II.C.3.

SWPPP General Requirements Inspected: ☐ Y ☐

✔N

Yes No N/A Citation

7. ☐ ☐ ☐ Is the SWPPP current (accurate Permittee information, reflect current project)? II.E. & III.A.4
8. ☐ ☐ ☐ SWPPP identifies potential sources of pollutants in runoff III.A.2
9. ☐ ☐ ☐ SWPPP identifies Trained Contractor. III.A.6.
10. ☐ ☐ ☐ Contractor/Subcontractor certification statements have been signed. III.A.6.
11. ☐ ☐ ☐ SWPPP is signed by responsible corporate officer, general partner, proprietor,
principal executive officer, ranking elected official, or duly authorized representative. VII.H.2.

Recordkeeping Inspected: ☐ Y ☐
✔N

Yes No N/A Citation

12. ☐ ☐ ☐ Does Trained Contractor have current certification card? VII.O.
13. ☐ ☐ ☐ Are self-inspections performed at permit-required frequency? (check the box below)
□ Daily during periods of soil disturbance by Trained Contractor IV.B.1.
□ Weekly during soil disturbance by Owner/Operator for excepted projects IV.C.1.
□ Weekly for soil disturbances <= 5 acres by Qualified Inspector IV.C.2.a.
□ Twice weekly for soil disturbances >5acres or if water segment listed in App. C or E IV.C.2.b.&e.
□ Monthly during periods of temporary stabilization by Qualified Inspector IV.C.2.c
14. ☐ ☐ ☐ Do the qualified inspector’s reports include the minimum reporting requirements? IV.C.4.
15. ☐ ☐ ☐ Are the qualified inspector’s reports signed and retained onsite? IV.C.6.
16. ☐ ☐ ☐ Do the inspection reports identify deficiencies that are recurring &/or corrective
measures that have not been implemented, & include date-stamped color photos IV.C.4.
Visual Observations Inspected: ☐
✔Y ☐ N

Yes No N/A Citation

17. ☐ ☐
✔ ☐ Are all erosion and sediment control measures installed properly? IV.C.4.g.
18. ☐ ☐
✔ ☐ Are all erosion and sediment control measures being maintained properly? IV.C.4.f.
19. ☐ ☐ ☐
✔ Have stabilization measures been implemented in inactive areas per Permit? I.B.1.b.
20. ☐ ☐ ☐
✔ Are post-construction SMPs constructed/installed correctly? IV.C.4.i.
21. ☐ ☐ ☐
✔ Has final site stabilization been achieved and temporary E&SC measures removed
prior to NOT submittal? V.A.2.
22. ☐ ☐
✔ ☐ Was there a discharge from the site on the day of inspection? I.B.1.e. & f.
23. ☐
✔ ☐ ☐ Is there evidence that a discharge caused or contributed to a violation of water
quality standards? ECL 17-0501, &
6 NYCRR 703.2, &
GP-0-20-001: I.B.
Water Quality Observations
Describe the discharge(s): location, source(s), impact on receiving water(s), etc.
Sediment deposited on vegetation near cut in Pond D berm indicated flow level of turbid discharge. Ponds B, C, D, E and F observed
to be turbid during inspection. Water level was such that ponds C through F appeared to be one water body. Water in all ponds
turbid. Oil slick noted on south end of Pond B.

Describe the quality of the receiving water(s) both upstream and downstream of the discharge
Pickerel Pond is upstream water body, excellent water quality. Outlet of Pickerel Pond appears to be blocked, hydraulically
disconnecting it from pond B. No discharge from ponds observed.

Describe any other water quality standards or permit violations

Construction activity without coverage under the SPDES general permit or an individual SPDES permit in excess of 1 acre of
disturbance. Only erosion control measures present on site was a single row of silt fence which had collapsed.

Additional Comments
Observed construction activity was in excess of 5 acres.

☐
✔ Photographs attached

Overall Inspection Rating: ❑ Satisfactory ❑ Marginal ❑

✔ Unsatisfactory

Name/Agency of Lead Inspector: Douglas Upright, P.E., NYSDEC Signature of Lead Inspector:

Names/Agencies of Other Inspectors: Halina Duda, P.G., NYSDEC

Revised 10/14/20 – Region 8

 NYSDEC Inspection Photo Log
850 Route 28
Town of Kingston, Ulster County
SPDES Permit ID: Unpermitted
Inspection Date: 10/29/2021

Photo 1: Turbidity in Pond C

Photo 2: Turbidity and Oil in Pond B. Recently filled area adjacent to Pond B.
 Photo 3: Turbidity in Pond D and E.

Photo 4: Cut in berm to Pond D with signs of turbid discharge.

Photo 5: Mine floor from southern end. Previously forested area in center cleared.

Photo 6: Disturbed area on South side of entrance to Mine floor.

Photo 7: Disturbance near mine floor entrance from south of entrance.

Photo 8: Disturbance south of mine floor entrance.

Photo 9: Fill Placed in Pond B and on bank of Pickerel Pond.

Photo 10: Fill placed on bank of Pond B.

Photo 11: Disturbance along eastern side of pickerel pond.

Photo 12: Material Stockpiles with no erosion controls.

Photo 13: Failed Silt fence and northern end of site disturbance.

Photo 14: Large fill section from western bank of Pond B.

Photo 15: Fill Section west of building and trailer.

Photo 16: Fill Placed on bank of Pickerel Pond.