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Lead Agency Dispute: Board of Trustees of the Village of Macedon v. Town Board of the Town of Macedon

New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law

PROJECT: Proposal by Village Board of Trustees of the Village of Macedon to construct improvements to Macedon Wastewater Treatment Facility in the Village of Macedon, County of Wayne

DISPUTING AGENCIES: Board of Trustees of the Village of Macedon v. Town Board of the Town of Macedon

I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL], with implementing regulations at Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). The review is for proposed changes and improvements by the Village of Macedon (Village) to the Village of Macedon Wastewater Treatment Plant (Macedon WTP). This designation of the Village Board of Trustees of the Village of Macedon (Village Board) to serve as lead agency is based on my finding that it has the broadest governmental powers to investigate the impacts of the proposed wastewater treatment plant improvements and upgrades.

Action and Site

The project involves replacement and upgrade of process equipment at the Macedon WTP to improve plant operations, update compliance of process equipment and address safety concerns. Among the proposed improvements, the Village is considering the inclusion of a new technology in the plant that could potentially increase its efficiency.

Regulatory Setting

Based on information provided to this office, the following agencies were identified as having one or more discretionary decisions that could affect one or more components of the proposed action:

  • The Village is the owner and operator of the Macedon WTP and the sponsor of the proposed upgrades and improvements to the facility.
  • The Town of Macedon (Town) is a past participant in a municipal agreement dating to 1989 wherein the Town financed an upgrade and expansion of the Macedon WTP in exchange for a vested ownership interest therein. The Town has asserted jurisdiction through its previous contractual agreement with the Village, as a co-owner of the facility.1 The Town is also a user of the services provided by the wastewater treatment facility.
  • The New York State Department of Environmental Conservation (DEC), through its Region 8 office, may have jurisdiction under the State Pollution Discharge and Elimination System (SPDES) permit program, depending on final design plans.
  • The following agencies have also been identified as possibly providing funding to this project: Finger Lakes Regional Economic Development Council, New York State Energy Research and Development Authority (NYSERDA) through the Cleaner Greener Communities program; the New York State Environmental Facilities Corporation; and, the U.S. Department of Agriculture Rural Development program.

The Village Board and the Town Board of the Town of Macedon (Town Board) are the only agencies involved in this lead agency dispute.

Discussion

In resolving a lead agency dispute, under 6 NYCRR §617.6 (b) (5)(v), I am guided by three criteria listed in order of importance as follows:

  1. whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
  2. which agency has the broadest governmental powers to investigate the impacts of the proposed action; and
  3. which agency has the greatest capability to provide the most thorough environmental assessment of the proposed action.
A. First Criterion

The first criterion involves anticipated impacts of the action. The improvements proposed by the Village Board are deemed necessary to address age and condition of existing equipment at the Macedon WTP and all improvements will be done on the existing site of the plant. The replacement, reconstruction, maintenance and repair of equipment on the same site are fairly routine activities and not the type of actions that cause new impacts.

In its submissions, the Village did not specifically identify any environmental impacts from the upgrade and improvements. However, the Town indicated that impacts could result from on-premises storage of high BOD waste in sedimentation tanks, which will be trucked in from other facilities. Impacts resulting from the storage of waste (e.g. odor) would likely be local in nature. The trucking of high BOD waste may have more regional or statewide impacts.

The first criterion does not weigh in favor of either the Village Board or the Town. Neither disputing party is better positioned than the other to review and act on such impacts.

B. Second Criterion

The Village, as sponsor, designer, and the agency principally responsible for construction oversight of the proposed action, has the broadest governmental powers to conduct the environmental review, and, hence, greater ability to investigate the impacts if any, of the proposed action. The Village has direct authority over the site, construction improvements and upgrades, and administration of the Macedon WTP. As the sponsoring agency, the Village is in the best position to identify and ensure implementation of any measures necessary to avoid or minimize potential impacts from the plant upgrades and improvements as they may be revealed during the environmental review process.

The asserted jurisdictions of the Town (related to sewer usage and past financial involvement with the wastewater treatment facility), cannot be viewed as being broader or more extensive than the Village's authority over the changes proposed for the Macedon WTP.

C. Third Criterion

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. Both the Village Board and Town Board have the capability of engaging consultants to assist their staff in managing the environmental review process. Given that both agencies possess or could obtain capacity to administer the SEQR review of this project, this third criterion does not provide any additional basis for my decision.

Finding

Given the foregoing, I conclude that the Village Board should be lead agency for the SEQR review of the proposed upgrades and improvements to the Macedon WTP.

The decision that the Village Board shall serve as lead agency in no way limits the responsibilities of other involved agencies, including the Town Board. The Village must still seek and obtain all necessary approvals and permits from other agencies or authorities with jurisdiction over any aspect of the proposed project. In addition, the Town has raised concerns related to the need for more project-related detail and raised questions regarding the clarity and accuracy of several statements made by the Village in the Full Environmental Assessment Form. They warrant consideration by the Village Board in the conduct of its environmental review of the proposed action.

1 I accept the Town of Macedon's assertion of jurisdiction based on its past agreement for purposes of resolving this dispute on its merits.

Dated: 2/17/15

/s/ Joseph J. Martens, Commissioner
Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant
William Hammond, Supervisor, Town of Macedon
Hon. Marie Cramer, Mayor, Village of Macedon
Anthony J. Villani, P.C., Counsel to the Town of Macedon
Amanda Insalaco, Esq., Counsel for the Village of Macedon

Interested Agencies
Scott Sheeley, Regional Permit Administrator, Region 8, New York State Department of Environmental Conservation, (e-copy)
The Finger Lakes Regional Economic Development Council
Environmental Facilities Corporation
New York State Energy Research and Development Authority (NYSERDA)
New York State Department of Environmental Conservation, 625 Broadway, Albany
Lawrence H. Weintraub, Office of General Counsel, Central Office (e copy)
Robert L. Ewing, Division of Environmental Permits, Central Office (e copy)


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