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Town of Bethlehem v. DEC

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

PROJECT: Application by Spurlock Adhesives, Inc. to construct and operate a Formaldehyde, Urea Formaldehyde and Formaldehyde Aminoplast manufacturing facility on the site of the former Texaco Petroleum Terminal on a 55.7 acre parcel of land on Route 144 in the Town of Bethlehem, Albany County

DISPUTING AGENCIES: Town of Bethlehem Town Board and Region 4 Office, New York State Department of Environmental Conservation (DEC)

This decision to designate the Region 4 Office of DEC as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and its implementing regulations at 6 NYCRR Part 617. The Town Board of the Town of Bethlehem and the DEC Region 4 Office have both asserted their intention to act as lead agency for this proposed Formaldehyde manufacturing facility.

On October 21, 1996, the Department of Environmental Conservation sent letters to the Town Board of the Town of Bethlehem, the Town of Bethlehem Industrial Development Agency (IDA), the New York State Department of Transportation, the Empire State Development Corporation and the Albany County Department of Health. All of the agencies, with the exception of the Town of Bethlehem Town Board, indicated their preference for the DEC Region 4 Office taking on the role of lead agency. The Town Board indicated its preference for the Town of Bethlehem Industrial Development Agency serving as lead agency. Failing the IDA's acceptance, the Town Board expressed its desire to serve as lead agency. On October 29, 1996, the Town of Bethlehem IDA wrote to DEC indicating its preference for DEC to serve as lead agency. The Town Board then asserted, in its November 14, 1996 letter, its desire to serve as lead agency.

Conclusion

Based on the facts as they have been presented to me, and as more fully detailed below, in accordance with 6 NYCRR Part 617.6(b)(5)(v), I have concluded that the Region 4 Office of DEC should serve as lead agency. The anticipated impacts of the proposed manufacturing project, being both local and regional in potential significance, favors the designation of the state-level agency as lead. The question of breadth of jurisdiction does not clearly favor either agency, and both agencies possess the capability to undertake the requisite environmental review.

Project Description

The proposed project is the application of Spurlock Adhesives, Inc. to locate a new Formaldehyde, Urea Formaldehyde and Formaldehyde Aminoplast manufacturing facility on the site of the former Texaco Petroleum Terminal Facility located on a 55.7 acre site along Route 144 in the Town of Bethlehem in Albany County.

Background Information and Environmental Concerns Identified

Both DEC and the Town of Bethlehem have identified a list of environmental concerns related to the proposed manufacturing facility, including:

• air quality issues; and
• water quality issues, such as:
  • -- storm water discharges,
    -- process water discharges
    -- potential contamination of drinking water source, and
    -- potential chemical spills.

The Town also identified Community Services, such as fire, police and emergency services, as issues of concern. The Town of Bethlehem also cited the project's potential to affect land values as an environmental impact. The issue of land values is an important issue but is not an environmental impact and, therefore, not appropriate for consideration under SEQR.

Jurisdictions

The Town of Bethlehem Town Board asserts jurisdiction in the form of entering into a contractual agreement to accept wastewater from the applicant, which would be an out-of-sewer-district user. The Town also asserts that the Town Building Inspector must evaluate the application in regard to flood damage prevention as a precursor of issuing a building permit and that this function is discretionary pursuant to the Town's Code (#69-12).

The DEC asserts jurisdiction under: 1) Air Pollution Control permit (Article 19 of the ECL, 6 NYCRR Parts 200, 202, 229 and 236); 2) State Pollution Discharge Elimination System permit (Article 17, Titles 7 & 8 of the ECL, 6 NYCRR Parts 750-757); 3) Petroleum Cleanup and Removal Agreement (Navigation Law Section 191 and 6 NYCRR Part 611); and 4) Chemical Bulk Storage (Articles 3, 17, 37 & 40 of the ECL, 6 NYCRR Parts 596-599).

Dispute Resolution Criteria

Lead agency disputes must be resolved in accordance with the three criteria listed in order of importance in paragraph 6 NYCRR Part 617. 6 (b) (5) (v) :

  • (1) Whether the anticipated impacts or the action being considered are primarily of statewide, regional or local significance;
    (2) Which agency has the broadest governmental powers for investigation of potential impact(s) of the proposed action;
    (3) Which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

In regard to the first criterion, this project could impact environmental resources beyond the boundaries of the Town of Bethlehem; therefore, the potential environmental impacts are regional as well as local in nature. For example, potential hazardous air pollutants could impact locally but could also disperse with the prevailing winds, impacting the Hudson River and municipalities to the east and north of the facility. Similarly, discharges of stormwater, process water or chemicals could impact locally but could also enter the Hudson River and affect other municipalities. Based on the regional significance of potential impacts, the Region 4 office of DEC, with its statewide authority, is favored for the role of lead agency.

The second criterion is the breadth of jurisdiction. The Town of Bethlehem asserts that it must negotiate and sign a contract with the applicant, as well as evaluate the potential effects from the proposal on the floodway of the Hudson River. The Region 4 Office of DEC has jurisdiction pursuant to an Air Pollution Control permit and must evaluate and sign a voluntary clean-up agreement for remediation of a "Brownfield" contaminated site. DEC also has two other approvals to issue: a registration of a chemical bulk storage facility and a storm water SPDES permit. Neither agency is strongly favored with respect to breadth of jurisdiction.

The last criterion is which agency has the greatest capability for providing the most thorough environmental assessment. DEC has professional staff capable of evaluating the environmental impacts of the proposed project, but the Town has the ability to request and acquire any necessary expertise. Neither agency has a greater capability to undertake the requisite environmental review.

I conclude, based on the facts presented and the criteria contained in 6 NYCRR Part 617.6(b)(5)(v) as discussed above, that the Region 4 Office of DEC should be lead agency for the SEQR review of the proposed Spurlock Adhesives, Inc. manufacturing facility.

This decision in no way alters the jurisdiction of the Town of Bethlehem. The applicant must apply for and obtain all of the necessary Town approvals prior to commencing the action. I encourage the Town of Bethlehem to identify its environmental concerns to the Region 4 Office of DEC so its concerns will be reflected within the Environmental Impact Statement that the applicant has already committed to prepare for the proposed project.

/s/
Frank Dunstan, Acting Deputy Commissioner
Dated: 1/6/97
Albany, New York

Distribution of Copies:

  • Sheila Fuller, Town Supervisor
    NYSDOT Region 1
    Freeman Putney (Town IDA)
    Gloria Kavanah (Empire State Development)
    Stephen Lukowski (Albany County Department of Health)
    Spurlock Adhesives, Inc.
    Jeffery Baker, Esq

New York State Department of Environmental Conservation:

  • John P. Cahill, Acting Commissioner
    Sandra Garlick
    William Clarke
    Joseph Dlugolenski
    Lenore Kuwik

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