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East Greenbush v. City of Rensselaer v. DEC

Lead Agency Dispute

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

PROJECT: 4 C's Development Corporation: Designation of lead agency for the review of a proposed Construction and Demolition Landfill in the Town of East Greenbush in Rensselaer County

INVOLVED AGENCIES:

  • Town of East Greenbush
    City of Rensselaer
    Region 4 Office, New York State Department of Environmental Conservation

This decision to designate the Department of Environmental Conservation (DEC) Region 4 Office as lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617. I find that the Department of Environmental Conservation has the broadest governmental powers for the investigation of the impacts of the proposed action, as well as the greater expertise required for a thorough environmental review.

The proposed project is by 4 C's Development Corporation to increase the operating hours of its permitted landfill known as the Cristo's C&D Landfill and to accept disposal wastes from sources other than its own demolition jobs. The applicant requests a modification of the existing permits to reflect these changes and a renewal of the permit which expired on December 8, 1993.

In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.

In consideration of the first criterion, the Town contends that the impacts are primarily local because the landfill will be located wholly within the Town. The Town further states that many potential issues have been brought to the attention of the Town by citizens who live in residential areas adjacent to the landfill. Such issues include: the dumping of inappropriate materials, excessive noise, inadequate cover, access to the site by children, operation beyond permitted times, noxious odors, and possible stream pollution. The DEC contends that while the facility itself may be located within the Town of East Greenbush, it is located adjacent to the boundary of the City of Rensselaer, and the potential impacts identified by the Town of East Greenbush would, if realized, clearly transcend the Town/City boundary, thereby resulting in impacts that would be more correctly construed as "regional" in nature. The sole access to the site is through the City of Rensselaer via Partition Street. Other impacts from solid waste management and traffic may be felt well outside the Town of East Greenbush and the City of Rensselaer because the modification proposes to accept wastes generated by others in addition to the wastes currently generated by the project sponsor.

Therefore, I conclude that the anticipated impacts are primarily regional.

The next criterion to consider in this dispute is the breadth of jurisdiction. This criterion also favors DEC as lead agency. The Town's jurisdiction appears to be limited to the issuance or denial of a cut and fill permit as established by Local Law No. 1 of 1987. The purpose of that ordinance is "to regulate and control the grading and filling to land, the removal of topsoil and underlying material, and the removal of vegetation within the Town of East Greenbush and to prescribe regulation for said control." That purpose can be achieved regardless of whether or not the Town is lead agency for SEQR review through its review and imposition of conditions for the permits that may be issued by the Town. The Town has also indicated that the Town Zoning Ordinance precludes operation of a landfill within the "R/A" Zone. However, it acknowledges that the current facility has been in operation since 1988 and may, therefore, be construed as a pre-existing, non-conforming use.

The City of Rensselaer will have discretionary approval with respect to storm water and leachate discharge if the project proponents elect to discharge effluent through the city sewer system. The City has not indicated a preference in the selection of a lead agency, only that it be considered an involved agency and be informed of any changes or decisions regarding this application.

The Department has comprehensive authority under 6 NYCRR Part 360 (solid waste management regulations) to review all issues relating to solid waste disposal, some of which may affect areas beyond the borders of the Town. Therefore, DEC has the broadest powers to investigate any and all potential impacts.

The third criterion also favors DEC as lead agency. DEC staff has considerable experience in the review of not only this proposal as previously permitted but other solid waste projects throughout the region. Department staff reviewed the environmental impacts related to the operation of this landfill in 1988.

I conclude, based on the facts presented, that DEC Region 4 should be lead agency for review under SEQR for the 4 C's C&D Landfill application because of its broad jurisdiction, the expertise of staff in reviewing construction and demolition landfills, and because the potential impacts are regional in nature.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the proposed action and to assist the DEC in the environmental review process. The issues raised by the Town of East Greenbush and the City of Rensselaer must be considered by the DEC in making its determination of significance.

/s/
Langdon Marsh, Acting Commissioner
Dated: May 13, 1994
Albany, New York

Distribution of Copies:

  • John F. Ryan, Mayor, City of Rensselaer
    Michael Van Voris, Supervisor, Town of East Greenbush
    A. Cristo, President, 4 C's Development Corporation

New York State Department of Environmental Conservation:

  • Acting Commissioner Marsh
    A. Adamczyk, Director, Region 4
    M. Gerstman
    G. Kamaras
    J. Stallmer
    W. Clarke
    R. Guthrie
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