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DEC v. NYCDEP v. NYC Department of City Planning v. NYCDOH

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: Designation of lead agency for the review of applications for the construction and/or operation of transfer stations in the five boroughs of New York City

DISPUTING AGENCIES:

  • Region 2 Office, New York State Department of Environmental Conservation.
  • Department of Environmental Protection, City of New York.
  • Department of City Planning, City of New York
  • Department of Sanitation, City of New York.
  • Department of Health, City of New York

This decision to designate the City of New York 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 City of New York has discretionary authority and that the impacts from the construction/ operation of transfer stations are primarily of local concern and within the land use jurisdiction of the City.

The subject of the dispute is the construction/operation of putrescible and non-putrescible solid waste transfer stations within the five boroughs of New York City (NYC) . The Region 2 office of the New York State Department of Environmental Conservation (DEC) originally raised a lead agency dispute regarding the environmental review of solid waste transfer stations (SWTFs) in Community District #1 on January 31, 1990. No action was taken at that time because NYC asked for additional time for the then new administration to review existing permitting and zoning requirements (see my letter to Commissioner Appleton of May 5, 1990). On February 8, 1991, Region 2 DEC requested that the lead agency dispute be revived and expanded to cover all SWTFs in New York City. In support of its position, Region 2 DEC has submitted a November 27, 1990 letter from Regional Director Carol Ash to Commissioners Appleton and Schaffer, and a copy of Local Law 40 with a cover memorandum and legislative report to the City Council.

In reply, NYC has submitted a May 30, 1991 letter from its Law Department asserting that I have no jurisdiction to decide this matter because the City is not an involved agency by virtue of its decisions being ministerial. In support of its position, NYC has submitted letters dated December 13, 1990, March 5, 1991 and March 26, 1991, several negative declarations on related matters and New York City agency assessments of the proposed Department of Sanitation (DOS) regulations to be adopted pursuant to Local Law 40. I also note that the proposed rules themselves were not submitted by New York City.

The first question that must be resolved is whether I have authority to consider the Region 2 request for resolution of the alleged lead agency dispute in light of NYC's claim that it is not an involved agency. This is not the first time I have had to consider issues of agency status in order to determine whether a lead agency dispute exists or how to resolve it.

In a dispute involving the Town of Batavia and Genesee County regarding the construction of a weather radar station by the U.S. Department of Commerce, staff determined that the Town of Batavia had no authority over the action due to the federal preemption of local land use approvals (see letter dated March 29, 1991). The existence of such a preemption was noted in the summary of the Federal Finding of No Significant Impact that was submitted to me as a part of the dispute resolution process. In another case, the proposed construction of a sanitary landfill in the Town of Farmersville, Cattaraugus County, resulted in a dispute between the Region 9 office of the New York State Department of Environmental Conservation and the Town of Farmersville. This dispute was dismissed when it was determined that the Town's prohibition against the dumping of waste material within its boundaries did not constitute a discretionary approval over the project (see letter dated November 15, 1990).

In resolving a lead agency dispute, my role is quasi-judicial. Just as a court would have the authority to review the record to determine whether a matter is properly before it or supports a party's position, I also have that same authority. Thus, if it appears reasonably certain on the face of the documents submitted that an agency has or lacks a discretionary jurisdiction to exercise, that information will be used in the resolution of a lead agency dispute. NYC has claimed that it will exercise only ministerial authority under the proposed zoning text amendment (unless a use variance or special permit is sought) and under the DOS regulations. However, I need not accept an unsupported assertion by an agency as to the character of its laws. If a law or regulation on its face allows for the exercise of discretion, I must consider that exercise of discretion subject to SEQR.

I also must review the matter in recognition of the strong legislative policy expressed by SEQR and note that exemptions from SEQR have been narrowly construed. See Golden v. MTA, 126 AD2d 128 (2d Dept. 1987). It is NYC's position that its DOS rules will contain objective, non-discretionary criteria. However, the fact that there are objective standards does not necessarily mean that the entire regulatory scheme is ministerial; in fact, the absence of standards itself may make an act ministerial. Karasz v. Wallace, 134 Misc. 2d 1052.

Since I do not have the text of the proposed rules before me, I must look at Local Law 40 and its supporting legislative memoranda and at the NYC agency analyses of the draft rules, especially the analysis of DOS..Local Law 40, at subdivision 16-130 (b), provides that DOS may establish by rule one or more classes of permits to regulate SWTFs. At subdivision 16-131 (a), it provides that the Commissioner of DOS shall have power to adopt rules: controlling and providing for supervision over the conduct, operation and use of SWTFs; requiring information from applicants necessary to DOS; and requiring permittees to maintain records determined to be necessary. Subdivision 16-131 (b) provides that the Commissioner shall adopt rules "establishing... requirements appropriate for protection of public health and the environment," (emphasis added) including: limiting hours of operation; prescribing odor control measures; prescribing ventilation systems; and requiring certain activities be conducted in a fully enclosed structure. The Commissioner is specifically authorized to grant an exemption (emphasis added) if "the commissioner determines that such activities would not adversely affect a residential area." Section 16-131.1 provides that "the commissioner may refuse to issue a permit," (emphasis added) refuse to renew and may suspend or revoke a permit based on the compliance/violation history and related bad acts of an applicant or permittee. These are clearly areas where discretion is authorized to be exercised.

The cover memorandum for the proposed local law from Deputy Mayor Barbara J. Fife states that "the bill grants broad authority to the Department to issue regulations [and] recognizes the expertise of the Department of Sanitation in the areas of transfer station operation and enforcement." The report of the City Council's Legal Division provides a section-by-section analysis of the law. That report recognizes the authority of the Commissioner to promulgate rules and describes section 16-131.1 as establishing "several conditions upon which the commissioner may (emphasis added) refuse to issue" permits.

The May 22, 1991 letter from NYC Department of Health to NYC Department of Environmental Protection analyzing the draft rules includes the following comments: the ventilation and equipment sections incorporate minimum (emphasis added) requirements; section 6 (a) requires transfer stations "to be operated in a safe and sanitary manner so as to avoid hazards and nuisances"; section 6 (e) requires transfer stations to be free of pests. These standards clearly contemplate the exercise of discretion in implementation.

The Department of Sanitation memorandum states that the "proposed rules do not represent a significant departure from the requirements contained in...existing local and state laws and regulations." In a narrative section-by-section analysis, the proposed regulations are compared with existing NYC regulations and with 6 NYCRR Part 360, DEC's statewide regulations regulating solid waste management facilities, including transfer stations (Subpart 360-11). Included in the DOS requirements are submission by applicants of a written plan for the control of noise, vibration and odors and other requirements regarding enclosures, use of impervious surfaces, and ventilation, citing to 6 NYCRR Subpart 360-11 as a comparable regulation. Rules relating to noise are said to "mirror those of the DEC." DOS then provides a chart comparing existing laws and regulations with its proposed rules. The majority of those sections relating to sites and plans, permitting, design requirements and operation are shown as being the same as or very similar to DEC's regulations. This Department has interpreted its own Part 360 regulations, including Subpart 360-11, as being discretionary..Taken as a whole and on the face of the record provided relating to Local Law 40 and the proposed DOS rules, I must conclude that NYC has discretionary authority to exercise. The City Council intended that DOS use its expertise in selecting appropriate criteria for permitting. The legislation on its face uses discretionary language and specifically allows for the exercise of discretion in selecting criteria and standards, granting exemptions and considering the compliance history of applicants. The description and analyses of the proposed rules carry over that discretion to the rules and compare the rules with the discretionary regulations of DEC.

Once the status of the agencies with respect to jurisdiction has been established, I must use the criteria contained in paragraph 6 NYCRR 617.6(5)(5) to designate lead agency. These criteria 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.

Transfer stations serve as an intermediate step in the efficient collection and disposal of solid waste. As noted in a report prepared by the Legal Division of the City Council dated June 27, 1990, transfer stations are a vital component of the City's management of its solid waste. Although transfer stations are necessary, the nature of the material being handled and the type of activity that is normal to the operation generate substantial concern. The primary impacts from the construction/operation of putrescible and non-putrescible solid waste transfer stations which include traffic, community character, noise, odors, and vibration are local in nature. In addition, if several facilities are concentrated in a community as is the case in New York City, there is a potential for cumulative impacts especially in the areas of traffic, noise and community character. The authority to mitigate or control these potential cumulative impacts fall within the land use jurisdiction of New York City.

The second criteria relates to the breadth of jurisdiction. As noted above, Local Law 40 will consolidate the authority to regulate solid waste transfer stations with DOS. Local Law 40 will also enhance DOS's ability to take enforcement actions against transfer stations operating without a permit, which pose a threat to the public health or safety, or which create a public nuisance (see July 3, 1990 memorandum from B. Fife).

The jurisdiction of DEC is exercised through the requirements contained in 6 NYCRR Subpart 360.11. This subpart regulates the design and operation of transfer stations. The authority contained in Local Law 40 and the regulatory powers of the DEC under Part 360 are arguably comparable.

The third criteria relates to the capacity of an agency to provide a thorough environmental assessment of the action. Both agencies possess the necessary staff to assess the operational impacts from transfer stations. However, New York City also has the staff expertise to assess the land use compatibility issues; DEC does not.

I recognize that the large number of facilities, staff shortages due to state and city fiscal problems and the overwhelming scope of the City's solid waste problems will strain the review capacity of New York City. However, rather than conducting individual reviews the City may choose to prepare a generic environmental impact statement (EIS). A generic EIS can be a more efficient way to assess the impacts of multiple projects that will occur in the same geographic area and have similar impacts. A generic EIS could be prepared on a city wide or area wide basis.

If this approach is chosen, it should be done in cooperation with the DEC and completed expeditiously so as not to exacerbate an already difficult situation that has resulted in the operation of unpermitted facilities.

This decision does not in any manner seek to diminish or delay the efforts of New York City to consolidate its regulatory authority regarding transfer stations. Recent efforts such as the zoning text amendment to remove/reduce siting issues, the proposed Department of Sanitation regulations for consolidating permit authority in one agency, strengthening the financial security requirements and considering the compliance history of applicants are positive steps in the management of solid waste facilities in New York City.

/s/
Thomas C. Jorling Commissioner
Dated: June 25, 1991
Albany, New York

Distribution of Copies:

  • Albert Appleton, Commissioner, NYC Dept. of Env. Protection
  • Richard Schaffer, Director, NYC Dept. of Planning
  • Carol Ash, Director, Region 2 Office, NYS Dept. of Env. Cons.
  • Steven Pollan, Commissioner, NYC Dept. of Sanitation
  • Woodrow Myers, Jr., Commissioner, NYC Dept. of Health
  • Antonia Levine, Chief Env. Law Div., NYC Dept. of Law

New York State Department of Environmental Conservation:

  • Commissioner Jorling
  • B. Cross
  • L. Marsh
  • M. Gerstman
  • G. Kamaras
  • R. Kordish
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