Town of Coeymans v. City of Albany 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: ANSWERS: Designation of lead agency for the review of a proposed Solid Waste Management Facility in the Town of Coeymans, Albany County
- Town of Coeymans;
City of Albany;
Region 4 Office of the New York State
Department of Environmental Conservation;
Each of the Municipalities in the ANSWERS Planning Unit
This decision to designate the Region 4 office of the Department of Environmental Conservation (DEC) 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 construction and operation of a regional landfill will impact all of the municipalities in the solid waste management planning unit and the Region 4 office of DEC has the broadest governmental powers for the investigation of the impacts of the proposed action.
The proposed project is the application of ANSWERS (Albany) for the construction of a solid waste management facility in the Town of Coeymans, Albany County, to accept mixed solid wastes from the ANSWERS Planning Unit which includes Albany County (except the Town of Colonie) and the City of Rensselaer. The site will comprise 30 to 40 acres within a 363-acre parcel adjacent to the New York State Thruway.
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.
Nature of Impacts
The proposed landfill will directly impact 40 acres of land consisting of 32 acres abandoned farm fields, surrounded by 8 acres of successional forest on the periphery. The Region 4 office identifies the primary impacts likely to result from construction/operation of the project to be: noise, fugitive dust, surface runoff, impacts to historical and archeological resources, filling of approximately one acre of wetland, and construction-related traffic and traffic from operating .(anticipated to be 62 trucks per day), and leachate which must be controlled to protect ground and surface waters. Coeymans Creek [Class Standard C(ts)] runs along the western edge of the larger 363-acre parcel, approximately 1,000 feet at its closest to the proposed landfill footprint.
The Town identified a similar list of anticipated impacts and additional potential impacts. The additional concerns identified by the Town include impacts to: land, air, plants and animals, aesthetic resources, open space, recreation, transportation, energy, odor, public health, and growth and character of the surrounding community. The Town also believes other impacts may be identified as details of the project are revealed.
The proposed facility will be a key part of the ANSWERS Planning Unit's response to the problem of solid waste management. The decisions made in the process of developing the landfill in Albany County have the potential to impact each municipality in the Planning Unit. I acknowledge that the municipality chosen as the location of the landfill will experience site- specific impacts. However, the impacts related to the landfill use will affect all communities and citizens in the larger planning unit area. Therefore, the regional nature of the solid wasteshed here outweighs the local nature of the impacts.
Powers of Investigation
According to the Town, the proposed site is within an area zoned "industrial" and a landfill is not a permitted use within an industrial zone. Therefore, in order for the project to be constructed as proposed, the applicant must obtain a variance for the landfill from the Town of Coeymans. The Town also has a subdivision ordinance in effect and subdivision approval may be required. Finally, the Town has an ordinance specifically prohibiting the operation of a landfill by any entity in the Town other than the Town itself.
The City of Albany disputes the Town's claim to "involved agency" status. The City asserts that the Town's involvement is limited to the consideration of a building permit. So the Town role is only an interested agency. The City also contends that it is not subject to the local land use and zoning laws of the Town of Coeymans. In its letter, the City cites established tests of govern- mental immunity from zoning. The City also questions the constitutionality of the Town's ordinance prohibiting operation of the landfill.
Lead agency may be assigned or assumed only by an involved agency. In practice, an agency is usually treated as an involved agency unless it can be shown with reasonable certainty that it has no jurisdiction in the particular action. In this proceeding, it can be reasonably argued that the Town may have a jurisdictional role in this action and so I will treat it as an involved agency for the purpose of this determination.
However, the Region 4 office of DEC has the broad authority to review and decide on the application for a Solid Waste Management Facility Permit (6 NYCRR Part 360). The Region received a Solid Waste Management (Part 360 Permit) application from the City of Albany on behalf of the ANSWERS communities. Many of the anticipated impacts are also reviewable by DEC under its Part 360 Permit review. The regional and local impacts and concerns affecting all of the wasteshed will clearly be most appropriately addressed in the Part 360 Permit review.
DEC has a primary responsibility for regulating solid waste projects. This mandate includes encouraging local governments to engage in long-range planning and regional approaches to solid waste management. While this is not a peremptory role, DEC must fulfill this statutory mandate. The Region 4 office also has been delegated the responsibility to review the Water Quality Certificate for this project under the Section 401 of the Federal Clean Waters Act.
Capability for Assessment
The third criterion also favors the Region 4 office as lead agency.
The DEC Region 4 office has the staff and expertise necessary to meet the requirements of the regulation. The Town of Coeymans has expertise to assist with local land use issues and the ability to hire consultants to assist in an environmental review but does not routinely approve projects of this magnitude and nature.
I conclude, based on the facts presented, that the Region 4 office of the Department of Environmental Conservation best serves the function of lead agency for conduct of the environmental review for the ANSWERS application due to the regional nature of the impacts and DEC's broad jurisdiction under the Solid Waste Management Act, its delegated responsibilities under the Section 401 of the Clean Waters Act, and its expertise in reviewing landfill projects.
This decision does not in any manner limit or minimize the responsibility of other involved agencies to review the proposed action and to assist the Region 4 office in the environmental review process. The issues raised by the Town must be considered by the region in making its determination of significance. This project will likely require an Environmental Impact Statement and all of the involved agencies, especially the Town of Coeymans, should participate in the scoping of the EIS.
DGary L. Spielmann, Acting Executive Deputy Commissioner
Dated: March 14, 1995
Albany, New York
Distribution of Copies:
- J. Jennings, Mayor, City of Albany
V. Caark, Supervisor, Town of Coeymans
[Each municipality in the ANSWERS Planning Unit]
D. Robertson, NYS DOT
S. Lukowski, Albany County Health Department
M. Breslin, County Executive, Albany County
D. Bell, NYS Thruway Authority
M. Hoblock, Jr., Senator, 42nd District
J. Faso, Assemblyman, 102nd District
New York State Department of Environmental Conservation:
- Gary L. Spielmann, Acting Executive Deputy Commissioner
T. Adamczyk, Director, Region 4
W. Clarke, Regulatory Affairs, NYSDEC, Region 4
K. Martens, Legal Affairs, NYSDEC, Albany