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Town of Moreau 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: Ashton Companies, Inc. - Batch Plant Town of Moreau

This decision to designate the Town Board of the Town of Moreau (hereinafter referred to as the "Town of Moreau") as lead agency for the above project is made pursuant to 6 NYCRR Part 617.6. My determination is based on the conclusion that the Town of Moreau, because of the primarily local nature of the impacts, and the broader power inherent in the review for an industrial planned unit development, more appropriately meets the criteria enumerated at 6 NYCRR 617.6(d)(1).

The proposed project is the application of the Ashton Companies, Inc. (hereinafter referred to as the "applicant") to construct and operate a batch plant in the Town of Moreau, Saratoga County. The proposed site presently contains an existing sand and gravel extraction operation and is located adjacent to Moreau Lake State Park.

On October 2, 1984, the Department of Environmental Conservation Region 5 office (hereinafter referred to as "Region 5") received a permit application from the applicant for the construction of an air emission source. At that time, Region 5 contacted the other involved agencies indicating that a lead agency must be designated and recommending that the Town of Moreau serve as lead agency due to the local nature of the impacts. On November 14, 1984, the Town of Moreau, which must issue an approval to allow the creation of an industrial planned unit development, declined to serve as lead agency and recommended that Region 5 assume that role. Subsequent correspondence (dated November 28, 1984, January 30, 1985, and February 2, 1985) between the two agencies failed to resolve the dispute.

In light of the inability of the two agencies to agree on lead agency, Region 5 in a letter dated February 14, 1985 requested that, pursuant to 6 NYCRR 617.6(e), the Commissioner of Environmental Conservation resolve the dispute. Additional information to assist me in reaching a decision was requested from both agencies by a letter dated February 27, 1985. Region 5 responded to this request on March 12, 1985, and a response was received from the Town of Moreau on March 26, 1985.

According to 6 NYCRR 617.6(d) in resolving lead agency disputes, I must consider: the location of the anticipated impacts, the breadth of the applicable jurisdiction, and the capability for providing a thorough environmental assessment. The potential impacts from the Ashton Companies' proposal include: air emissions associated with the transfer and processing of the aggregate materials, increased truck traffic on local roads, noise, and potential visual incompatibility with adjacent land uses. From the information provided, I have determined that these impacts will be primarily local, principally affecting the Town of Moreau.

The proximity of Moreau Lake State Park to the proposed action will result in some project impacts that may adversely affect a regional and, arguably, statewide resource. Moreau Lake State Park draws users from an area that extends beyond the boundaries of the Town of Moreau. In a letter dated November 19,1984, Deputy Commissioner Ivan Vamos of the Office of Parks, Recreation and Historic Preservation identified several potential impacts to the park which must be considered in the project review. Potential impacts included increased traffic, noise, and visual incompatibility. These impacts will be experienced by park patrons primarily when entering and leaving the park. Once within the main park boundaries, impacts will be eliminated due to the topography of the area. In addition, these impacts will be experienced primarily during the summer months when park usage is at its highest level.

In contrast, these same impacts at the local level will occur over an area that extends beyond the entrance of the park and they will be experienced throughout the year. On this basis, I find that the location of the anticipated impacts will be primarily local.

The second criterion to be applied is the breadth of the applicable jurisdictions. Here a clear difference also exists between the two agencies. The Town of Moreau, in reviewing an application for an industrial planned unit development, must address the fundamental land use questions. In arriving at its decision, it must consider all aspects of the project including the environmental compatibility, traffic, noise, and the suitability of such development at the proposed location. This breadth of review powers is clearly greater than that of Region 5 whose jurisdiction is limited to the review of a permit for an air emission source.

Based upon a careful consideration of all the facts presented, I find that the primarily local nature of the impacts and the greater breadth of review powers inherent in the review for an industrial planned unit development directs me to designate the Town of Moreau as lead agency for the Ashton Companies' proposal.

This decision does not mean that the Town of Moreau is the sole agency responsible for assessing the impacts of the proposed action. The Region 5 office and the Office of Parks, Recreation and Historic Preservation have both indicated their willingness to assist the Town of Moreau in complying with the provisions of the State Environmental Quality Review Act.

Henry G. Williams Commissioner
Dated: April 18, 1985
Albany, New York

Distribution of Copies:

  • I. Vamos, Deputy Commissioner, Office of Parks, Recreation and Historic Preservation
  • T. Monroe, Regional Director, Region 5
  • G. Congdon, Supervisor, Town of Moreau
  • J. Martin, Chairman, Town of Moreau Planning Board
  • D. Tarantino, Attorney, Town of Moreau
  • R. Kafin, Attorney
  • F. Hardt, Consultant, Ashton Companies, Inc.

New York State Department of Environmental Conservation:

  • L. Marsh
  • J. Corr
  • L. Concra
  • M. Gerstman
  • J. Jensen
  • R. Wild
  • T. Hall
  • J. Nasca
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