Town of Greenport 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: Construction and operation of a tire recycling and storage facility by Cycletech, Inc. in the Town of Greenport in Columbia County
DISPUTING AGENCIES: Town of Greenport Planning Board and the New York State Department of Environmental Conservation Region 4 Office
This decision to designate the Town of Greenport Planning Board 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 (ECL) and 6 NYCRR Part 617. I find that the anticipated impacts of the action are of primarily local significance and that the site plan review authority of the town board provides adequate authority for the review of the modified project and its associated impacts.
The proposed project consists of the construction and operation of a tire recycling and storage facility by Cycletech, Inc. on a 29.1-acre portion of a 76.1-acre site in the Town of Greenport, Columbia County. Cycletech, Inc. received a Solid Waste Management Facility permit to construct a recyclable handling and waste tire storage facility on January 5, 1993. On August 12,1996, Cycletech requested to modify the permit. The DEC Region 4 Office suspended review of the application and the establishment of a lead agency on August 27, 1996, pending resolution of an enforcement action initiated by DEC in response to numerous purported permit violations. A second request by Cycletech to modify the permit was received on April 1, 1997. Following the signing of the Stipulation of Settlement by Cycletech and the DEC, the DEC Region 4 Office agreed that processing of the permit and the SEQR process could recommence. The Town of Greenport, which had requested lead agency during the initial lead agency solicitation in August\September of 1996, has restated its request for lead agency status under the State Environmental Quality Review (SEQR) process.
The Region 4 Office of DEC has the jurisdiction to issue or deny an application to construct and operate a waste tire storage facility under 6 NYCRR Part 360 and a State Pollution Discharge Elimination System (SPDES) permit under 6 NYCRR Parts 750-758. The Town of Greenport has jurisdiction under its site plan review authority to approve or deny the proposed modifications to the existing site plan.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These are: (1) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); (2) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
The potential impacts identified by the agencies include: traffic, noise, odors, dust, water use, sewerage, aesthetics, vector control of insects and rodents, wetlands impacts and surface water runoff. I find that all of these impacts are primarily local in nature. Potential for impact to freshwater wetland HS-4, which is located 1,200 feet northeast of the site, and the potential for a fire are speculative in nature and, therefore, do not weigh heavily in this decision. When the impacts are primarily of local significance, the local agency, in this case the Town of Greenport, should be the lead agency.
Criterion number 2 requires that I determine which agency has the broadest governmental powers for investigating the potential environmental impacts from the proposed action. Both agencies have broad jurisdiction in this matter. The Town Planning Board has the specific authority to consider all of the associated impacts from the facility under its site plan review process, while DEC has similar authority under the Part 360 regulations.
Both agencies possess the ability to obtain the necessary staff or resources to undertake an adequate environmental review for the proposed project through the use of consultants or existing staff. Therefore, the third criterion regarding which agency has the greatest capability for providing the most thorough environmental assessment for the proposed action is not a factor in this decision.
Another major consideration in this proposed project is the continuing efforts of DEC staff, in conjunction with the Attorney General's office, to bring this applicant into compliance with the provisions of the ECL by following through with the stipulated agreement that the applicant voluntarily signed and has yet to fully comply. This decision with regard to lead agency has no bearing on this legal matter. DEC retains the full range of prosecutorial discretion to bring this facility into compliance.
I conclude, based on the fact that the potential environmental impacts for the proposed project are local in nature and that the remaining environmental considerations are equal, the Town of Greenport Planning Board should serve as lead agency for the conduct of the environmental review for the Cycletech, Inc. project.
This decision in no way limits or lessens the jurisdiction of the Region 4 Office of DEC in its review of the application for a Part 360 permit or its continuing efforts to bring this facility into full compliance with the ECL. The Town of Greenport Planning Board must work closely with the Region 4 Office of DEC to ensure that the environmental record contains the information needed by the DEC to make a decision on the proposed project.
John P. Cahill, Commissioner
Dated: July 9, 1998
Albany, New York
Distribution of Copies:
- William Clarke, Regional Permit Administrator
Michael Higgins, Environmental Analyst
George Super, Chairman, Town of Greenport Planning Board
New York State Department of Environmental Conservation:
- Victor Gallo