Ulster Town Board v. DEC v. Ulster County
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 a proposal by the Edgemere Development Corporation in the Town of Ulster in Ulster County to modify a solid waste facility
- Town of Ulster Town Board
Region 3 Office, NYS Department of Environmental Conservation
Ulster County Resource Recovery Agency
This lead agency dispute is between the Town of Ulster Town Board (Town), the Region 3 office of DEC and the Ulster County Resource Recovery Agency (UCRRA). My decision to designate the Town 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 (ECL) and 6 NYCRR Part 617. I find that the potential impacts are primarily local in nature and the Town of Ulster has broad jurisdiction under its site plan review authority to assess all of the potential impacts.
Edgemere Development Corporation applied to DEC to modify an existing DEC permit issued pursuant to 6 NYCRR Part 360 (ID No. 3-5154-00081/00001-0) on April 17, 1992 which authorizes receipt and processing of a maximum of 130 tons per day of source-separated recyclables and construction and demolition materials. The modification would allow the project sponsor to extend an existing building 15 feet, provide an extension ramp to load trucks and to receive an additional 150 tons per day of municipal solid waste (MSW), a new waste stream. The project sponsor has also requested authority to store some MSW at the facility on a short-term basis (three days maximum). The facility is located on Route 32 in the Town of Ulster, Ulster County.
The proposed modification requires site plan approval from the Town. UCRRA, the other involved agency, asserts that the proposed facility must be designated by it before solid waste can be received. Furthermore, it claims that UCRRA must grant a license to the project sponsor before solid waste can be transferred from the proposed facility to a UCRRA-designated solid waste facility. However, the applicant disputes this and argues that UCRRA has no direct approval for this action and, therefore, it is not an involved agency and cannot be designated a lead agency. Since UCRRA may have jurisdiction to approve aspects of the project or its future operations, it will be treated as an involved agency for the purposes of this lead agency determination.
In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in 6 NYCRR Part 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.
I - LOCATION OF IMPACTS
Potential impacts from this project include odor, increased traffic, land use considerations and drainage. Traffic impacts will result from an increase in the number of daily vehicle trips primarily on Route 32. Although this is a main thoroughfare and a state highway, the impacts will be local. Land use considerations and drainage are clearly local impacts.
Both UCRRA and DEC note the potential regional impact on Ulster County's Solid Waste Management Plan and the public's health and safety. UCRRA argues that it is in the best position to assess this impact, given its status as a county agency. However, this regional impact must be assessed by whatever lead agency is designated, notwithstanding its status as a local, regional or state agency. And, it must be assessed by DEC in its review of the request for a permit modification.
Examination of the first criterion shows that the impacts will primarily affect the local geographic area as acknowledged by the Region 3 office.
II - BROADEST POWERS OF INVESTIGATION
The next criterion to consider is the breadth of jurisdiction, which also favors the Town as lead agency. In its site plan review, the Town will consider facility design, layout of physical features, mode of operation, hours of operation, mitigation measures, landscaping and other issues related to the local impacts from this project that will affect the local community and its residents.
In contrast, UCRRA's statutory authority appears to be limited to implementing the County Solid Waste Management Plan including directing waste to designated facilities and approving use of facilities operated by it. UCRRA's concerns about how the solid waste will be handled, transported and disposed of are shared by DEC and must be carefully considered under SEQR and the Part 360 permit review. So, although both UCRRA and DEC have broad jurisdiction to assess the regional waste management issue, the Town's jurisdiction qualifies it to assess the impacts on the local geographic area which constitute the majority of impacts.
III - ABILITY OF AGENCY TO PROVIDE A THOROUGH ASSESSMENT
The third criterion favors neither the Town, UCRRA nor the Region 3 office as lead agency. The Town's staff has had experience reviewing these types of projects. In fact, the Town was SEQR lead agency for the existing facility. UCRRA and the Region 3 office also have expertise in reviewing projects similar to this one. All the involved agencies have the resources through their own staffs or consultants to review the action..I conclude, based on the facts presented, that the Town should serve as lead agency for the SEQR assessment of the Edgemere Development Corporation application due to the local nature of the impacts and the broad jurisdiction it derives from its site plan review authority to assess these impacts.
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 Town in conducting its environmental review. The issues raised by UCRRA must be considered by the Town in making its determination of significance.
Langdon Marsh, Commissioner
Dated: June 10, 1995
Albany, New York
Distribution of copies:
- F. Sottile, Supervisor, Town of Ulster
C. Shaw, Director, UCRRA
S. Wing, Counsel, UCRRA
L. Zeisel, Counsel, Edgemere Development Corp.
New York State Department of Environmental Conservation:
- Commissioner Marsh
J. McGrane, Director, Region 3
M. Duke, Regulatory Affairs, NYSDEC, Region 3
K. Martens, Legal Affairs, NYSDEC, Albany