DEC v. Town of Plattenkill
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: Hudson Valley Environmental Services Sanitary Landfill Proposal
This decision to designate the Department of Environmental Conservation Region 3 office (hereinafter referred to "Region 3") as lead agency for the above project is made pursuant to 6 NYCRR 617.6. My determination is based on the conclusion that the Town of Plattekill does not possess the jurisdiction to act as lead agency.
The proposed project is the expansion and operation of a sanitary landfill by Hudson Valley Environmental Services, Inc. (hereinafter referred to as "the Applicant") at the site of the former Hertel-Dutchess Sanitary Landfill in the Town of Plattekill. This 75-acre site began operations as a sanitary landfill in 1963. Refuse disposal was terminated in 1976, after utilization of 9+ acres, when the site's operating permit was revoked by the Ulster County Department of Health. An application to resume disposal activities and expand the site was submitted in December of 1981 by the Applicant. This application was deemed incomplete by Region 3 on December 19, 1981. At that time, the Department of Environmental Conservation's Region 3 office agreed to the designation of the Town of Plattekill as lead agency based on the Town's jurisdiction to review the proposal with respect to community zoning and on the anticipated local impacts associated with the proposal. The Supreme Court, Ulster County, in May of 1983 ruled that the landfill was a pre-existing, non-conforming use and, therefore, not subject to the Town of Plattekill's zoning ordinance (this decision was affirmed by the Appellate Division of the Supreme Court in a decision dated April 26, 1984).
In November of 1983, the Applicant submitted a second application to Region 3. The applicant proposed to place additional fill on top of the original 9+ acres and expand the utilized portion of the site to 41 acres. After receiving the second application, Region 3, in a letter dated December 7, 1983, contacted the Town of Plattekill stating that due to the May 1983 Supreme Court decision, Region 3 was the only involved agency and, therefore, Region 3 would act as lead agency for the project. The Town, in a letter dated December 15, 1983, responded that they still possessed jurisdiction other than zoning and that they wanted to continue in the role as lead agency. The authority to assume lead agency status is predicated on an agency's jurisdiction to fund, approve, or directly undertake an action. Glen Head - Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay, 88 A.D. 2d 484 (2nd Dept., 1982); 6 NYCRR 617.2(q). Absent such jurisdiction, an agency not an involved agency is not an involved agency and thus cannot serve as lead agency for the project review.
The first question that must be resolved is whether the Town is an involved agency. The applicant claims that by virtue of the judicial determination concerning the status of the landfill under the "Town's" zoning ordinance, the Town's only authority to approve the action is ministerial. Reference is made to various sections of local law to support that claim. The law requires an applicant to obtain a license from the Town to operate a landfill. Approval by the Town is based on three factors:
- (1) proof that the applicant has complied with all applicable federal and state laws including the Environmental Conservation Law;
- (2) payment of an application fee of $50.00;
- (3) submission of a bond or financial security for a minimum of $10,000,000.
None of these factors involve the exercise of discretion in that the Town is constrained to issue approvals on satisfactory proof that all federal and state permits have been received, the fee has been paid and the bond posted. In this case, the Town's law only confers a ministerial function to the Board in that the Town does not have discretionary authority to approve, deny, or condition the project. Therefore, the Town is not an involved agency.
Even if the Town had the authority to serve as lead agency, I conclude that application of the criteria in 6 NYCRR Part 617.6 would establish Region 3 as lead agency for the following reasons:
- (1) Although some impacts associated with the action are local in nature, the Department's Phase I investigation, completed in November 1983, found that the former Hertel site was used to dispose hazardous waste and confirmed the existence of ground and surface water contamination on the site and also identified the potential for off-site migration of pollutants. The potential contamination of natural resources based on the toxicity of the wastes found to be present is an overriding regional concern. In fact, the site has been placed on the New York State list of Hazardous Waste Disposal Sites and has been submitted to the U.S. Environmental Protection Agency as a candidate for inclusion on the National Priorities list.
- (2) The Department's jurisdiction to review the environmental effects of the landfill is much broader than the Town's and deals specifically with the impacts of concern. Indeed, the Town's licensing authority is predicated on compliance with applicable state laws.
- (3) Finally, the region staff has the greater capability for performing an environmental review. This is evidenced in part by the studies done in connection with the listing of the site and its nomination to the USEPA.
This decision does not mean that the Town of Plattekill should not actively participate in the review for this proposal. The Department of Environmental Conservation is firmly committed to encouraging local agencies to actively participate in the SEQR process, whether they are involved agencies or interested agencies.
Henry G. Williams Commissioner
Dated: May 21, 1984
Albany, New York
Distribution of Copies:
- Paul Keller - Regional Director, Region 3
Herbert Jenkins - Supervisor, Town of Plattekill
Andrew Hertel - President, Hudson Valley Environmental Services, Inc.
Richard Greenblatt - Attorney, Town of Plattekill
Paul Gruner - Attorney, Hudson Valley Environmental Services
New York State Department of Environmental Conservation:
- L. Marsh