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DEC v. Town of Niagara

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: Newco Waste Systems, Inc. - Area III, V, VI, VII Sanitary Landfills

1. Pursuant to the provisions of Article 8 of the ECL, subdivision 6 Section 8-0111:
"When an action is to be carried out or approved by two or more agencies, the determination of whether the action may have a significant effect on the environment shall be made by the lead agency having principal responsibility for carrying out or approving such action and such agency shall prepare, or cause to be prepared by contract or otherwise, the environmental impact statement for the action if such a statement is required by this article. In the event that there is a question as to which is the lead agency, any agency may submit the question to the Commissioner and the Commissioner shall designate the lead agency, giving due consideration to the capacity of such agency to fulfill adequately the requirements of this article."

and pursuant to the provisions of 6NYCRR 617, subdivision (c)(1) of Section 617.6.

"Actions for which lead agency cannot be designated by agreement.

(1) If within the 30-day period allotted for designation of lead agency the involved agencies are unable to agree upon which agency shall be the lead agency, any involved agency or the applicant may write to the Commissioner requesting that a lead agency be designated. Simultaneously, copies of the request shall be mailed to all involved agencies and the applicant."

2. In a letter dated January 18, 1982, the Town of Niagara (hereafter, "the Town") requested the Commissioner to designate the Town as lead agency. The request is based on the following:

a. The impacts of the proposed action are considered primarily local in nature by the Town. Issues of concern include:

(1) The proposed action is described as wholly within the Town. (2) The proposed action potentially conflicts with the Town's adopted master plan. (3) The Town could potentially suffer a loss of tax base. (4) The storm retention facility within the proposed action could affect Town plans for a drainage improvement program.

b. The Town claims technical capability for providing a thorough assessment of the proposed action, based on lead agency experience in a number of other landfill applications.

c. The Town claims jurisdiction pursuant to their Local Law No. 8, 1980.

3. On May 29, 1979, the Region 9 office of the New York State Department of Environmental Conservation (hereafter, "the Department") issued a positive declaration on the original application of the subject applicant for initial permits to build and operate the Pine Avenue Waste Management Site. The Department was determined as lead agency after coordination of review with the Town and other agencies. The Town did not object to this determination. A draft and a final environmental impact statement (EIS) were filed on the original application and the EIS referenced the future potential for landfill expansion. Since the decision on the original application, the Department has issued three final supplemental environmental impact statements on additions to the Pine Avenue Facility, in coordination with potentially involved agencies including the Town of Niagara.

The proposed action is considered to be an expansion to the overall facility. The Department, continuing as lead agency for the project, called for the preparation of a supplemental EIS on December 31, 1981 to address the site-specific aspects of the currently proposed action. Designation of the Town as lead agency would cause a disruption of the continuity of review that has been established over the history of this facility.

4. Pursuant to 6 NYCRR 617 subdivision (d)(1)(I) of Section 617.6, the most important criterion for determining lead agency designation, particularly in the case where two local agencies are in disagreement, is as follows:

"(I) ... i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved shall be the lead agency."

While the currently proposed action may be located almost wholly within the Town, the overall project includes and impacts both the Town and the City of Niagara Falls. The proposed action can be further related to the Hooker Energy From Waste, Niagara Falls Facility. The Hooker Facility services Erie and Niagara Counties, and depends on the proposed action for disposal of process residues and unburnable wastes [ref. Hooker Energy From Waste Niagara Falls Facility final EIS filed 10-23-78]. Also, the overall project is one of only two comprehensive hazardous waste management facilities in New York State. Hazardous wastes from other areas of the state and other states are transported to the facility.

Therefore, the potential impacts of the proposed action, in the context of the overall project and related facilities, are primarily regional rather than local in nature.

5. Subdivision (d)(1)(ii) of 617.6 states as a lead agency criterion:

"(ii) which agency has the broadest governmental powers for investigation into the impacts of the proposed action;"

Clearly, the Department has broader jurisdiction and powers of review over the project than the Town, since the Department's powers apply to the entire Pine Avenue Waste Management Site. This assumes that the Town does have jurisdiction (see item 6 below).

6. Finally, the Town is currently under a preliminary injunction against enforcement of its Local Law No. 8, 1980 [Niagara Recycling, Inc., et.al. v. Town of Niagara, No. 673-1981 (4th Dept., Nov. l3, 1981). This injunction puts in question the Town's jurisdiction as an involved agency in the proposed action. Only involved agencies are considered for lead agency status under Part 617.6. Even if Local Law No. 8, 1980 should be held constitu- tional, the determination of DEC as lead agency would stand, based on the foregoing reasons.

Therefore, the Department of Environmental Conservation Region 9 office is hereby designated to continue its role as lead agency for the application of Newco Systems, Inc. - Area III, V, VI, VII Sanitary Landfills. The Department, as lead agency, will continue to solicit and incorporate the environmental concerns of the Town of Niagara and other agencies in both the scoping process and public comment procedures for the Supplemental Environmental Impact Statement being prepared for the proposed action.

/s/
Robert F. Flack Commissioner
Dated: Feb. 26, 1982
Albany, New York

Distribution of Copies:

  • C. Richards, Supervisor, Town of Niagara
    M. O'Laughlin, Mayor, City of Niagara
    J. Kehoe, Niagara County Health Department

New York State Department of Environmental Conservation:

  • J. Spagnoli, Regional Director, Region 9
    S. Doleski, Regional Supervisor of Regulatory Affairs, Region 9
    R. Persico, General Counsel/Deputy Commissioner
    L. Concra, Director, Division of Regulatory Affairs
    T. Ulasewicz, Civil Counsel
    D. Ruzow, Hearings/Regulatory Counsel
    M. Ely, SEQR Counsel
    J. Jensen, Chief, Bureau of Environmental Quality Review
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