DEC v. Town of Oyster Bay
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: Town of Oyster Bay Landfill Expansion (Phase II) of Old Bethpage Solid Waste Disposal Complex
This decision designating the New York State Department of Environmental Conservation, Region 1 (hereinafter referred to as "Region 1") as lead agency for the above project is made pursuant to 6 NYCRR 617.6. My determination is based on the conclusion that Region 1 more appropriately fits within all three of the criteria enumerated at 6 NYCRR 617.6(d)(1)(i).
The Town of Oyster Bay (hereinafter referred to as the "Town") first indicated its unwillingness to be lead agency in a letter to this Department's Region 1 office dated June 14, 1983 (Attachment A). A series of letters (dated July 28, 1983; September 19, 1983; October 7, 1983) have been provided to me wherein both the Town and Region 1 dispute who should be lead agency (see Attachment B for copies of each of these correspondence).
Pursuant to 6 NYCRR 617.6(d)(1)(i), the first criterion to be applied in resolving a lead agency dispute is whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance. In this regard, it is my conclusion that proposed impacts to be mitigated can logically be viewed as regional in nature.
Based upon a careful consideration of all the facts and circumstances in this case, I find that the anticipated impact of primary concern is potential groundwater contamination. Further, I find that the proposed site is located over the deep flow recharge area within the sole-source aquifer. I recognize that a double liner system with monitoring is proposed as reasonably providing adequate protection from contamination of the sole source aquifer. Nonetheless, any potential for contamination of Long Island's sole-source aquifer is of critical importance and clearly has regional implications. In addition, these regional concerns outweigh the identified local concerns for purposes of this lead agency decision.
I also find that Region 1, by virtue of 6 NYCRR 360 permit jurisdiction, has the greater breadth of governmental powers for investigation into the environmental impacts of this project. Finally, Region 1 has expert scientific and technical staff available to provide a more thorough evaluation of the proposal than the Town would be able to provide..It is important to note that the Attorney General's Office on behalf of New York State has commenced enforcement proceedings against the Town for alleged contamination of groundwater from leachate emanating from the existing landfill (Phases I and IA). Pursuant to 6 NYCRR 621.3(e), the Department may suspend processing and review of an application for actions directly related to the activity for which the permit is sought. Nothing in this determination is to be construed as compromising any future option I may have with regard to implementing the provisions of 6 NYCRR 621.3. This determination to authorize Region 1, as lead agency, to continue processing the permits associated with this action is, in part, based on my desire to continue to explore a method for the environmentally safe disposal of solid waste, while concurrently providing the Town with the means to alleviate the existing contamination.
One additional aspect of this determination warrants attention. The Legislature recently enacted an amendment to Article 27 of the Environmental Conservation Law (see Chapter 299 of the Laws of 1983; ECL 27-0704) prohibiting the disposal of municipal, industrial or commercial solid wastes in a landfill located in a deep flow recharge area. An exception to this prohibition exists where any landfill facility is used for a limited period of time solely to provide capacity prior to implementation of resource recovery. While this proposal fits squarely within this statutory framework, the statute does not become effective until December 19, 1983. Given this statement of public policy by the Legislature, I am directing the lead agency to assure that the draft environmental impact statement contains a full analysis of a resource recovery alternative to the proposed landfill expansion. Furthermore, the lead agency is directed to assure that the standards for construction of a landfill over a deep flow recharge area as set forth in ECL 27-0704(5) are incorporated as mitigation proposals in the overall project assessment.
This is the first lead agency dispute in which both of the involved agencies have declined to assume the lead agency role. SEQR dictates that the lead agency is responsible for guaranteeing that the SEQR process is carried out in accordance with the legislative findings which require consideration of environmental factors in agency decision-making. The importance of the lead agency in ensuring that the integrity of SEQR is satisfied cannot be overemphasized. See Glen Head - Glenwood Landing Civil Council, Inc. v. Town of Oyster Bay, 88 A.D.2d 484, 453 N.Y.S. 2d (2nd Dept., 1982). This holds true for the more typical situation in which more than one agency desires to serve as lead agency as well as situations similar to this case where involved agencies decline to assume that role. Furthermore, with this determination of lead agency, it remains incumbent that both involved agencies work closely to compile an adequate record for decision-making while assuring a comprehensive, coordinated review of the project proposal. Both agencies must remain cognizant of the fact that each is required to independently acknowledge in writing that the procedural and substantive requirements of ECL Article 8 have been met.
Henry G. Williams Commissioner
Dated: October 26, 1983
Albany, New York
Distribution of Copies:
- Harold Berger - Regional Director, Region 1
John VanderVeer - Superintendent of Environmental Control, Town of Oyster Bay
Robert Osar - Department of Law
Frank Antetomaso Commissioner, Dept. of Public Works, Town of Oyster Bay
New York State Department of Environmental Conservation:
- L. Marsh