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Otsego County v. Town of Hartwick v. Town of Milford 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: Proposed selection and development of a waste disposal site for Otsego County

This decision, to designate Otsego County through its Board of Representatives as lead agency, is made pursuant to 6NYCRR Part 617, Subdivision 617.6(e) of regulations implementing the State Environmental Quality Review Act (SEQR) and under the criteria for selection of lead agency set forth in paragraph 617.6(d)(1) of those regulations. My decision is based on the fact that the choices to be made regarding the proposed action are primarily of a countywide and regional nature. The proposed action is the selection and development of a countywide waste disposal process and site and includes a detailed study of several alternatives.

On July 9, 1986, Michael V. Coccoma, County Attorney, wrote a letter stating that Otsego County was in the process of establishing a new countywide solid waste disposal site. The letter was sent to state and local agencies to determine if any had interest in becoming lead agency for purposes of conducting an environmental review of the proposed action. It appears that no maps or descriptions of the project or project alternatives were circulated at that time by the County, nor was a completed environmental assessment form (EAF) made available. It is likely, however, that on the basis of local publicity given to preliminary studies undertaken by the County, a number of communities were aware of alternative locations being considered for the waste disposal site. Municipalities and agencies were asked to respond within thirty days regarding their interest in such lead role.

The County received responses from eight of the sixteen parties to whom the letter was circulated. Of these, five declined assumption of a lead agency role; the Town of Hartwick said it would be interested in becoming lead agency if it was one of the potential sites and the Town of Milford, believing it was definitely a potential site, requested it be selected as lead agency. The Region 4 office of the New York State Department of Environmental Conservation (DEC) requested a map and completed EAF before trying to make a decision on the appropriateness of its assumption of lead agency for review of this action.

After receipt of these responses, the County made no further attempt to resolve the lead agency question until writing to me on December 12, 1986, requesting that I designate the County, acting through the Board of Representatives, as lead agency. The December 12 letter from Carl F. Higgins, Chairman of the Board, stated it was the County's understanding that the Town of Milford had also expressed a desire to be lead agency..On January 6, 1987, Jerome Jensen of the DEC Division of Regulatory Affairs responded for me to the County, requesting further information on the possible dispute and noting that no formal expression of a dispute had been received from the Town of Milford. A separate inquiry was also sent to the Town of Milford.

Ralph Eichler, Supervisor of the Town of Milford, in a letter dated January 19,1987, affirmed the Town's interest in serving as lead agency, noting Town jurisdiction to grant permits for landfill disposal sites within the Town (Local Ordinance #1 of 1972) and stating that the Town and its planning board would have the broadest governmental power for investigating impacts of the proposed action. Mr. Eichler's letter also noted that the Town had not received an EAF from the County regarding the proposed action.

On January 21, Chairman Higgins responded to Mr. Jensen's letter of January 6, 1987, providing the information requested and noting that because "...no local permit is needed for the site development, it is our opinion that only the County of Otsego or the New York State DEC is eligible to be lead agency on this project." The letter set forth arguments on why the County would best serve as lead agency and attached was a copy of a full EAF for the proposed action, prepared on January 15,1987 by the County's consultant.

Mr. Higgins' letter also acknowledges that the County will have to evaluate DEIS materials from both the proposed Otsego County study and from the Tri-County Solid Waste Management Study (also referred to as the "Montgomery County Energy Study") before making a final determination on the direction of the Otsego County solid waste program. This latter point had been stressed earlier in correspondence between DEC's Region 4 staff and the County (A. Henningson to Chairman Higgins, October 29 and November 26, 1986).

The first criterion for selection of lead agency relates to whether the impacts of the action being considered are primarily of statewide, regional or local significance. Although a major element of the overall action will be the selection of a solid waste disposal site, the degree and nature of use of such site will be dependent on other choices related to the County's waste disposal decisions, primarily the extent to which the county may participate in non-landfill alternatives such as resource recovery and incineration/energy production.

The decisions made will have the potential to impact each municipality in the County. I acknowledge that the municipality which is chosen as the location for the facility may likely experience site-specific impacts such as those upon traffic, noise, air quality, aesthetics and changes in community character including land use values. It must also be recognized that impacts related to landfill use, waste stream changes, need for transfer stations, recycling and by-pass capacity will affect all communities and citizens in the County. Therefore, due to the countywide nature of the existing solid waste problem and the fact that several potential sites exist, I find that the impacts must be viewed in a broader context than that afforded from an individual town perspective.

The second criterion for consideration in selection of lead agency is which agency has the broadest governmental powers for investigation into the impacts of the proposed action. Since the proposed action is the selection, construction and operation of landfill facilities to satisfy the solid waste management needs of Otsego County, the agency chosen as lead agency should have broad jurisdictional authority. The Otsego County Board of Representatives, which has the statutory responsibility for approving the site and technology, clearly possesses the broad authority necessary to act as lead agency. However, the Town of Milford's authority may be limited. If the Town of Milford is chosen as the site of the facility, it may possess certain jurisdiction over the siting of the facility. But, if the proposed site is located outside of the Town of Milford, the Town would possess no greater jurisdiction than any other municipality within Otsego County that will be utilizing the facility. In fulfilling obligations to consider alternatives, the Town would have no authority to act upon any potential sites outside its boundaries.

The final criterion for selection of lead agency is which agency has the capacity to make the most thorough environmental assessment of the proposed action. Again, the choice must fall with Otsego County because the County Board of Representatives has available all the resources of county government to assess potential environmental impacts. The Town of Milford could hire a consultant to assist in the completion of the environmental review. However, the Town does not possess the authority to weigh overall operational decisions such as the landfill relationships to other waste disposal methods such as may be proposed in the Tri-County Solid Waste Management Study.

After careful consideration of all the facts presented and based on the countywide nature of the proposed project, the County's broad statutory authority to oversee and approve the facility, and its ability to draw on countywide resources, I find that Otsego County, acting through its Board of Representatives, is the agency best suited to act as lead agency for the preparation of an environmental impact statement (EIS) regarding the selection, development and utilization of the countywide landfill and/or other solid waste management facilities.

This lead agency decision in favor of Otsego County should not be taken as an indication that the concerns of the Town of Milford or any other town regarding possible selection of a countywide landfill within its bounds are minimized. The Town has made a case for the consideration and mitigation of a number of possible impacts. These issues should be addressed in any draft EIS accepted by the lead agency for public review.

Further, this decision in favor of Otsego County does not, in any manner, limit or minimize the responsibility of DEC or any other involved agency to review the entire action. If, after the selection by the County of a particular method of operation and one or more preferred sites, there is need to assess potential site-specific technical and permit-related impacts which may arise during the technical/engineering design of the proposed facility, consideration can be given to the assumption of a lead agency role by DEC or other involved agency for a supplemental EIS to evaluate such significant technical and permit-related impacts.

/s/
Henry G. Williams Commissioner
Dated: April 3, 1987
Albany, New York

Distribution of Copies:

  • C. Higgins, Chairman, Otsego County Board of Representatives
  • R. Eichler, Supervisor, Town of Milford
  • Involved Agencies (see attached list)

New York State Department of Environmental Conservation:

  • L. Marsh
  • J. Corr
  • I. King
  • L. Concra
  • M. Gerstman
  • J. Jensen
  • G. Bowers
  • J. Sama
  • A. Henningson
  • I. Bonsel

Additional Copies - Involved/ Interested Agencies:

  • 1. Otsego County Soil & Water Conservation District
    22 Main Street
    Cooperstown, New York 13326
  • 2. Hartwick Town Planning Board
    c/o Mr. Thomas Pritchard, Chairman
    R.D., Box 1A
    Hartwick, New York 13348
  • 3. Hartwick Town Board
    c/o Mrs. Carole B. Donahue, Supervisor
    P.O. Box 218
    Hartwick, New York 13348
  • 4. Laurens Town Board
    c/o Mr. Wayne S. Hess, Supervisor
    R.D. #1
    Laurens, New York 13796
  • 5. New York State Department of Health
    District Office
    R.D. #4, Box 51-C
    Oneonta, New York 13820
  • 6. New York State Department of Transportation
    Lower Oneida Street
    Oneonta, New York 13820
  • 7. New York State Department of Environmental Conservation
    Region 4, Div. of Lands and Forest
    Stamford, New York 12167
  • 8. Milford Town Planning Board
    c/o Mr. James Broe, Chairman
    Colliersville, New York 13747
  • 9. Laurens Town Planning Board
    Ms. Lois Kilpatrick, Chairman
    R.D. #3
    Oneonta, New Y6rk 13820
  • 10. Otsego County Planning Board
    Bruno Talevi, Chairman
    R.D. #2, Box 1050
    Cooperstown, New York 13326
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