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Westchester Co DEF v. DEC v. City of Peekskill

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: Westchester County Long-Term, Land-Based Sludge Management Program

DISPUTING AGENCIES:

  • Westchester County Dept. of Environmental Facilities
  • NYS Dept. of Environmental Conservation
  • City of Peekskill

This decision to designate as lead agency the Westchester County Department of Environmental Facilities (WCDEF) is made pursuant to 6NYCRR Part 617.6(e). My determination is based on the facts that the WCDEF has been given broad powers to develop and operate a sludge management facility for Westchester County and that the impacts are of regional importance. Therefore, the WCDEF more appropriately meets the criteria for lead agency enumerated at 6NYCRR Part 617.6(e)(5).

The overall action, as described by the WCDEF, is as follows: "The sludge management program involves the selection and implementation of a long-term solution for sludge management and disposal to replace the current sludge disposal practice of ocean dumping. On November 19, 1988, the President of the United States signed into law the Ocean Dumping Ban Act of 1988 which mandates that all ocean disposal of sludge be discontinued by December 31, 1991 by implementing a permanent land-based disposal method. If a permanent facility could not be operating by this date, the law required an Enforcement Agreement with the United States and the State of New York which included a binding schedule for implementing an interim disposal measure to meet the December 31, 1991 deadline and a separate schedule for the implementation of a long-term solution for sludge management and disposal. The County of Westchester signed a Consent Decree and Enforcement Agreement in June of 1989 containing both of these schedules."

"The County is bound by the Consent Decree to implement a long-term alternative system of sewage sludge management and disposal by September 15, 1995. It is the environmental review of this action for which lead agency status will continue. The long-term solution for sludge management and disposal involves the preparation of a detailed land-based sludge management facilities plan. The plan will include the development and evaluation of alternative methods of sludge treatment and disposal, a site selection process, and the recommendation of a long-term alternative system (land-based) for sludge management."

"The sludge management technology would be selected from a closer evaluation of those discussed in the GEIS [already prepared]. The six technologies addressed in the GEIS are: landfilling, chemical fixation, heat drying, coincineration, incineration, and composting."

"At this time, neither a site nor a specific technology has been proposed. It has been determined that the site would be within the County borders, would not currently be in use, can be accessed via existing transportation corridors. The project would not be sited in regulated wetlands and critical habitats or affect historic and archaeological resources, or surface water bodies. Working with these criteria, the County and its consultants analyzed all open space in the County and came up with approximately 120 potential sites. These sites were then further evaluated and we now have a list of twenty candidate sites."

The list of twenty sites, prepared and released by the WCDEF, is attached to this Determination. They are wholly or partially located within fourteen municipalities of Westchester County, among them the City of Peekskill.

On November 28, 1990, Anthony M. Landi, P.E., Commissioner of the WCDEF, sent letters to all potential involved agencies, notifying them of the WCDEF's intent to assume the role of lead agency for the preparation of a site-specific environmental impact statement (EIS) which would supplement the generic EIS for the County's land-based sludge management program which was completed by the WCDEF on August 14, 1990. The WCDEF held a public information meeting on December 10, 1990, which covered the results of the technology alternatives selection work and the facility siting study. In addition, the meeting discussed the proposed scope of the site- specific EIS.

In a letter dated December 10, 1990 to Robert Matarazzo of the WCDEF, Andrew Singelakis, Assistant Planner for the City of Peekskill, provided a number of comments on the scope of the site-specific EIS, covering population, cumulative impacts, socio-economic factors, zoning and land use, site limitations, and the City's Local Waterfront Revitalization Program. The letter also suggested that the City of Peekskill be involved in a co-lead agency role with the WCDEF, should the Peekskill site alternative be chosen for the site-specific EIS.

In a letter dated December 18, 1990, Commissioner Landi wrote to me regarding Mr. Singelakis' letter, noting that "[a]lthough the letter does not appear to be a formal request under the SEQRA regulations, it appears that the City of Peekskill and the Peekskill Industrial Development Agency may be attempting to dispute the designation of Westchester County Department of Environmental Facilities as lead agency for the County's overall sludge management program." Commissioner Landi's letter then provides his agency's rationale for why it should continue as sole lead agency for this action.

On December 15, Commissioner Landi was sent a letter, to which I was copied, from Joseph J. Seymour, Peekskill City Manager, noting that the City of Peekskill had no objections to the WCDEF serving as lead agency for the long-term, land-based sludge management program except "...that at such time as a site specific plan for a Sludge Disposal Facility has been identified and is to be reviewed, the City of Peekskill hereby reserves its rights in regard to its potential status as Lead Agency for any site to be located within its municipal boundaries." Since the plan apparently identifies a site or sites within the City, that letter was deemed to be a lead agency dispute letter.

In making a determination regarding lead agency in case of a dispute, I am guided, among other things, by the three criteria listed, in order of importance, in paragraph 617.6(e)(5) of 6NYCRR Part 617, the statewide regulations for implementing SEQR. Before applying these criteria, it is also necessary to determine whether the disputing agencies are involved agencies; that is, that they have discretionary decisions to make regarding the action which are subject to SEQR.

As a responsible agency for the development and operation of the sludge management system for Westchester County, it is clear that the WCDEF has such discretion and is clearly an involved agency. This is further amplified by the fact that the WCDEF has already served as lead agency for the preparation of a generic EIS for this process. The City of Peekskill appears also to have discretionary decisions to make regarding this project since a zoning change, variance or use permit may be required, the site must be acquired through the City Industrial Development Agency, and public water and other public services may be required from the City.

The first criterion under 617.6(e)(5) is whether the impacts of the action are primarily of statewide, regional or local significance. Mr. Singelakis has provided a number of issues for the City of Peekskill which are of local significance and should be addressed in a supplemental site-specific EIS, presuming Peekskill to be the primary alternative site. However, the overwhelming need for Westchester County to resolve its sludge management problems (including those of Peekskill) is at least a regional issue, if not state and federal, and must be considered of even greater significance than the local issues.

The second criterion is which agency has the broadest governmental power for investigation of the impacts of the proposed action. The City of Peekskill (or other communities for other potential primary sites) appears to have certain land use control, acquisition and public service considerations under which it can evaluate the proposed action if the facility is located within its boundaries. But the WCDEF has broad authority to consider all aspects of the establishment of a sludge management system for the County in which it must be able to evaluate a variety of alternative locations. The City of Peekskill has no jurisdiction to look at other alternative sites from among the twenty which have reached the second selection screening.

The third criterion is which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action. While the City of Peekskill appears to have a capable planning staff and access to a variety of consultants, the WCDEF already has completed a generic EIS and is completely familiar, along with its consultants, with details of all the preferred sludge management alternatives.

Based on the above considerations, I conclude that the Westchester County Department of Environmental Facilities is the most appropriate agency to serve in lead role for the preparation of a site-specific supplemental environmental impact statement for the Westchester County Sludge Management Program under the State Environmental Quality Review process. The primary impacts of the proposed action are of regional and statewide concern and can best be addressed by the County agency with the responsibility to resolve such impacts. In addition, the WCDEF has the broadest jurisdiction to look into the various alternatives related to this action and, in fact, has already completed a generic EIS for the action. I, therefore, designate the Westchester County Department of Environmental Facilities as lead agency for preparation of the required site-specific supplemental EIS for this action.

Although the proposed sludge management facility may be located within one of the City's industrially zoned areas, Mr. Singelakis' letter on behalf of the City of Peekskill has raised a number of substantive issues regarding the facility's compatibility. Where significant, such issues should be covered within any supplemental EIS prepared for the Peekskill site.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review this entire proposed action and to assist the WCDEF in completion of the environmental review process. Each involved agency continues to retain all underlying jurisdictions with respect to the project and must be satisfied its concerns have been adequately addressed before making decisions to approve or disapprove.

/s/
Thomas C. Jorling Commissioner
Dated: 12/28/90
Albany, New York

Distribution of Copies:

  • A. Landi, Commissioner, Westchester Co. DEF
  • A. Trelewicz, Deputy Commr., Westchester Co. DEF
  • R. Matarazzo, Westchester Co. DEF
  • R. D. Jackson, Mayor, City of Peekskill
  • J. Seymour, Peekskill City Manager
  • W. J. Florence, Jr., Esq., Peekskill Corporation Counsel
  • D. Douglas, Planning Director, City of Peekskill
  • A. Singelakis, Ass't Planner, City of Peekskill
  • J. Stallmer, DEC Div. of Regulatory Affairs
  • M. Duke, DEC Region 3, New Paltz

New York State Department of Environmental Conservation:

  • L. Marsh
  • M. Gerstman
  • G. Kamaras, Legal Affairs
  • J. Jensen, DRA
  • J. Stallmer DRA
  • F. Howell, DRA
  • R. Manna, DEC Region 3, New Paltz
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