NYS DOH v. Town of Moreau
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: 32-Lot Realty Subdivision, Town of Moreau
This decision to designate the New York State Department of Health (hereinafter referred to as "the Department of Health") as lead agency for the above project is made pursuant to 6 NYCRR 617.6. My determination is based on the conclusion that the potential impact to public health is the primary issue of environmental concern, as defined in 6 NYCRR 617.11(a)(7) and that, among the involved agencies, the Department of Health has the broadest jurisdiction and the staff expertise to assess this impact.
The proposed project is the subdivision of real property to allow the construction of 32 homes on a 30-acre site owned by Arthur Lewis (hereinafter referred to as "the applicant") in the Town of Moreau, Saratoga County. The applicant's property is located immediately adjacent to a landfill which is known to contain hazardous wastes. The landfill has been the subject of studies to determine the nature and extent of the contamination. As a result of these studies, the site has been placed on the New York List of Inactive Hazardous Waste Disposal Sites. Litigation is in progress to determine which party is responsible for remediation of the site.
According to 6 NYCRR 617.6(d) in solving lead agency disputes, I must consider: the location of the anticipated impacts; the breadth of the applicable jurisdictions; and the capability for providing a thorough environmental assessment.
Participation in the lead agency process is predicated upon the existence of a jurisdiction. An agency must possess the authority to approve, fund or be directly undertaking the action to qualify as a candidate for lead agency. Two agencies have the necessary jurisdiction to serve as lead agency: Town of Moreau, through the subdivision review process under Town Law Section 276; and the Department of Health, under 10 NYCRR Part 74 implementing the Public Health Law.
The current proposal presents two alternative water supply scenarios. The jurisdiction of the Department of Environmental Conservation (DEC) is dependent upon the use of a public water supply hookup. However, it may well be negated if the private well alternative is followed. It is important to the continuity of the SEQR process that the lead agency be clearly involved throughout the entire review process. The breadth of the DEC's jurisdiction to investigate the anticipated environmental impacts is diminished by the uncertainty of its permit authority.
A typical subdivision proposal generates concerns about impacts of such matters as traffic, open space, sewage disposal and water supply. For developments such as the applicant's proposal, these impacts are generally local in nature. Absent the additional factor that the site is adjacent to and may be contaminated by a landfill, lead agency would appropriately lie with the Town of Moreau. However, this project is unique in that the primary environmental impact issue is not the effect of the proposal on the environment, but rather the impact of the existing environment on the proposal. The typical impacts identified above are relatively minor when compared to the potential public health impacts upon the future residents of the subdivision due to the proximity of the landfill. For example, the environmental assessment form completed by the applicant indicates that the project may result in the release of substances hazardous to the health of the residents of the project. The Department of Health, in its May 30, 1984 submission, represents that the soils and groundwater within the site are contaminated by PCBs and solvents. Indeed, the listing of the Moreau landfill on the National Priorities list is evidence of the significant public health threat posed by the site. This threat is compounded by the prospect of a 32-lot subdivision being constructed immediately adjacent to the site.
The Department of Health's approval pursuant to Part 74 is to insure that realty subdivisions have an adequate and satisfactory water supply and sewage disposal facilities. However, subdivision 74.7(e) also gives the Commissioner of Health or his representative the authority to require that a report or plan be provided that assesses "the effect on the subdivision of environmental pollutants or hazards either on the property or from the surrounding areas" (emphasis added). It is clear that of the three agencies, the Department of Health's jurisdiction is the most directly related to the issue of primary concern.
The Department of Health also possesses the staff and specific expertise to accurately assess the impacts on public health associated with the adjacent landfill.
Based upon a careful consideration of all the facts presented to me by the petitioners, I designate the New York State Department of Health as the lead agency for the review of the Arthur Lewis subdivision proposal in the Town of Moreau. The other involved agencies, the Department of Environmental Conservation and the Town of Moreau Planning Board have the responsibility to assist the Department of Health in the completion of the environmental review process. If a draft environmental impact statement (DEIS) is required, both agencies should actively participate in the scoping and review of the statement.
Henry G. Williams Commissioner
Dated: July 25, 1984
Albany, New York
Distribution of Copies:
- Thomas Monroe - Regional Director, Region 5, Dept. of Environmental Conservation
Jeffrey Martin - Chairman, Town of Moreau Planning Board
Brian Fear - District Health Director, NYS Dept. of Health
Lawrence Gordon - Director, Saratoga County Planning Board
Arthur Lewis - Applicant
New York State Department of Environmental Conservation:
- L. Marsh