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Lead Agency Dispute: Town Board of the Town of Dover and the NYS DEC, through its Central Office

New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law

PROJECT: Cricket Valley Energy Center, LLC, Town of Dover, Dutchess County

DISPUTING AGENCIES: Town Board of the Town of Dover and the New York State Department of Environmental Conservation, through its Central Office

I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL]; see also, Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). The request has been made for the proposed 1,000 megawatts (MW) natural gas-fired, combined-cycle electric power generating facility, located in the Town of Dover, Dutchess County (known as "Cricket Valley Energy Center, LLC" (CVE)). The disputing agencies are the Town Board of the Town of Dover (Town Board) and the New York State Department of Environmental Conservation (DEC), through its Central Office. This designation of DEC through its Central Office to serve as lead agency is based on my finding that impacts are not primarily of local significance and that DEC has broad jurisdictional responsibilities over this project.

Action and Site
The proposed action involves an application by CVE to construct and operate an electric generating facility on an approximately 131-acre parcel of land in the Town of Dover, Dutchess County. The project would involve the following:

  • construction of the above-described electric generating facility, consisting of three separate combined-cycle units (one combustion steam turbine generator, one heat recovery steam generator and one steam turbine generator) and including 3 exhaust stacks estimated to be 282.5 feet in height, on a 30-acre footprint within a 131-acre parcel controlled by the applicant;
  • interconnection with a Consolidated Edison (ConEd) 345 kV transmission line abutting the north property line of the project site;
  • connection to the existing Iroquois Gas Transmission Company interstate natural gas pipeline on the north side of the property, for fuel supply via a short lateral line (<500 feet in length); and
  • related operations support equipment including associated Air Cooled Condensers and additional Balance of Plant equipment and systems, storage tanks, pumps and compressors.

The project would also involve:

  • use of on-site, bedrock water wells (approximately 600 - 800 feet in depth) to meet water needs; and,
  • demolition of existing unusable, vacant and partially collapsed industrial buildings on the site, clearing and grading to prepare the site for facility construction, and constructing roads, parking and other support appurtenances.

Regulatory Setting
Based on a letter received from the Town Board dated January 15, 2010, and letters from DEC dated December 16, 2010 and February 1, 2010, the respective regulatory jurisdiction of the Town Board and DEC are as follows:

  • The Town Board is entrusted with the decision whether or not to issue a special use permit (also referred to as a Special Permit), based upon findings that the proposed facility complies with the criteria established in the Town of Dover Town Code §145-63.B for issuance of special use permits.
  • DEC must decide whether to: issue an Air State Facility permit for construction and initial operation of the electric generating unit (ECL Article 19 and 6 NYCRR Subpart 201-5); subsequently issue a Title V facility permit (ECL Article 19 and 6 NYCRR Subpart 201-6); Title IV (Acid Rain) permit under the Clean Air Act of 1990; and possibly review the facility under the Prevention of Significant Deterioration (PSD) permitting program (6 NYCRR Part 231-7). DEC's water-related jurisdiction includes the need to determine whether to issue a Freshwater Wetlands Permit under Article 24 of the ECL based on activity affecting the Great Swamp wetland (wetland DP-22), one of the largest freshwater swamps in New York State, and whether to certify the project under Section 401 of the Clean Water Act (33 USC §1341). The project requires authorization under DEC's State Pollutant Discharge Elimination System (SPDES) Program for facility construction and operations (ECL §17-0803). If there is a potential for the taking of threatened or endangered species, DEC will have jurisdiction under Article 11 of the ECL (Endangered / Threatened Species License or Permit)(ECL 11-0535). The applicant will also need to register the well drilling activities with DEC (ECL §15-1525).

Lead agency for a SEQR review may be assumed only by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. Both the Town Board and DEC appear to satisfy the criteria to be considered involved agencies, and both have stated their interest in serving as lead agency. No other involved agencies have sought lead agency status or commented on the request for lead agency designation.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR §617.6(b)(5)(v):

  1. whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
  2. which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
  3. which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. First Criterion
The first criterion asks whether the potential impacts from the proposed action are of local, regional or statewide significance. Construction of the electric generating facility involving 30 acres of land disturbance, including a stormwater detention system, road, office and operational activities will very likely result in noise, dust and traffic-related impacts of a local nature. The Town Board points out that the electric generating facility may also have an impact on community character as it is being constructed in a rural community and may have separate impacts on land use, local visual character, historic resources, and traffic and noise as mentioned above. The Town Board correctly characterizes these impacts as being primarily local in nature with the caveat that in this case traffic may also be of regional concern, as it will likely have an impact on New York State Route 22. Socioeconomic impacts, which the Town Board raises, are primarily local.

DEC points out that the CVE Project is considered to be a major source of air pollutants under the Federal Clean Air Act and the New York State Environmental Conservation Law. While the facility may be designed to be highly efficient, with its three tall stacks the plant presents potential air quality and visual impacts that are clearly regional in nature. In the case of air quality impacts, these may even be extra-regional, given the fact that air pollution from a tall stack can be carried to areas distant from the emission source.

DEC also points out a number of other regionally significant natural resource impacts. The project is located immediately adjacent to the Great Swamp, a "Class I" state protected wetland. Class I wetlands provide the most critical of the State's wetland benefits. (See 6 NYCRR 663.5.) The wetland covers approximately 6000 acres and its associated watershed stretches 20 miles through the towns of Southeast, Patterson, Pawling and Dover. The Great Swamp is home to many animal species including the bog turtle, an endangered species, and the wood turtle, a species of special concern in New York State. A den of the threatened timber rattlesnake is also located a few miles from the project site. The Great Swamp is recognized in the State's Open Space Conservation Plan. See 2009 Open Space Conservation Plan, The electric generating plant proposes to use groundwater for cooling purposes. Such withdrawals may have an impact on water flows in the Great Swamp. Any impacts to the Great Swamp would clearly be regional as the Great Swamp is a wetland of regional significance.

Finally, staff point out that the site of the Cricket Valley Energy Center has a history of industrial activity. All buildings currently on the site will have to be demolished to make room for the new facility. Transportation and disposal of the waste from site preparation, demolition and /or construction may have both local and regional impacts.

The lead agency criteria (6 NYCRR 617.6[b][5][v]) provide that when impacts are primarily local in significance, all other considerations being equal, the local agency involved will be lead agency. I conclude that the impacts from the electric generating facility are predominantly regional, and all other considerations are not equal for this project, favoring DEC as lead agency.

B. Second Criterion
Special use permit jurisdiction gives the Town Board substantial powers to condition and harmonize the proposed land use with surrounding land uses. See New York State Town Law §274-b (McKinney's 2004). The object of the inquiry in the application for a special use permit is to determine whether the use complies with the general zoning plan and will not detrimentally affect the area. See Retail Property Trust v. Board of Zoning Appeals of the Town of Hempstead, 98 N.Y.2d 190 (2002). The Town Board aptly points out the breadth of its special use permit criteria. Through the legislative adoption of such criteria, the Town Board has given itself substantial powers to investigate and condition the land use aspects of the project.

Nonetheless, I find that the second criterion, breadth of authority to conduct the environmental review, favors DEC. As an initial matter, I note that the CVE is a regionally significant project. DEC, as a State agency, has the capacity to investigate the impacts of the electric generating plant from a regional and statewide perspective. DEC's jurisdiction over the project is crucial to the safe and environmentally compatible placement and operation of the facility, which includes air and water pollution controls, freshwater wetland and open space protection, and safe-guarding endangered and threatened species. DEC has a comprehensive set of regulations devoted to these subjects.

C. Third Criterion

The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action. This criterion also favors DEC. While the Town Board has demonstrated its ability to conduct a thorough SEQR review for large and complex projects with available staff and consultant assistance, DEC has a relatively large staff of professionals with unique expertise in air, wetland and water resource protection and a broad range of environmental impact assessment, and is capable of administering the SEQR review for a project of this size and complexity predominantly with in-house staff. In addition, since the project area is the site of former long-term industrial uses, DEC staff will be the appropriate personnel to approve and offer guidance if there are necessary investigations or remedial actions necessary to prepare the site for development.

Therefore, I find that this criterion also favors selecting DEC as the lead agency for the review of this project.

I find that DEC should serve as lead agency for the environmental review of the proposed CVE project because the impacts from the project are not primarily local in nature and have many regional and statewide implications. DEC has the broader governmental powers to investigate the impacts of the project and is able to provide the most thorough environmental assessment of the project. This designation in no way changes or diminishes the responsibilities or authority of other involved agencies with jurisdiction over the project, nor does it hamper the participation of interested agencies.
While designating DEC as lead agency, I must remind DEC staff to remain aware of all potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. In developing the record through the SEQR process, I am directing DEC to ensure that the Town Board's concerns as well as the concerns of all other involved agencies are factored into the environmental review process. Continued consultation with the Town of Dover and other involved agencies will enable DEC to better identify the full range of potential impacts of the project and, if necessary, explore alternatives and mitigation to avoid or minimize those impacts. Such consultation will also enable other agencies to identify SEQR and other related analyses, which may be warranted.

Alexander B. Grannis, Commissioner
Dated: April 12, 2010
Albany, New York

Distribution of Copies:

Disputing Parties
Town of Dover Town Board, Attn: Ryan Courtien, Supervisor
NYSDEC Central Office, Division of Environmental Permits, Attn:
Christopher Hogan, Project Manager

Cricket Valley Energy LLC, Attn: Robert De Meyere, Project
Manager, Advanced Power

New York State Department of Environmental Conservation
Lawrence H. Weintraub, Esq., Assistant Counsel, Office of
General Counsel, Central Office
Robert L. Ewing, Division of Environmental Permits, Central

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