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Lead Agency Dispute: Town of Lockport Town Board v. DEC

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

PROJECT: Empire Energy/Niagara Cogeneration Facility at Harrison Radiator Division, Lockport, New York

This decision to designate the Department of Environmental Conservation (DEC) staff ("staff") as the lead agency for the conduct of a site-specific supplemental environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to 6 NYCRR Part 617. My decision is based on the fact that the majority of the potential environmental impacts which may result from this supplemental phase of a previously reviewed overall action are of regional and statewide significance and jurisdiction for control of such impacts lies at the state level.

This lead agency dispute involves the proposed construction and operation by Empire Energy/ Niagara Cogeneration Incorporated of a 156 Megawatt generating facility which would produce steam and electricity for the Harrison Radiator Division of General Motors Corporation at Lockport, New York. Surplus electrical output would be made available for public consumption through New York State Electric and Gas Corporation. The facility is not subject to review under Article VIII of the State Public Service Law because the facility's electric generation capacity will be primarily from gas driven turbines, with less than 50 Mw of capacity provided from steam-electric equipment.

On May 19, 1988, the Town Board of the Town of Lockport ("Town Board") circulated notice to other potential involved agencies of its intent to serve as lead agency for conduct of review under the SEQR process for this proposed facility, indicating that this cogeneration plant would be sited on 15 acres in the vicinity of the Harrison Radiator Plant. The notice did not identify the exact location.

On June 2, 1987, Mayor Raymond C. Betsch of the City of Lockport ("City") initially objected to the Town's assumption of lead agency role for this project and provided information for locating the proposed facility within the City. The City subsequently withdrew these objections when further information showed the applicant's preferred site was in the Town. Also on June 2, DEC staff proposed that it assume lead agency role for this action because of substantive issues related to emissions which are of greater than local concern. Since there is no evidence of any other state or regional agency with jurisdiction over this proposed action, my consideration for lead role is limited to the Town Board and the DEC staff.

Early in June, Black and Veatch, consultants to Empire Energy/Niagara Cogeneration, Inc., the project sponsors, submitted to all potential involved agencies on behalf of the Town of Lockport, a document entitled An Environmental Report Supporting the Environmental Assessment Form for the Empire Energy-Niagara Cogeneration Project. This supplemental information clearly identifies that the site preferred by the project sponsors lies within the 515 acre Town of Lockport Industrial Park which is located immediately south and west of the Harrison Radiator Plant and abuts both the City of Lockport and Town of Cambria. The Town also has submitted copies of a 1984 draft and final generic environmental impact statement (EIS) by the Town of Lockport Industrial Development Agency (LIDA) related to the establishment of this industrial park. That EIS does not include review of the cogeneration facility, but analyzes the impacts of industrial activities and related impacts. Also included in the Town's documentation is a resolution of the Lockport Town Board, dated June 8, 1988, reaffirming intent to serve as lead agency for the conduct of review under SEQR and stating the board's intent to issue a negative declaration (i.e., a determination of no environmental significance) regarding this cogeneration project. A similar supporting resolution was adopted by the Board of Directors of LIDA on June 9, 1988.

There is some confusion with respect to the Town Board's extent of jurisdiction. They have delegated discretionary decisions related to site plan approvals within the Lockport Town Industrial Park to LIDA, but have retained certain approvals related to sewer and water permits. It is not clear whether the Town Board's retained jurisdiction is more than ministerial in nature.

The generic EIS prepared by LIDA discusses in conceptual fashion a number of separate actions (i.e., the siting and operation of industrial or commercial facilities) and associated impacts such as land use changes, drainage, provision of utilities and traffic. Subdivisions 617.15(b) and (c) of 6 NYCRR Part 617 provide for the preparation of supplements to generic EISs when "...the subsequent proposed action was not addressed or was not adequately addressed in the generic EIS and the subsequent action involves one or more significant environmental effects" [617.15(c)(3)]. The proposed cogeneration facility to be located in the Lockport Industrial Park was not addressed in the generic EIS, and may have one or more significant environmental effects, which would require preparation of a site-specific supplement covering such impacts.

Paragraph 617.8(g)(1) of the regulations clarifies that supplements to EISs should be limited to specific issues not addressed or inadequately addressed in the original EIS. Paragraph 617.6(f)(1) provides that a different lead agency may be re-established for preparation of a supplement to a generic EIS. The fact that the proposed action may require a supplement to an earlier generic EIS and that such supplement may be of limited scope and appropriately prepared by a different lead agency are relevant to my decision in this dispute, as discussed below. In addition, I must consider, in resolving a dispute over lead agency, the three criteria listed in paragraph 617.6(e)(5), in order of importance.

The first of these criteria is whether the anticipated impacts are primarily of local, regional or statewide significance. In this respect, the Town Board has already indicated that it is satisfied, on the basis of the generic EIS and the supplemental environmental assessment information provided for the cogeneration project, that the project would have no impacts of local environmental significance. Matters including land use changes, drainage, provision of sewer, water and other utilities, traffic generation and circulation all have been addressed to Town satisfaction in the generic EIS and, more specifically for the proposed cogeneration facility, in the Black and Veatch supplemental report. The Department defers to the Town as the local agency responsible for review of these issues. However, the Black and Veatch report also notes in Section 6.2.2 that air quality impacts are still being estimated and must be considered by DEC before permits to construct and operate the cogeneration facility may be issued.

DEC staff has reviewed the 1984 generic EIS as well as the EAF and Black and Veatch report for the proposed cogeneration facility. These documents have failed to identify whether there may be potentially significant impacts related to emissions of sulfur and nitrogen oxides. Also, the proposed facility's location indicates potential for acid deposition in the Adirondacks and other sensitive areas. Staff also notes that the Town's 1984 generic EIS recognized that the Niagara County Air Quality Maintenance Area is so designated because of potentials to exceed National Ambient Air Quality Standards for sulfur dioxide and total suspended particulates. DEC must approve a Prevention of Significant Deterioration (PSD) permit related to air quality, as well as certificates to construct and operate an air contamination source. Cumulative impacts with other air emission sources, including the Harrison Radiator plant must be considered, along with other factors affecting air emissions such as the extent of operations which will produce power for the utility grid, the arrangements for gas supply and interconnections and the extent of use of fuel oil. Alternatives related to facility size, methods of operation and impact mitigation need further discussion, along with noise control measures for turbines, cooling towers and gas lines, and methods for the handling and storing toxic or hazardous liquids.

The Town Board acknowledges that there are no impacts at local level which they believe to be significant. However, the fact that the cogeneration plant will be close to other municipalities and will involve considerations for air quality and noise establishes concerns at greater-than-local level which cannot be resolved by the Town. My review of the documents submitted by staff has identified several impacts related to regional and state concerns which may be significant. Although some of these impacts may have local ramifications, I conclude that impacts associated with this project are primarily of a regional and statewide nature.

The second criterion for consideration in resolving a lead agency dispute is which agency has the broadest powers for investigation of the potential impacts. Since the remaining environmental issues are primarily technical air emission and energy concerns reviewable under the authority of the Department of Environmental Conservation, the DEC satisfies this criterion far better than could any Town of Lockport agency.

The third criterion is which agency has the greatest capability to provide a thorough environmental assessment of the proposed action. LIDA has already examined, through the 1984 generic EIS, most of the local impacts of this proposed cogeneration facility. The remaining issues related to air quality could only be examined by the Town through the use of consultants. DEC has existing staff capabilities and are expert in this area; therefore, Town review would be duplicative of the review required of DEC staff during its processing of required air quality permits. As noted above, it is often appropriate to re-establish a different lead agency for conduct of site-specific supplemental reviews under SEQR.

I therefore conclude that, based on all the facts presented, the appropriate lead agency to consider the remaining potential environmental impacts related primarily to air quality associated with the proposed development of a cogeneration facility within the Town of Lockport Industrial Park is the New York State Department of Environmental Conservation staff. Because this is a supplemental review to a previously prepared generic EIS, the DEC staff should limit its considerations to those matters not covered or not adequately covered in the earlier generic EIS.

This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review the entire action and to assist the DEC staff in completion of the environmental review process.

Thomas C. Jorling Commissioner
Dated: July 29, 1988
Albany, New York

Distribution of Copies

F.D. Snyder, Supervisor, Town of Lockport
E.J. Shoemaker, Town Attorney, Town of Lockport
R.A. Albright, Building Inspector, Town of Lockport
J. McKenna, Water/Sewer Superintendent, Town of Lockport
J. Reed, Secretary, LIDA
R.C. Betsch, Mayor, City of Lockport
J.F. Kroening, Supervisor, Town of Cambria
J. Cianci, DEC, Bureau of Energy
P. Eismann, DEC Region 9
L. Chamberlain, HRD
W. Kirsch, HRD
L. Staley, Empire Energy
J. Devald, Niagara County Health Department
W. Savichky, Niagara County EMC
L.J. Nowak, Niagara County IDA
D Greenfield, NYSEG, Lockport
J. Smolinsky, NYS Dept. of Public Service
A. Harris, Black & Veatch
J. Templin, Black & Veatch

New York State Department of Environmental Conservation:

T. Jorling
L. Marsh
J. Corr
M. Gerstman
G. Bowers
R. Harvey
J. Jensen/F. Howell
J. Spagnoli
S. Doleski

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