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Lead Agency Dispute: Town Board of Southold v. Village Board of Greenport

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

PROJECT: Decommissioning of a scavenger waste facility formerly operated by the Town of Southold on land within and owned by the Village of Greenport

DISPUTING AGENCIES:Town Board of Southold and Village Board of Greenport

This decision to designate the Town of Southold Town Board (Town) as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQR) is made pursuant to Article 8 of the New York State (NYS) Environmental Conservation Law (ECL) and Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) Part 617. This decision is based on my finding that the Town has the broadest authority over the proposed action and thus is best suited to lead the environmental review. This decision does not limit the responsibilities of the Village of Greenport (Village), or other agencies, in the exercise of their own separate jurisdictions.

The project is the decommissioning of a scavenger waste facility formerly operated by the Town, with a goal of restoring the site to a near-original condition, suitable for re-use; no proposal for a future project is included within the Town's work description, nor was any identified in the Village's submissions. The site is within the boundaries of the Village and is actually owned by the Village. The Town operated the facility under a lease from the Village, and the requirement for decommissioning is generally governed by the terms of that lease.

For the decommissioning to proceed, the Town will engage a contractor who will evaluate the site to develop and undertake a specific plan for appropriate remedial, demolition (or "deconstruction"), and restoration activities to decommission the site in a manner that will leave the property in a stable, vegetated state; the Town will oversee all aspects of the contracted investigative and decommissioning work specified by the plan. The Town asserts that the only Village approval that it will need is a demolition permit, and further asserts that it is a ministerial approval not subject to SEQR. The Village asserts authority over the decommissioning work by virtue of being landowner and leaseholder as well as through holding exclusive land use and zoning authority within the Village limits. The Town and Village are the only agencies which have expressed a desire to act as lead agency for the environmental review of the proposed scavenger waste facility decommissioning.

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

  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.

In this case, there is no substantial distinction between the disputing agencies as to the first criterion. Both agencies are local entities, and the impacts discussed in their filings indeed have mainly local significance. These potential impacts are related to the on-ground activities which would be necessary for decommissioning, encompassing traffic, noise, odors, and the like; there are also indirect impacts of using other facilities to receive and treat scavenger waste. Both classes of impacts are likely to affect both Town and Village residents, therefore, there is no clear distinction between the agencies based on location of impacts.

Accordingly, I move to consider the second criterion, breadth of authority, and on this point there are clear distinctions between the two disputing agencies. The Town is responsible for directly undertaking both planning and implementation of the entire decommissioning project. The Village, as owner and lessor of the land on which the scavenger waste facility is located, must eventually accept the completed work as satisfying the lease terms, but that is a step to be taken after the work is completed, not a prior approval which can be conditioned to avoid or mitigate impacts. Additionally, while the Village asserted general land use, police, and zoning powers, it did not identify any specific local zoning or land use standards or approvals which would apply to the decommissioning project. The Village demolition permit identified by the Town is indeed one of several routine local approvals which are generally classified as ministerial (that is, not involving any exercise of discretion), and which therefore do not confer involved agency status on the issuing entity. Thus, using the second criterion of breadth of authority, the Town is the most appropriate lead agency for this proposed project because, as the direct sponsor of the decommissioning, it has the requisite authority to impose any necessary conditions at any phase of the work to avoid or minimize impacts.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both the Town and the Village possess or can contract for the expertise necessary to undertake the environmental review of the proposed project.

For the foregoing reasons and based on the facts presented, I conclude that the Town Board of the Town of Southold should be lead agency for the conduct of the environmental review for the proposed decommissioning of the former scavenger waste facility. I stress again that this decision in no way limits the jurisdiction or responsibilities of the other involved and interested agencies, and specifically note that the Village retains all of its rights as lessor. Further, should any future development be proposed for the reclaimed scavenger facility site, the Village will be able to exercise its full land use authority over that proposal.

/s/
Denise M. Sheehan, Commissioner
Dated: 7/12/06
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant:
Village Board, Village of Greenport, by Joseph W. Prokop, Esq.
Town Board of Town of Southold, by Patricia Finnegan, Esq., Town Attorney

New York State Department of Environmental Conservation:
John Pavacic, Regional Permit Administrator, Region 1 (Stony Brook)
Michael Naughton, Esq., Legal Affairs, Albany
Betty Ann Hughes, Environmental Permits, Albany


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